State v. McCarthy

• Decision Date: 22 February 1991
• Docket Number: No. 88-636,88-636
• Citation: 589 A.2d 869,156 Vt. 148
• Parties: STATE of Vermont v. John J. McCARTHY, Jr.
• Court: Vermont Supreme Court

Page 869

589 A.2d 869

156 Vt. 148

STATE of Vermont v. John J. McCARTHY, Jr.

No. 88-636.

Supreme Court of Vermont.

Feb. 22, 1991.

Jane Woodruff, Orleans County State's Atty., Newport, and Gary Kessler, Rosemary S. Hull and Pamela Hall Johnson, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Vincent Illuzzi, Orleans, for defendant at trial, Gensburg Axelrod & Adler, St. Johnsbury, for defendant-appellant on appeal.

Before ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

In this appeal from his conviction for lewd or lascivious conduct with a child, 13 V.S.A. § 2602, defendant makes numerous challenges to the admissibility of the child's videotaped testimony and the evidence to impeach his character witnesses. Although defendant failed to preserve his claims of error, we find plain error in the admission of evidence about an unrelated incident with another child and reverse the conviction and remand for a new trial.

On November 20, 1987, the child-complainant was invited to stay with the mother of a friend after she complained that her mother was beating and slapping her. While present at the friend's home, complainant told her friend's mother that "her father had touched her private parts with his hands." Thereafter, the Vermont Department of Social and Rehabilitation Services (SRS) and the Vermont State Police became involved, along with various professionals, and the complaint led to this prosecution for one count of sexual abuse during the period between June and December of 1987.

Defendant denied that the alleged incident occurred. He was supported by his ex-wife and his numerous sons and daughters. The position of the family members was that the alleged incident could not have occurred as it was reported by the complainant and did not occur.

The complainant did not testify before the jury at the trial. Instead, her videotaped testimony was admitted pursuant to V.R.E. 807 based on a finding by the trial court that requiring the child to testify would "present a substantial risk of trauma to the child." V.R.E. 807(c). In her videotaped testimony, she answered simple, direct, leading questions after failing to answer open-ended ones. She did not elaborate on any of her responses. Her rigid posture, flat affect, and soft speaking voice conveyed her anxiety. When first asked about the alleged abuse, complainant stopped answering altogether. Only after repeated solicitation did she whisper and gesture answers to the questions.

The remaining testimony from the State came from two doctors who had examined the complainant, a social worker who had interviewed and treated the complainant at the regional mental health clinic, the complainant's teacher, and her friend's mother. Defendant took the stand and, in addition presented a character defense consisting largely of testimony by his ex-wife, his sons, and his daughters. Many of these witnesses also testified to events during the period covered by the information.

Although defendant raises a number of issues on appeal, we address only one relating to the admission of certain evidence in the cross-examination of defendant's witnesses. The issue arose in the cross-examination of defendant's first witness, his daughter P.M. On direct examination, P.M., who was twenty-five years old when she testified, described her father as honest, very caring, a good father, very modest, and not obscene or seductive. Before commencing cross-examination of P.M., the state's attorney stated to the court that he had a good faith basis to believe that another of defendant's daughters, H.M., had reported to authorities that she had seen defendant have oral sex with his minor son, S.M., in 1985 and the circumstances were known to the family. He indicated that he knew of the incident because it was mentioned in local mental health agency records.

The prosecutor indicated his intent to cross-examine P.M. about this incident to determine her knowledge of it and its effect on her opinion of defendant. There was no formal objection to the questioning although defendant's counsel did express concerns that the questioning went beyond the direct examination. The prosecutor then asked P.M. whether she was aware of the report and whether it affected her opinion of defendant's character. P.M. answered that she was aware of the report but it was unfounded and did not affect her opinion of defendant.

