State v. Wigg

• Decision Date: 06 October 2005
• Docket Number: No. 03-501.,03-501.
• Citation: 2005 VT 91,889 A.2d 233
• Parties: STATE of Vermont v. Donald J. WIGG.
• Court: Vermont Supreme Court

Page 233

889 A.2d 233

2005 VT 91

STATE of Vermont v. Donald J. WIGG.

No. 03-501.

Supreme Court of Vermont.

July 29, 2005.

Motion for Reargument Denied October 6, 2005.

David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

Kimberly B. Cheney of Cheney, Brock & Saudek, P.C., Montpelier, and Jeffrey C. Kestenband and William H. Paetzold of Moriarty Paetzold & Babcock, L.L.C., Glastonbury, CT, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. DOOLEY, J.

Defendant, Donald Wigg, appeals a jury conviction for lewd and lascivious conduct. He claims that: (1) his constitutionally-based presumption of innocence was violated when the trial court permitted a police detective to repeatedly refer to the complainant as the "victim" during testimony; (2) the trial court abused its discretion in excluding testimony from his expert witness on how the interviews of the complainant failed to satisfy the scientifically-suggested protocol for best ensuring accurate interview responses; and (3) he is entitled to acquittal because the jury's verdict convicting him of lewd and lascivious conduct, while acquitting him of sexual assault, is inherently inconsistent. While we find the trial court erred in permitting the police detective to refer to the complainant as the "victim" and in categorically excluding defense expert's case-specific testimony, we hold both errors to be harmless. Additionally, we find no inconsistency in the jury's verdicts. We therefore affirm the trial court's decision.

¶ 2. In late January 1999, complainant B.M.Y., an eleven-year-old female, accompanied defendant, a thirty-five-year-old male, on a weekend ski vacation from their home state of Connecticut to Mount Snow in West Dover, Vermont. At the time, defendant's brother was dating complainant's mother, and the two families had recently taken a ski vacation together. On this occasion, complainant's mother permitted her to accompany defendant alone. Complainant testified that she took a shower after she and defendant arrived at Mount Snow late in the day. After her shower, she claims that defendant removed her towel, rubbed lotion on her back and legs, and opened her vagina with his fingers and stuck his tongue inside her vagina. Later that same night, after watching television and going to bed, she further alleges that defendant unzipped her pajamas and sucked on her breasts.

¶ 3. B.M.Y. did not tell anyone about the incidents at Mount Snow until September 2000, when her mother's new boyfriend confronted her after becoming suspicious that something inappropriate had occurred between B.M.Y. and defendant. After B.M.Y. disclosed the details of the trip to her mother's boyfriend, he reported the incident to the Connecticut State Police. Trooper Francis Budwitz responded to the complaint and conducted an initial interview of B.M.Y. After finding the alleged assault occurred in Vermont, he turned the investigation over to Detective Rich Werner of the Dover, Vermont police department. Detective Werner traveled to Connecticut and interviewed the complainant on two separate occasions in late 2000.

¶ 4. The State charged defendant with lewd and lascivious conduct with a minor in violation of 13 V.S.A. § 2602 for sucking on complainant's breasts and with sexual assault on a minor in violation of 13 V.S.A. § 3252(a)(3) for inserting his tongue in her vagina.

¶ 5. At trial, the State presented seven witnesses, including complainant, her mother's boyfriend, Trooper Budwitz and Detective Werner. The complainant testified at length to the nature of her relationship with defendant, the events leading up to the ski trip she took alone with defendant, what occurred during the trip, and why she delayed reporting the incidents of abuse. Trooper Budwitz and Detective Werner testified regarding their investigation, the procedures they utilized in interviewing the child complainant, and what the complainant revealed to them regarding the incidents of abuse. Detective Werner, the lead investigator on the case, repeatedly referred to complainant as the "victim" during his testimony. Despite defense's timely objection, the trial judge permitted the detective to continue using the reference, ruling that use of the term was not highly prejudicial.

