State v. Weeks, 91-284

• Decision Date: 18 June 1993
• Docket Number: No. 91-284,91-284
• Citation: 160 Vt. 393,628 A.2d 1262
• Parties: STATE of Vermont v. Richard WEEKS.
• Court: Vermont Supreme Court

Page 1262

628 A.2d 1262

160 Vt. 393

STATE of Vermont v. Richard WEEKS.

No. 91-284.

Supreme Court of Vermont.

June 18, 1993.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

E.M. Allen, Defender Gen., and Anna Saxman and Henry Hinton, Appellate Attys., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

The principal issue in this appeal from a conviction for sexual assault is whether allowing an expert witness to comment on the child victim's credibility and to identify the perpetrator was plain error. We hold that it was and reverse and remand for a new trial.

I.

After a bitter divorce, defendant and his ex-wife continued to struggle over his visitation with their daughter and only child. When the child resisted the visits and defendant insisted on them, the mother, on advice of counsel, sought out a psychologist, Dr. Cunningham, to determine whether the child had been sexually abused. Dr. Cunningham examined the child three times over a six-day period. Between the second and third visits, he reported to the Department of Social and Rehabilitation Services (SRS) that the child had been sexually abused. An SRS worker and a police officer interviewed the child, and defendant was subsequently charged with three counts of sexual assault under 13 V.S.A. § 3252(a)(3) for incidents of penile-vaginal contact, penile-anal contact, and digital-vaginal contact.

The child victim was six years old at the time of trial; she testified about events that had occurred when she was somewhere between two-and-a-half and four years old. With her mother sitting beside her, she was led through her testimony.

State: Did you like visiting with your daddy?

Child: No.

State: Could you tell us why you didn't like it?

Child: Because he hurt me.

State: And how did he hurt you?

Child: I don't want to tell.

State: This is the last time you have to tell, [J.W.]. Can you tell them how he hurt you? Did he hurt you on your body?

Child: (Nods head.)

State: Can you tell us where?

....

Child: Private place.

She then identified the private place (her vagina) and "what he used to touch [her] with" (his penis) by making marks on anatomically correct drawings. The court allowed these drawings "to assist in the development of the testimony. She's, obviously, very reluctant to testify again today." On cross-examination, J.W. admitted that she had previously told defense counsel that her daddy did not touch her and that this was a lie.

Defense: Do you remember telling me before ... that your daddy didn't touch you?

Child: Uh huh.

....

Defense: Okay. Was that a lie, back then, when you said that daddy did not touch you?

Child: Uh huh.

Defense: So you told a lie one time about all this?

Child: Uh huh.

The child's credibility was the central issue at trial. Defendant claimed that he had been falsely accused, that his ex-wife had fabricated the story to keep his daughter away from him. He sought to show inconsistencies in the child's story and to emphasize that she had recanted to both Dr. Cunningham and defense counsel.

The State supplemented her testimony with five additional witnesses: the child's mother and maternal grandmother, the SRS worker and the police officer who had interviewed her, and Dr. Cunningham. The child's mother testified that the child became increasingly unwilling to visit with her father, that she would get sick the night before the visits and would refuse to get dressed the next morning. The child's symptoms got worse--she had nightmares, would throw up her breakfast, refuse to get out of the car--but she would not explain why she did not want to go with her father. When the child returned from visits she did not want to take a bath and would say she did not want to be touched. When she was put in the bathtub, she would spread her legs apart and push toys into her vagina. The mother testified that she never considered the possibility that her daughter had been sexually abused. Rather, when she consulted her lawyer about whether the visits had to continue, he suggested that she take the child to a doctor to find out why she resisted the visits. The mother testified that, after telling Dr. Cunningham about the abuse, the child also told her some details about it and that her father said if she told her mother about the abuse, her mother would hate her and he would go to jail. The grandmother corroborated the child's resistance to visits with her father and her increasingly sexualized behavior during baths.