After using the incident in this way in cross-examining one more character witness, the prosecutor changed tactics with defendant's former wife. Here, the prosecutor attempted to elicit through the witness the exact details of the reported sexual acts. The witness refused to answer, requiring the court to intervene to order her to answer at least a modified question. In the argument to the court, the prosecutor made clear that he did not believe that the report was unfounded, transmitting the opinion of a mental health worker that "[H.M.] is unlikely to make up the kind of details that she had conveyed, and that it was the very details itself that indicated that something had happened." From that point forward, his questioning showed that he believed the incident had occurred, that it had been covered up within defendant's family, and that he wanted to demonstrate this to the jury. Rather than focusing on how the report might affect the former wife's opinion of defendant's character, the prosecutor's questions probed her conduct on hearing the report and the delay between the report and the statements given to SRS. He never even asked the ex-wife what impact the report had on her opinion of defendant's character.

The issue arose again when defendant took the stand. The prosecutor asked whether defendant had ever sexually abused H.M. and then whether he had ever sexually abused his son. He cross-examined in detail on the report, insisting on the right to present the nature of the sexual conduct to the jury, and on defendant's actions in response to it. On redirect, defendant responded to the cross-examination by denying he ever abused his son. His son also testified and denied the incident.

The prosecutor made clear where he was going in his rebuttal argument to the jury:

What we began to do was ask witnesses to test their opinion.... Weren't you aware that two years ago his other daughter [H.M.] reported having seen something, reported graphic details of oral sex? Did you consider that when you were forming your opinion that Mr. McCarthy is a decent, hardworking person?

Well, yes those weren't true. They didn't pan out. We didn't believe her when it first came up. Couldn't believe it. Now, a child who is even younger than [the complainant] now ... was confronted by a family who is disbelieving the minute they hear it. She isn't questioned until a couple of months later.

For whatever reason, which is not for your concern, this is not a case about that, but at that time she doesn't talk about it. No charges are brought. Mr. Illuzzi has mentioned that. Is it surprising that a four-year-old after a couple of months with a family that doesn't believe her at all, who's later questioned, didn't report anything?

The point of this argument is clear. In the prosecutor's view, defendant's family failed to follow up on H.M.'s report and as a result H.M. failed to repeat what she saw.

Defendant argues here that the cross-examination on H.M.'s report of seeing defendant sexually abuse S.M., together with the closing argument, was improper and requires reversal. Although the law bearing on the issue before us is relatively clear, we have not examined it since we adopted the Vermont Rules of Evidence. Pursuant to V.R.E. 404(a)(1), the accused in a criminal proceeding can introduce evidence of a pertinent character trait, and when the accused does so, the prosecution can offer evidence in rebuttal. Where, as here, a character trait is not an essential element of the charge, this method of proving character is governed by Rule 405(a). That rule allows proof of character only by evidence of reputation. ¹ However, it goes on to say: "On cross-examination, inquiry is allowable into relevant specific instances of conduct." The State relies solely on this authorization to support the validity of the cross-examination evidence about the alleged report of sexual acts between defendant and his son.

The authorization to inquire about "relevant specific instances of conduct" is solely to allow impeachment of the character witness. The rationale is addressed in the leading case of Michelson v. United States, 335 U.S. 469, 479, 69 S.Ct. 213, 220, 93 L.Ed. 168 (1948). Because character is proved by reputation evidence, which is a form of hearsay, the Court noted that it was proper to cross-examine on that hearsay. It explained:

The prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well-grounded, were afloat--for it is not the man that he is, but the name that he has which is put in issue. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one's arrest, about which people normally comment and speculate.

Id. Because character can be proved only by reputation evidence, cross-examination based on specific acts has generally been limited to whether the witness has heard about the specific incident. Id. at 482, 69 S.Ct. at 221.

The authorization to use evidence of specific instances of conduct is limited because such evidence can have a much greater impact on the jury than reputation or opinion evidence. See Advisory Committee's Note to Fed.R.Evid. 405(a) ...