State v. Percy

• Decision Date: 10 January 1986
• Docket Number: No. 82-011,82-011
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Robert Lyle PERCY.

Page 955

507 A.2d 955

146 Vt. 475

STATE of Vermont v. Robert Lyle PERCY.

No. 82-011.

Supreme Court of Vermont.

Jan. 10, 1986.

Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Steve Norten, Law Clerk (on Brief), Montpelier, for plaintiff-appellee.

David W. Carpenter and Henry Hinton, Appellate Defenders, Montpelier, for defendant-appellant.

Before ALLEN, C.J., HILL, GIBSON and HAYES, JJ., and DALEY, J. (Ret.), Specially Assigned.

HILL, Justice.

The defendant, Robert Percy, was convicted after a trial by jury of sexual assault in violation of 13 V.S.A. § 3252. The court, after entertaining defendant's post-trial motions, entered judgment on the verdict. On appeal, defendant claims that the combined error of (1) the prosecutor's improper remarks in closing argument; (2) the trial court's decision to admit certain expert testimony; and (3) the trial court's confusing and misleading jury instructions denied him his right to a fair trial. We reverse.

On the evening of December 7, 1980, the complainant was driving south on Route 12 between Elmore and Worcester. She was driving slowly due to a snow storm and she stopped abruptly when the defendant jumped in front of her car. The defendant entered the complainant's car and forced her to drive to an isolated dead-end road where he sexually assaulted her. The complainant then drove back to Route 12, pursuant to the defendant's instructions, and the defendant left her car.

The defendant, when questioned by police, claimed no recollection of the event. At trial, he relied on an insanity defense, a condition which he attributed to his combat experience in the Vietnam War.

I.

In State v. Billado, 141 Vt. 175, 183, 446 A.2d 778, 783 (1982), we stated that reversal would be warranted in cases where the prosecutor, in closing argument: (1) disparaged the insanity defense as a concocted scheme to escape justice; and (2) suggested that the defendant would go free if the jury found him not guilty by reason of insanity. Both these elements, accompanied by timely objections, are present here. ¹

The prosecutor's "let him go" remark was concededly somewhat ambiguous. The defendant never formally withdrew his consent defense, and the remark could be interpreted as referring to a simple not guilty verdict. Nevertheless, the defendant principally relied on an insanity defense, and the obvious implication was that the defendant would be released if the jury accepted his insanity defense. The comment was thus improper.

The defendant contends that the resulting prejudice could only be cured by an instruction on the procedural consequences of an insanity verdict. We do not agree.

In State v. Smith, 136 Vt. 520, 526, 396 A.2d 126, 129 (1978), we noted that the decision to charge the jury on the dispositional consequences of a not guilty by reason of insanity verdict was "troubled ground, fraught with both the high probability of error and subject to that kind of adversarial manipulation [that could be] characterized as 'wiley'...." Accordingly, we declared "a return to the more solidly founded rule that the disposition after verdict is for the court, and is not to be charged to the jury." Id.

The defendant maintains that Smith is distinguishable because the prosecutor's comment created a misapprehension in the jurors' minds about the consequences of an insanity verdict and that, under these circumstances, courts should be required to give the requested instruction. The impropriety here, however, consisted of a single comment. The prosecutor did not repeatedly stress that an insanity verdict would cause defendant to be set free or otherwise repeatedly prey on the jury's fears. Compare Commonwealth v. Killelea, 370 Mass. 638, 648-49, 351 N.E.2d 509, 515 (1976) (defendant entitled to instruction on consequences of a verdict of not guilty by reason of insanity where prosecutor repeatedly stated that defendant would be set free). In short, we do not believe that the prosecutor's comment was so prejudicial that, absent an instruction on the dispositional consequences of an insanity verdict, a new trial is automatically required, particularly where, as here, the effects of the error were mitigated by instruction. See United States v. Jackson, 542 F.2d 403, 411 (7th Cir.1976) (passing reference to defendant walking out of courtroom held insufficient to require reversal where trial court instructed jury to disregard question of possible punishment or treatment).

Improper remarks in closing argument can in many cases be corrected by curative instructions. See, e.g., State v. Slocum, 132 Vt. 476, 479-80, 321 A.2d 51, 54 (1974). "[A] strongly worded and prompt admonition is preferred ...," State v. Normandy, 143 Vt. 383, 386, 465 A.2d 1358, 1360 (1983); however, "[t]he circumstances of each case must govern its merits. The final inquiry is whether the defendant's rights were so injuriously affected as to deprive him of a fair trial." State v. Foy, 144 Vt. 109, 116, 475 A.2d 219, 224 (1984).

