U.S. v. Provost, 87-5351
| Decision Date | 22 June 1989 |
| Docket Number | No. 87-5351,87-5351 |
| Citation | 875 F.2d 172 |
| Parties | 28 Fed. R. Evid. Serv. 187 UNITED STATES of America, Appellee, v. Terrance Kenneth PROVOST, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert C. Riter, Jr., Pierre, S.D., for appellant.
Mikal Hanson, Asst. U.S. Atty., Pierre, S.D., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and ROSS, Senior Circuit Judge.
Terrance K. Provost (Provost) appeals from his conviction for aggravated sexual assault. 18 U.S.C. Secs. 1153, 2241(c), 2245(2)(A). Provost alleges seven grounds for error: (1) denial of a motion to appoint an independent psychologist to examine the victim; (2) permitting an expert witness to express an opinion on the credibility of the victim; (3) admission of hearsay testimony; (4) failure to exclude evidence going to the credibility of an alibi witness; (5) the denial of defendant's offer of proof regarding the victim's prior inconsistent statements; (6) denial of a motion for acquittal premised on the insufficiency of the evidence; and (7) lack of jurisdiction. We reject each of Provost's contentions and affirm his conviction.
Provost was charged with aggravated sexual assault of his ten-year-old half-sister, Loretta Stone. In 1986, Loretta lived with her father, Larry Stone, in Spearfish, South Dakota. On December 19, 1986, she went to Lower Brule, South Dakota, to spend the Christmas holidays with her mother, Shirley Marvin. 1 Loretta returned to Spearfish January 4, 1987. About two weeks later, Loretta told her step-mother, Nano Stone, that her step-brother, Terry Provost, had assaulted her at her mother's house.
Dr. Wayne Anderson, M.D., examined Loretta on January 26, 1987. During the examination, Loretta described the assault and identified Provost as the assailant. Dr. Anderson gave Loretta a physical examination, and noted a reddening around her vaginal opening. Because Loretta was hysterical, however, he could not perform a complete examination. A culture taken that day indicated positive for a venereal disease, chlamydia trachomatis. Dr. Anderson completed a second examination on April 28. At that time, he observed a slight tag or tear on the right side of her hymenal ring, and observed that the vaginal opening was about one centimeter. He testified at trial that in his opinion, the opening was larger than average in prepubertal girls and, although not unusually large, suggested penetration.
In early March, Shirley Marvin told Provost of the allegations made against him, and his sister, Maria Thompson, told him that Loretta was infected with chlamydia. Provost went to the hospital in Eagle Butte, where he received treatment for an ear infection and was tested for sexually transmitted disease. Provost tested negative for chlamydia.
Before trial, Provost moved for appointment of an independent psychiatrist or psychologist to examine Loretta. The government joined in the motion and requested that Dr. Mary Curran, a clinical psychologist, be appointed to conduct the examination. The trial court granted the government's request. Later, the trial court granted a motion brought by defendant requesting appointment of a nontestifying expert to assist defendant's counsel in evaluating Dr. Curran's report and testimony at trial.
Dr. Curran interviewed Loretta on May 5, 1987. Loretta described the assault to Dr. Curran and identified Terry Provost as the assailant. At trial, Dr. Curran testified as to the emotional and psychological characteristics often observed in sexually abused children, and her observation that Loretta exhibited many of these characteristics.
At trial, Loretta testified that on the day after Christmas, she awoke in a second-floor room of her mother's house when she heard someone walking up the stairs. Provost entered the room, wearing only his underwear. He pulled up her nightgown, put his penis between her legs, and pushed until it entered her "private parts." After about five minutes, he put on his underwear without either of them saying anything. Loretta would not describe the defendant's body part which touched her, but she drew a picture of male genitals which was exhibited to the jury. After the assault, Loretta took a shower and washed "white stuff" and a little blood off her leg and private parts. Then, wrapped in a towel and wearing only shoes and underwear, she went to a next door neighbor's house, and asked to use the phone to call her mother at work. When her mother asked her what was wrong, she replied "nothing."