¶ 6. Defendant did not testify. He advanced his main defense—that the complainant's accusations were untruthful—through cross-examination of each of the State's witnesses and by calling Dr. Philip Kinsler, a psychologist qualified as an expert in interviewing children suspected of being victims of sexual abuse. In his proffer, defendant's attorney explained that Dr. Kinsler would testify to the interview techniques that are most likely to produce accurate responses as well as those techniques most likely to produce inaccurate responses. Defendant also intended to have Dr. Kinsler testify about the investigatory interviews conducted by Trooper Budwitz and Detective Werner, in order to give an opinion on whether they were conducted in a manner that was consistent with these suggested techniques. After listening to the expert's intended testimony in camera, the trial judge permitted him to testify about general interviewing techniques, but excluded testimony analyzing the specific interviews conducted by the police in this case.

¶ 7. In its verdict, the jury acquitted defendant of the more serious sexual assault charge, but convicted him of the charge of lewd and lascivious conduct with a minor. This appeal followed.

¶ 8. Defendant first contends that the trial court violated his constitutionally-based presumption of innocence when it permitted the lead police investigator, over objection, to repeatedly refer to the complainant as the "victim" during his testimony. In overruling defendant's objection, the trial court determined that the detective's reference to the complainant as the "victim" was not "highly prejudicial" because "the jury knows [the state's attorney] wouldn't be here if the State didn't believe this act occurred." We agree with defendant's contention that, where the commission of a crime is in dispute and the core issue is one of the complainant's credibility, it is error for a trial court to permit a police detective to refer to the complainant as the "victim." Based on the facts of this case, however, we do not find a violation of defendant's rights, and hold that the error was harmless.

¶ 9. The trial court may exclude testimony if the probative value "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." V.R.E. 403. The trial court has discretion to balance the factors in Rule 403, and "we will not disturb the trial court's ruling absent a showing of an abuse of that discretion." State v. Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996). In criminal trials, the court's discretion is limited, however, by defendant's right to due process. Id.

¶ 10. The first step in balancing is to consider whether the evidence has any probative value. State v. Ogden, 161 Vt. 336, 341, 640 A.2d 6, 10 (1993). Although Detective Werner had to identify complainant as the alleged victim, the use of the term "victim" had no inherent probative value. See V.R.E. 401; State v. LeClaire, 2003 VT 4, ¶ 14, 175 Vt. 52, 819 A.2d 719. Thus, with little or no weight on the probative value side of the balance, exclusion of the evidence was appropriate if the court found virtually any danger of unfair prejudice. We hold that there was a danger of unfair prejudice because the detective's choice of language implied that he and the prosecution believed the complainant's testimony, adding weight to the State's case. When defendant objected, the court should have required the officer to use a more neutral term to identify the complainant. The court's ruling that the officer could continue to use the term "victim" because it was not "highly prejudicial" misapplied the balancing that Rule 403 required. We cannot conclude that the court acted within its discretion.

¶ 11. We also conclude, however, that the error was harmless under the particular circumstances of this case. "`Harmless error analysis requires the reviewing court to inquire if, absent the alleged error, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error.'" State v. Wright, 154 Vt. 512, 519-20, 581 A.2d 720, 725 (1989) (quoting State v. Hamlin, 146 Vt. 97, 106, 499 A.2d 45, 52 (1985)); see V.R.Cr.P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."). After considering Detective Werner's testimony in its entirety, examining the way in which he used the term "victim," and considering the degree of danger of unfair prejudice, we conclude beyond a reasonable doubt that the jury would not have returned a different verdict had the detective used different and more neutral terminology.

¶ 12. In reaching our harmless error conclusion, we are mindful of the trial court's view that the jury would normally expect the investigating officer, who is testifying for the State, to believe the complainant. In this case, however, the context of the detective's testimony indicates that he was using a term he viewed as synonymous with complainant. See Jackson v. State, 600 A.2d 21, 24-25 (Del.1991) (explaining that "the term `victim,' to law enforcement officers, is a term of art synonymous with `complaining witness'"). He never expressed an opinion that B.M.Y. was victimized or that defendant was guilty. He referred to defendant as the "suspect" again indicating that he did not intend to convey an opinion of defendant's guilt. Even if the jury would expect the detective to believe B.M.Y., we do not believe that it would conclude that he expressed that opinion.

¶ 13. The situation here is...