State v. Valley

• Decision Date: 31 March 1989
• Docket Number: No. 83-534,83-534
• Citation: 571 A.2d 579,153 Vt. 380
• Parties: STATE of Vermont v. Janet VALLEY.
• Court: Vermont Supreme Court

Page 579

571 A.2d 579

153 Vt. 380

STATE of Vermont v. Janet VALLEY.

No. 83-534.

Supreme Court of Vermont.

March 31, 1989.

Mandate Stayed April 14, 1989.

Motion for Reargument Denied May 23, 1989.

Stay of Mandate Dissolved Dec. 29, 1989.

Philip H. White, Orleans County State's Atty., and Gary J. Karpin, Deputy State's Atty., Newport, for plaintiff-appellee.

Martin and Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

DOOLEY, Justice.

Defendant appeals her conviction for manslaughter, 13 V.S.A. § 2304, in the death of her infant daughter. We affirm.

On June 25, 1981, Jordan Lee Valley, a seven month old infant, was found dead in defendant's home. After an autopsy, the medical examiner determined that the cause of the child's death was asphyxiation due to vomit in her air passages. The autopsy also revealed a blood alcohol level of 0.114% ethanol weight by volume. ¹ The medical examiner who performed the autopsy concluded--and later testified--that the ingestion of alcohol "almost certainly produced the vomiting problem that led to the vomitus being aspirated into the lungs." In addition to the presence of alcohol, there were a number of other conditions that, according to the doctor, were possible factors in Jordan's death.

Indications from the autopsy were that Jordan was the victim of protracted child abuse. The examining physician observed: a hemorrage on the child's brain; chips on all her teeth; bruises and lacerations about her face, head, and neck; a large first, second, and third degree burn over the child's right hip, thigh, lower leg, and genitalia; numerous other bruises and puncture-type marks; several fractured ribs; a fractured right elbow; several "chipped fractures" of the leg; and fractures of the skull on the right side and the back. The degree of healing of these injuries--for all of which no medical attention was provided-- ranged from several days to a number of weeks. But some eluded placement in a time frame. Also, a failure to thrive was indicated by the fact that Jordan, whose birth weight was in the fifty-seventh percentile on growth charts, was only in the third percentile at the time of her death. Chemical tests indicated that she was suffering from dehydration and malnutrition at the time of her death. Bacteria--Staphylococcus and streptococcus--were discovered in her blood and spleen. She showed signs of bronchial pneumonia, which testimony indicated was probably caused by the aspiration of vomit over a period of time.

The medical examiner concluded that the accumulation of these injuries contributed to Jordan's death in two ways. First, they could have caused the child to go into a state of shock leading to vomiting. Second, "the injuries would have resulted in a weakened ... unhealthy child who could not then cope with the added ingestion of alcohol and made the child more vulnerable to the vomiting that resulted in death."

In August of 1981, the State filed a two count information charging defendant with child abuse, 13 V.S.A. § 1304, and manslaughter, 13 V.S.A. § 2304. On October 9, 1981, defendant filed notice of her intent to raise the insanity defense under V.R.Cr.P. 12.1(a). The information was amended in July of 1982. And the case went to trial on the amended information, which charged in two counts as follows:

COUNT I: [Janet D. Valley] recklessly and wantonly engag[ed] in conduct, to wit: being the natural mother and having custody, charge and care of Jordan Lee Valley, a human being, DOB: 12/2/80, and therefore having a duty to care for Jordan Lee Valley, failed to obtain appropriate medical care and treatment for said child, which conduct involved a high degree of risk of death or serious bodily injury to Jordan Lee Valley and did as a result thereof unlawfully cause the death of Jordan Lee Valley, all in violation of 13 V.S.A. § 2304....

COUNT II: [Janet D. Valley] [b]eing a person over the age of sixteen years old, to wit: 18 years old, having the custody, charge and care of a child under ten years of age, to wit: Jordan Lee Valley, DOB: 12/2/80, did then and there willfully ill treat and neglect said child in a manner to cause such child unnecessary suffering and endanger her health, all in violation of 13 V.S.A. § 1304....

The case was tried to a jury from June 28 through July 9, 1983. The two counts of the information were presented as alternative charges, and the jury returned a verdict finding defendant guilty of manslaughter as charged in the first count of the amended information. Because of this verdict the second count was dismissed.