The neighbor, Donna Nibbelink, testified that she was like a grandmother to Loretta. She further testified that, although Loretta visited her house several times during the holiday, she never came over wearing just a towel, underwear and shoes, and that she never saw her in an excited or anxious mood during that holiday. Nibbelink kept a diary of her daily activities during this period, which was consistent with her testimony.
Defendant offered testimony from Nibbelink, Shirley Marvin and Deanna Provost to the effect that during the week after Christmas 1986, Terry Provost and Loretta were never alone together in the Marvin house.
After a four-and-one-half-day jury trial, Provost was convicted of aggravated sexual assault and sentenced to thirteen years imprisonment. This appeal followed.
Provost first asserts as error that the court-appointed expert, Dr. Curran, was not independent because she was selected by the government and because she had a "long-standing relationship" with the government in the prosecution of sexual abuse cases. The government contends that Dr. Curran was an independent witness and not the government's expert, and that Provost has failed to show that an additional independent psychological examination was necessary to his defense.
A trial court has broad discretion to grant application for appointment of an expert witness. United States v. Schultz, 431 F.2d 907, 910 (8th Cir.1970). Here, there is no question as to Dr. Curran's qualification as an expert. Rather, the issue is whether Dr. Curran is an independent witness or whether her independence is compromised by her role as a prosecution witness in other cases. We find that the trial court did not abuse its discretion in appointing Dr. Curran to conduct an independent examination of the victim or in denying the defendant's request for a second independent examination.
The fact that Dr. Curran has been called as a prosecution witness in a number of previous cases does not make her an employee of the government or necessarily compromise the independence of her examination of Loretta. Provost has made no showing that a second psychological examination would have been beneficial to the development of his defense. Provost had access to Dr. Curran's report and an opportunity to converse with her before trial. Almost six weeks before trial, the court appointed Dr. Lynn Goehring to assist defense counsel in analyzing Dr. Curran's report. Dr. Goehring was also present in the courtroom during Dr. Curran's testimony to provide assistance to the defendant.
Provost's second objection focuses on a portion of Dr. Curran's testimony which he characterizes as a comment on the credibility of the victim. In United States v. Azure, 801 F.2d 336 (8th Cir.1986), this court held that an expert witness may not give his or her opinion as to the believability of a child witness. An expert's opinion on the credibility of the victim invades the exclusive province of the jury to determine the believability of a witness' testimony. United States v. St. Pierre, 812 F.2d 417, 419 (8th Cir.1987).
Dr. Curran testified that Loretta told her she took a shower after Provost assaulted her and that, while in the shower, a friend of Provost's had entered the bathroom and confronted her. On redirect examination of Dr. Curran, the government's attorney inquired why Loretta would have stated that the sexual assault by Provost occurred on the same occasion as when a friend of Provost's confronted her in the shower. Dr. Curran testified, based on her understanding of the characteristics of sexually abused children, that a factual occurrence bearing some relation to an incident of abuse might serve as a "triggering mechanism" that would cause a victim to link two events as contingent in time even though they may have occurred on separate occasions. Dr. Curran stated:
The triggering mechanism with the shower is that she had progressed in her telling me the incident that had happened and the fact that she was taking a shower may have triggered a memory of another incident and it did. It triggered the memory of the friend of Terry coming into the shower and looking at her and her response to it is screaming and he shouldn't have been there. So basically when she said the words when I said what happened next she said I took a shower and I washed that gunky stuff off and the blood, she connected the two things as contingent in time. They may or may not have been contingent in time. I think what is an elementary basic thing is that whether or not they were contingent in time they both occurred and the memory of taking the shower and washing the semen off of her body triggered the memory of the other intrusion into her private space and that she then was responding to the shower and the fact that something else happened in the shower. It may or may not have been--she presented them contingently as though it were one experience. Therapeutically it may not have been.
Tr. at 248-49 (emphasis added).
Dr. Curran did not directly offer an expert opinion on the credibility of Loretta. Her comment that "they [the two shower incidents] both occurred" is, at most, an implied statement of her belief that Loretta was telling the truth. In Azure, the expert, a pediatrician, testified that the victim was believable and that ...
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