Upon proper objection, the trial court in this case specifically instructed the jury that the dispositional consequences of an insanity verdict were not for their consideration. ² "In the absence of an affirmative showing to the contrary, we assume that the instruction was not ignored by the jury and that the prosecutor's statement was disregarded." Foy, supra, 144 Vt. at 117, 475 A.2d at 224. Nevertheless, the court nowhere addressed the defendant's objection to the prosecutor's disparaging remarks about the defendant's insanity defense as it considered them to be fair comment on the evidence.

In Billado, supra, 141 Vt. at 183, 446 A.2d at 783, we noted that a fabrication argument in response to an asserted insanity defense "may or may not be inflammatory depending on the facts of the particular case...." In that case, no one saw the defendant ingest the drug, and the defense psychiatrist's conclusion that he suffered from a drug induced delirium was based entirely on what the defendant told him. Id. Since "there was evidence that the defendant may not have been completely truthful with the psychiatrist," we found the State's fabrication argument to be "neither inflammatory nor prejudicial." Id.

Notwithstanding the State's contentions to the contrary, this case is clearly distinguishable. In this case, the State stipulated to the fact that the defendant suffered from post traumatic stress syndrome (PTSD). Although the history of the defendant's trauma in Vietnam was entirely self-reported, the defendant's experts based their PTSD diagnosis in large measure on material derived from their interviews with the defendant while he was under the influence of sodium amytal. While the State remained free to argue that the amytal procedure was flawed or that the defendant was not suffering from a PTSD flashback on the night in question, the record here, as in State v. Lapham, 135 Vt. 393, 407, 377 A.2d 249, 257 (1977), "discloses a studied purpose to arouse the prejudices of the jury by establishing a pattern that raising a legitimate defense of insanity was a mere attempt to escape justice." Such a line of argument can not be characterized "as merely commenting on the evidence." Id. It was improper and prejudicial, and it should have been addressed by the trial court upon defendant's timely objection to preserve his right to a fair trial before an impartial jury.

II.

While we may have been persuaded that the inflammatory nature of the prosecutor's improper remarks was not so prejudicial as to warrant reversal, see Billado, supra, 141 Vt. at 183, 446 A.2d at 783, we cannot ignore the impact of this error when it is reviewed in light of the trial court's decision to admit certain irrelevant and prejudicial testimony.

Briefly stated, the defendant claims that the trial court violated the evidentiary rule that res inter alios acta--that is, the acts and declarations of strangers to the parties to the action--is competent as evidence. Specifically, he objects to testimony, elicited by the prosecutor, that rapists typically claim either consent or amnesia. ³ The defendant maintains that, by making both claims himself, he was improperly associated with rapists generally and that such association impeached his credibility and undermined his insanity defense.

The State argues in response that the defendant (1) waived any claim of error by failing to specify the nature of his objection and by failing to renew his objection; and (2) opened the door to such testimony by introducing evidence on the subject in the first instance. It contends further that the testimony is profile or syndrome evidence which is more probative than prejudicial and admissible in any event under V.R.E. 401. ⁴

The State's first argument is without merit. The defendant objected to the testimony on grounds of "overbroad generalities, no specific application to this case." This objection was sufficient to preserve the issue of relevance for appeal. See V.R.E. 103(a)(1) (timely objection or motion to strike must appear on the record, "stating the specific ground of objection, if the specific ground was not apparent" from the context). Moreover, V.R.Cr.P. 51 explicitly provides that a "[s]ubsequent objection to the same legal point" is unnecessary. Thus, defendant did not waive his objection by failing to take exception to the testimony of the State's third expert.

Nor can it be said that the defendant opened the door to the testimony objected to. It has been stated that:

[t]he [doctrine of curative admissibility] operates to prevent [one party] from successfully gaining exclusion of inadmissible ... evidence and then extracting selected pieces of this evidence for his own advantage, without the [opposing party's] being able to place them in their proper context.

United States v. Winston, 447 F.2d 1236, 1240-41 (D.C.Cir.1971). Since the purpose of the rule is to allow the other party to explain or meet the...