State v. Parker, 83-536

• Decision Date: 04 March 1988
• Docket Number: No. 83-536,83-536
• Citation: 149 Vt. 393,545 A.2d 512
• Parties: STATE of Vermont v. John H. PARKER, Jr.
• Court: Vermont Supreme Court

Page 512

545 A.2d 512

149 Vt. 393

STATE of Vermont v. John H. PARKER, Jr.

No. 83-536.

Supreme Court of Vermont.

March 4, 1988.

Kevin G. Bradley, Chittenden County State's Atty., and Robert Andres, Deputy State's Atty., Burlington, for plaintiff-appellee.

James W. Murdoch and Richard C. Bothfeld of Wool & Murdoch, Burlington, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, ¹ JJ.

PECK, Justice.

Defendant, John H. Parker, Jr., appeals a decision of the district court convicting him of two counts of sexual assault in violation of 13 V.S.A. § 3252, and one count of lewd conduct with a minor in violation of 13 V.S.A. § 2602. We affirm.

On appeal, defendant claims (1) that the trial court erred in its treatment of his motion in limine to limit the State's offer of certain prior "bad acts"; (2) that the trial court admitted certain expert testimony in violation of his patient's privilege; (3) that the trial court erred by allowing juror questions during trial; (4) that the prosecutor indulged in prejudicial misconduct and overkill during the course of the trial; (5) that the trial court abused its discretion when it denied his motion for a mistrial; (6) that the trial court erred by rejecting a pretrial plea agreement; and (7) that the trial court imposed an excessive sentence.

On February 17, 1983, the state's attorney filed an information charging defendant with sexual assault. This information was subsequently amended to charge the offenses for which he was ultimately convicted as set forth in the first paragraph above, all allegedly committed against J.P., a minor under the age of sixteen who was the second in age of three male juveniles domiciled in defendant's home.

The jury returned a verdict of guilty; defendant's motion for a new trial and for a stay pending appeal were denied. The court imposed a combined sentence of 12 to 45 years. We discuss the issues raised seriatim.

I.

Shortly before trial defendant filed a motion in limine seeking to prohibit the introduction of evidence that he had also sexually assaulted D.P., the older brother of J.P. He maintained that this evidence was either inadmissible under V.R.E. 404(b) or, in the alternative, that the evidence was unfairly prejudicial and confusing and should be excluded under V.R.E. 403. In arguing that the evidence was admissible under the exceptions contained in 404(b), the State reasoned that evidence of assaults by defendant against D.P., in conjunction with a statement allegedly made by defendant to the older boy, ² tended to demonstrate a continuing plan of sexual assaults, a motive for similar acts against J.P., and defendant's intent to gratify his illicit cravings through the conduct with which he was charged, regardless of the victim.

The court ruled initially that sexual activity between defendant and D.P. would be admitted to explain defendant's statement to the boy. Nevertheless, the court ruled further that admissibility would be restricted to the thirty-day period preceding the alleged statement. The court warned, however, that if defendant put his character in issue (see V.R.E. 404(A)(1)) or, specifically, as the trial judge phrased it, he claimed "I'm not that kind of guy," it would "open the door" for further rebuttal testimony of his activity with D.P.

During the course of a lengthy and searching cross-examination, the prosecutor questioned defendant as to why J.P. was the only one of the children who slept on a cot in his room. Defendant responded that J.P. asked that he might do so, and that if any of the others had asked, they would also have been permitted to sleep there. He testified that he saw nothing wrong with the boys sleeping in his room, and concluded with the assertion "I am not perverted." As a consequence of this declaration, the court ruled that the quoted statement put defendant's character in issue, expanded its thirty-day limitation, and permitted the State to introduce evidence of defendant's conduct with D.P. during a one-year period.

We recognize that both under the common law and V.R.E. 404 the admission of evidence offered by the State, relating to the character of the accused in a criminal case, "for the purpose of proving that he acted in conformity therewith on a particular occasion," V.R.E. 404(a), is severely restricted. However, there are limited exceptions. One of these exceptions allows the introduction of such evidence by the prosecution to rebut "[e]vidence of a pertinent trait of his character offered by an accused." V.R.E. 404(a)(1), and see Reporter's Notes to V.R.E. 404 generally, including cases cited.