An SRS worker, Kelly Smith, testified that she notified the state police after receiving a report of sexual abuse from Dr. Cunningham and, accompanied by Sergeant Robert Vargo, interviewed the child victim. Ms. Smith stated that, after establishing rapport with the child and asking her to identify body parts, she asked the child if anyone had touched her vagina. The child responded that her daddy had. Ms. Smith related that the child, using anatomically correct drawings, showed that defendant had touched her vagina with his penis, nose, and hand. She also indicated that the child told her that she was afraid she was going to get in trouble for talking with her. Sergeant Vargo, who was present during part of the interview, corroborated Ms. Smith's account.

Dr. Cunningham was the State's final witness. He began by describing symptoms typical of sexually abused children. Anticipating an attack on the child witness's credibility, he stated that delayed reporting is not unusual, especially if the abuse occurs within the family, and that recanting is common, a "kind of a wish that ... it never happened." He explained that multiple interviewing can lead children to recant because when asked the same question a number of times, they get the message that they will not be believed and, in essence, they give up. He also stated that often the nonabusive parent will become upset at disclosure of the abuse and the child will change the story to protect that parent from further pain.

He then described his interviewing technique in great detail, particularly the use of anatomically correct pictures. First, he showed the child drawings of naked children and asked her to find one who looked like her. He then asked her to name the body parts and to mark places where she had been touched that she did not like. He then asked who had touched her and to find a drawing of a (naked) person who looked like the abuser. He then asked her to identify the part of the abuser's body that had touched her.

The testimony then moved to the key area of identifying the perpetrator. Dr. Cunningham stated that he had asked the child who had touched her and testified

Expert: Her first answer was, daddy.

State: Did you ask her any more questions, regarding who daddy was?

Expert: Yes. I was aware it was a divorce and that there was another man, Mitch, living with her and her mother. And so I asked her, is this daddy, Mitch, or daddy, Richard....

State: And what did she say?

Expert: She said daddy Ricky.

Dr. Cunningham returned to the issue of the perpetrator's identity and stated his personal opinion that the perpetrator was not Mitch:

State: And did you specifically ask about Mitch?

Expert: Yes; I did.

State: Was she clear about that as well?

Expert: She was very clear about that.... I was pressing that quite hard ... because ... there was greater access of Mitch to her than her father at the time, and I wanted to get to that issue directly.

State: But you pretty well resolved that in your mind, that [it] wasn't Mitch.

Expert: Yes, ma'am.

Because Mitch was the only other possibility raised, this remark was tantamount to Dr. Cunningham's naming the child's abuser.

Dr. Cunningham's testimony on the child's credibility cannot be easily summarized. It did not take the form of one or two isolated statements; rather, it followed the path of his own reliance on the child's word--how he came to believe her to the point that he reported abuse to SRS.

Dr. Cunningham first described his process for verifying a child victim's account of abuse. Basically, he would ask for descriptions in various different ways (pictures, dolls, questioning) and repeat this process over more than one interview, looking primarily at the level of detail and the degree of consistency. He stated that consistency is particularly important to determining whether an allegation is fabricated:

State: ... do you try to determine whether or not the child has been coached or these responses suggested to her by someone else?

Expert: Yes; I do. What I look for is a consistency between the different meetings that I have.

After relating the details of the child's first visit, Dr. Cunningham then testified that she had described the same kinds of abuse and identified the same abuser on the second visit. After the second visit, Dr. Cunningham called SRS to report abuse because "I thought I had sufficient reason to believe that [she] had been sexually abused and that consistency to identify her father as the perpetrator." In response to State questioning, he conceded that he was "mandated by law, if I even suspect sexual abuse, to report it to either the police or SRS."

Dr. Cunningham testified about the child's credibility in other ways. He testified that he knew fabrication was more likely where divorced parents were engaged in visitation disputes and that he therefore questioned the child directly about whether her mother had prompted her.

And she was real clear with me, that no, her mother did not. It did happen. That if somebody said that her mother had told her to say this to me about dad touching, that that was a lie. And again, this is a girl who I'd be hard pressed in high school to debate with this child. I found her to be rather definitive.

(Emphasis added.) In response to the State asking whether, based on his expertise,...