This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
Motion for Reargument Denied As Untimely Filed October 10, 2014.
On Appeal from Superior Court, Chittenden Unit, Criminal Division. Brian J. Grearson, J.
William H. Sorrell, Attorney General, and David Tartter and John R. Treadwell, Assistant Attorneys General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.
[¶1] Defendant Yetha Lumumba was born in the Democratic Republic of Congo, and immigrated to the United States in 2004, where he is a legal permanent resident. In 2012, defendant, then a student at the University of Vermont (UVM), was convicted of sexual assault of a fellow student.
Evidence presented at trial showed that in June of 2010 defendant and the victim, J.B., met up for a bike ride to a Burlington beach where they drank beer and talked, and which ended in oral sex that J.B. felt was nonconsensual. Several months later, in the fall of 2010, J.B. reported the incident and defendant was subsequently charged with sexual assault against J.B. After a three-day jury trial, defendant was found guilty and received a sentence of eight years to life in prison.
[¶2] Defendant appeals his conviction, arguing that the trial court committed reversible error at three points in the trial: (1) in allowing a clinical psychologist to give expert testimony about common reactions and behaviors of rape victims in between J.B.'s testimony and the defense's cross-examination of J.B.; (2) in not permitting defense counsel to have J.B. look over transcripts of her prior testimony during cross-examination to determine whether she had made a prior inconsistent statement; and (3) in admitting hearsay testimony from a UVM police officer who met with J.B. Defendant also raises an issue with the court's sentence, arguing that his immigration status prevents him from meeting Vermont's statutory requirement for sex-offender counseling prior to release from incarceration, thereby effectively sentencing him to a disproportionately harsh punishment of life in prison without the possibility of parole in violation of the Eighth Amendment. We address each issue in turn. We affirm the challenges to the trial court's evidentiary rulings but reverse and remand on sentencing.
[¶3] The trial court decides whether evidence is admissible in the first instance. See V.R.E. 104(a) (" Preliminary questions concerning ... the admissibility of evidence shall be determined by the court." ). On review, we generally accord deference to the court's decision to admit or deny evidence, and will reverse the trial court's ruling " only when there has been an abuse of discretion that resulted in prejudice." State v. Desautels, 2006 VT 84, ¶ 12, 180 Vt. 189, 908 A.2d 463.
[¶4] Defendant's first claim of reversible error is that the trial court impermissibly allowed in expert testimony used to bolster J.B.'s credibility as a witness. Specifically, defendant argues that the State tailored its expert's testimony on common assault-victim behavior to mirror J.B.'s testimony, thereby lending credibility to her behaviors during and after the incident, and that the trial court compounded this ...