A second exception, described by the prosecutor in arguing for the admissibility of evidence relating to the relationship between D.P. and defendant, is set forth in V.R.E. 404(b). Although that rule generally excludes "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show that he acted in conformity therewith," it also provides that such evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation [and] plan ...."

It appears that the court's initial ruling was based on V.R.E. 404(b), while its ruling, expanding the time period to rebut defendant's own express assertion of a relevant character trait, relied on 404(a)(1).

Rule 404 echoes the common law which preceded it. The rules of evidence were adopted and promulgated in December, 1982, and became effective April 1, 1983. The events which gave rise to the charges in this case occurred in "May-June 1981" and in July and December of 1982. Prior to the effective date of the rules, this Court stated:

As a general rule, courts do not allow parties to prove that a person did the thing in question by proving that he or she had in the past done a similar thing.

State v. Patnaude, 140 Vt. 361, 370, 438 A.2d 402, 405 (1981). However, exceptions were also recognized if there is "a necessary or probable connection between the two." Id. at 371, 438 A.2d at 406. In another case, this Court stated:

Such evidence may be admissible, however, to show motive, intent, knowledge, a plan or purpose, or preparation, leading up to or connecting the defendant with the commission of the offense charged, even though it involves proof of a distinct crime.

State v. Ryan, 135 Vt. 491, 497, 380 A.2d 525, 529 (1977) (citations omitted).

The principle in V.R.E. 404(a)(1), granting the right to rebut evidence of a pertinent character trait offered by a defendant, is also recognized at common law:

"A respondent in all criminal cases is entitled to the privilege of putting his character in issue. If he offers evidence of his good character the prosecution can rebut it; and the jury have the right to give it such weight as they think it is entitled to."

State v. Hedding, 114 Vt. 212, 214, 42 A.2d 438, 440 (1945) (quoting State v. Daley, 53 Vt. 442, 446 (1881)). In the same case, however, this Court cited the caveat that the specific character trait must relate to the act charged, "otherwise it would not be relevant and therefore not admissible." Id. at 214-15, 42 A.2d at 440 (citing 1 Wigmore on Evidence § 59, at 128; State v. Emery, 59 Vt. 84, 89-90, 7 A. 129, 131-32 (1886)).

It is clear that evidence offered by the prosecution which addresses the character of an accused in a criminal case may be admissible for impeachment and for certain other purposes under V.R.E. 404 as well as our common law. Our next task, therefore, is to address the test to be applied in reviewing the trial court's admission of such evidence in the case before us. This test requires us to undertake the two-part inquiry described in State v. Picknell, 142 Vt. 215, 454 A.2d 711 (1982), in which we said:

First, we must decide whether the admitted evidence was both relevant and material to the subject cause of action. If so, our second consideration is whether the introduction of such evidence was so prejudicial to defendant as to outweigh its probative value.

Id. at 230, 454 A.2d at 718.

A.

There can be no reasonable doubt that the testimony of D.P. was relevant and material in that it tended to rebut defendant's statement, "I am not perverted," which involved a "specific trait related to the act[s] charged." Hedding, 114 Vt. at 214, 42 A.2d at 440; V.R.E. 404(a)(1).

Moreover, while it is true that the mere fact of defendant's prior conduct with another male juvenile, standing alone, would not be sufficient, any more than would prior acts of burglary by an accused be legally relevant under most circumstances to prove that he committed a later burglary, see the general rule quoted above from Patnaude, 140 Vt. at 370, 438 A.2d at 405, the situation here is not the same.

Unlike those cases contemplated by the general rule, there is a clear connection, a nexus, between the two series of sexually inspired actions, first against D.P., and later against J.P. Defendant took advantage of their common domicile, and the youth of D.P., to carry out a clandestine and furtive course of conduct with the older boy. This he did for a substantial period of time, until the maturing youth himself indicated his unwillingness to continue. Thereupon, defendant turned to the younger boy, J.P., seeking and finding, for a time, another source for the same gratification of his illicit appetite, under the same domiciliary circumstances; circumstances offering the same opportunities with at least a minimal risk which could not be assured had he gone more widely into the community at large.

These factual elements satisfied the exception to the general rule. They tended to show defendant's motive for his assaults on J.P.: his desires continued unabated, and his prior source of gratification had come to an end. Similarly, they tend to show his intent and his plan: to continue his course of conduct; the victim was immaterial, as such. Finally, the common domicile of defendant...