State v. Wetherbee

• Decision Date: 03 May 1991
• Docket Number: No. 89-633,89-633
• Citation: 594 A.2d 390,156 Vt. 425
• Parties: STATE of Vermont v. Lee A. WETHERBEE.
• Court: Vermont Supreme Court

Page 390

594 A.2d 390

156 Vt. 425

STATE of Vermont v. Lee A. WETHERBEE.

No. 89-633.

Supreme Court of Vermont.

May 3, 1991.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Wool, Murdoch & Hughes, Burlington, for defendant-appellant.

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

MORSE, Justice.

The principal issue in this appeal from a conviction for lewd or lascivious conduct with a child, 13 V.S.A. § 2602, is whether an examining psychologist's testimony about the child's account of how the crime happened, and who did it, was harmless error. The testimony was an impermissible expert opinion that the child-victim was believable. The error was sufficiently prejudicial to require reversal of the conviction, and accordingly we remand for a new trial.

I.

Defendant was alleged to have fondled the genitals of his then three-year-old daughter while she was visiting him after her parents' divorce. The State's first witness, a clinical psychologist, testified about symptoms commonly exhibited by child victims of sexual abuse, gave his opinion that the child had suffered a traumatic experience, and then repeated in detail the child's statements to him as the basis of that opinion.

This set the stage for the child's testimony about how the abuse occurred. Her entire testimony on the incident was less than two transcript pages, consisting of short answers to leading questions posed by the State.

State: Did anything bad ever happen when you went to visit your Daddy?

Child: Mm-hmm.

State: Can you tell me what happened?

. . . . .

Child: He touched me.

State: Where did he touch you?

Child: My bum.

State: Did you like that?

Child: No.

. . . . .

State: When your Daddy touched you, do you remember where you were?

. . . . .

Child: At his house.

. . . . .

State: Did you tell your Mommy about what happened?

Child: Yes.

State: And why did you tell your Mommy?

Child: 'Cause it wasn't good.

She was then asked to identify "Daddy" and pointed to defendant.

The remainder of the State's case consisted of testimony by a social worker, who testified that she had investigated the charge and passed on information to the state's attorney, and the child's mother. The mother testified that the child had been "very upset and clinging to [defendant] and looked very scared" when she returned from a visit to defendant's house. She testified that, a few days later, while giving the child a bath, she discovered that the child's vaginal area was "very red and irritated." She then recounted how the child told her about the alleged abuse.

I was washing her vaginal area and she said to me: "Mommy don't hurt me."... I said: "Who would ever hurt you?" And she said that "Daddy does.... Daddy puts his fingers inside my bummy and he hurts me."

Thus, the State's case-in-chief relied upon the sparse testimony of the child, who was three years and ten-and-a-half months old when the abuse allegedly occurred and four years and eleven months old when she testified. That testimony was supplemented with the psychologist's and mother's recounting of the child's story.

Defendant objected to the psychologist's testimony in two pretrial motions and during the course of the trial on the grounds that it constituted inadmissible hearsay. Before the expert's testimony was presented, the court cautioned the jury to restrict the use in their deliberations of the victim's statements to the expert. They were asked to be "very, very, careful" and told to use the testimony for "one purpose, and one purpose only"--as the basis of the expert's opinion--not as evidence of whether the abuse occurred or whether the child was telling the truth. The court concluded the instruction by telling the jury, "I realize it's a difficult task, and it's the kind of thinking we don't normally do every day, but we have to do it here." The State proceeded with questioning:

State: Doctor, during your clinical interview of [the child], did [she] go on to make any statements to you about problems she had had or was having?

Expert: Yes, she did.... I asked if anyone ever hurt you, and she didn't answer but with a nod of her head that looked to me to be yes. I asked her did anyone ever touch you in a not nice way. She was silent there ... I asked then about a number of people in the family. Did Daddy ever touch you in a not nice way?

State: Was she able to respond?

Expert: She said, "Yes."

State: What did she tell you?

Expert: ... I asked her ... where had Daddy touched you? She said: "On the bum."

. . . . .

State: Did she tell you where she was when this happened?

. . . . .

Expert: It was at the house, her father's house, her daddy's house. May I make a distinction of daddy she uses?