On appeal, defendant raises seven issues. First, she claims that she was prejudiced by the wrongful admission of testimony tending to demonstrate that she fit the "profile" of a child abuser, while, at the same time, improperly attacking her insanity defense. Second, defendant alleges that the trial court erred in denying her motion for acquittal on Count I at the close of the State's evidence. Third, defendant contends that the trial court committed constitutional error by preventing her from calling for evidence in her favor. Fourth, she argues that the trial court improperly allowed the admission of testimony in violation of her physician-patient privilege. Fifth, she claims that the trial court erred in permitting testimony by a State appointed psychiatrist about the alleged offense underlying the examination. Sixth, she contends that the jury instructions were confusing and misleading. And, last, defendant argues that the trial court's instructions to the jury removed an essential element of the charged offense from jury consideration. We address each of these arguments in the order they are raised.

In her first argument, defendant contends that a part of the testimony of the District Director of the Vermont Department of Social and Rehabilitation Services in Newport was improperly admitted. The Director testified as an expert witness on child abuse that the "findings" in the literature on child abuse are that "the incidence of mental illness is no greater among child abusers than it is in the general population." This testimony was based on the witness' familiarity with the literature. Defense counsel objected to this testimony on numerous grounds. On appeal, defendant argues that the testimony was inadmissible because it is irrelevant and prejudicial to the defendant. ² We find that the evidence was admissible.

The evidence can create a ground for reversal only if it was inadmissible either because it was irrelevant or because its probative value is substantially outweighed by the danger of unfair prejudice. See V.R.E. 401, 402, 403. Defendant first argues that it is irrelevant because it is res inter alios acta, that is, the evidence is not about acts or events involved with this case. Defendant finds some support for this position in State v. Percy, 146 Vt. 475, 507 A.2d 955 (1986), a case in which we found inadmissible certain alleged "profile or syndrome evidence." Percy involved a rape prosecution in which defendant's sanity was the main issue and defendant claimed that he had no memory of the sexual assault. The prosecution elicited from its psychiatric witnesses that rapists typically claim either consent or amnesia. This Court found that the testimony was not profile evidence since it "in no way concerns a physical, emotional, or mental condition" that could support a profile diagnosis. 146 Vt. at 483, 507 A.2d at 960. Instead, the Court found it to be a direct attack on defendant's credibility intended to show the jury that defendant must be lying if he claimed amnesia. Thus, we found irrelevant what other rapists give as defenses. Id. at 484, 507 A.2d at 960.

Percy does not stand for the proposition that evidence that reflects research on the characteristics of persons in a certain position is irrelevant. That reading of Percy was clearly rejected in State v. Catsam, 148 Vt. 366, 369-70, 534 A.2d 184, 187 (1987), where we allowed evidence of "a profile of a child who has been sexually abused [including] both emotional and physical characteristics." Thus, Catsam necessarily answers the argument that the testimony here must be irrelevant because it is not about the defendant and her mental condition but is instead about others.

Vermont has adopted the federal rule on relevance. See V.R.E. 401. It contains a broad definition of relevant evidence to include evidence "having any tendency" to make the existence of a fact of consequence to the action more or less probable. See Reporter's Notes to V.R.E. 401. The State's theory of relevance is that the evidence dispells what could be a myth that someone who would abuse a child must not be sane. Thus, the argument that the testimony is relevant is similar to the argument that we adopted for profile evidence in Catsam--that it will help the jury understand the evidence. See Catsam, 148 Vt. at 369, 534 A.2d at 187. The evidence meets the test of V.R.E. 401. See generally McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Or.L.Rev. 19, 79-81 (1987).

Because the evidence is offered as expert testimony, it must also meet the requirement of V.R.E. 702--that the testimony of the witness will "assist the trier of fact to understand the evidence or to determine a fact in issue." ³ Again, compliance with the rule is shown in Catsam. 148 Vt. at 371, 534 A.2d at 188. Just as the syndrome evidence introduced in Catsam helped the jury understand the evidence bearing on whether the victim had been sexually assaulted by the defendant, the evidence here helped the jury understand the interrelationship of sanity and child abuse. It met the V.R.E. 702 test.

The more difficult question for us is whether the evidence fails the balancing test of V.R.E. 403 because its probative value is substantially...