At this point the defense again objected, maintaining that the testimony was going beyond the expert's opinion of whether the victim had been traumatized and instead was focusing on who the perpetrator was. The court allowed questioning to proceed to clarify which father, the genetic father or the stepfather, was being referred to. The testimony continued, and the expert identified defendant as the perpetrator:

State: Dr. Rightmyer, did [the child] identify who Daddy was?

. . . . .

Expert: Daddy. Daddy was Lee.

The court allowed this testimony despite the State's acknowledgment that its purpose was to clarify the identity of the child's abuser and respond to defendant's reliance on a misidentification defense, that is, that the child had been abused by her stepfather, not defendant.

The child's credibility was the central issue at trial. Several of defendant's relatives testified that the child frequently lied. Defendant's live-in girl friend stated that she was working at home on the day of the alleged incident, that she could see into the child's bedroom from her desk, and that the abuse never occurred. Defendant's mother, who was extremely close to defendant's ex-wife, alleged that the ex-wife had told her she was considering fabricating an abuse charge in order to gain full custody of the child. A medical doctor testified that the child's vaginal irritation could have been caused by the recurrence of a yeast infection for which he had treated the child several times. In addition, there was considerable controversy about the child's description of her body. For example, defendant and his girl friend testified that the child referred to both her anus and her vagina as her "bummy," while several witnesses for the State asserted that she used the term only when referring to her vagina. On the key issue of the abuser's identity, several witnesses for the State testified that the child referred only to defendant as "Daddy," while those appearing for defendant, mostly relatives, said that the child used the word "Daddy" to refer to both her father and her stepfather. On rebuttal, after the defense had attacked the child's credibility with statements by defendant's relatives that she frequently lied, the State called a baby-sitter and a teacher to testify about the child's truthfulness.

II.

The State concedes that the psychologist's account of what the victim told him during his examination of her was error under our recent decision in State v. Gokey, 154 Vt. 129, 574 A.2d 766 (1990). There we stated:

While [experts] may state that the complaining witness exhibits symptoms typical of sexually abused children, [they] may not ... go so far as to conclude that the witness is a victim of sexual abuse.... [Expert] testimony, beyond a limited description of the profile and the opinion that the child's behaviors [are] consistent with that profile, [is] inadmissible under V.R.E. 702.

Id. at 134, 140, 574 A.2d at 768, 772. The expert's testimony went well beyond these limits. Nonetheless, the State argues that admission of this testimony was harmless, maintaining that, when the "error is merely of an evidentiary rule," the standard of review requires the defendant to demonstrate "prejudice sufficient to overcome the jury's verdict." State v. Jarvis, 145 Vt. 8, 14, 482 A.2d 65, 69 (1984). We need not decide the standard-of-review issue, however because even under the more relaxed standard we are not persuaded the error was harmless.

Demonstrating harmless error in this case even under the lesser standard is a formidable task. The trial judge, who was in a far better position to weigh the prejudicial impact of the evidence than we are, stated that, had he been on the jury, he would have voted for acquittal. We do not need to rely on the trial court's assessment, however, to conclude that the expert's inadmissible testimony prejudiced defendant sufficiently to require another trial.

A.

Mental health professionals are currently engaged in debate about the limits of their expertise in child abuse cases. Myers, Bays, Becker, Berliner, Corwin & Saywitz, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb.L.Rev. 1, 4 n. 4 (1989). The profession has expressed significant doubts about its capacity to make reliable credibility determinations:

Behavioral scientists have ... recognized that determining the credibility of a child sexual abuse complainant is not a task for which they are particularly well equipped ... [and] that they have no particular expertise in evaluating the credibility of a child sexual abuse complainant.

McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions, 77 J.Crim.L. & Criminology 1, 44 (1986). A recent national research project, led by the Association of Family and Conciliation Courts and the ABA Center for Children and the Law, concluded "that in many cases, no amount of expertise will determine if sexual abuse has occurred.... There is no litmus test for child sexual abuse." Myers, Allegations of Child Sexual Abuse in Custody and Visitation Litigation, 28 J.Fam.L. 1, 31 (1989-90).

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