Supreme Court On Appeal from Superior Court, Bennington Unit, Criminal Division, Cortland Corsones, J.
Christina Rainville, Bennington County Chief Deputy State’s Attorney, Bennington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Hayes, Supr. J., Specially Assigned
¶ 1. Defendant Charles (Hank) Madigan appeals his conviction of three counts of lewd and lascivious behavior with a child. On appeal, defendant argues (1) that the trial court erred in allowing two witnesses to testify to the victim’s character and reputation for truthfulness; (2) that the trial court admitted impermissible hearsay; and (3) that the prosecution’s closing argument was improper. We reverse.
¶ 2. The testimony at trial reflected the following. The victim, A.R., had been close friends with defendant’s daughter since early childhood. A.R. was somewhat estranged from her parents, who had divorced, and defendant acted as a sort of a surrogate father to A.R. After he and his wife divorced, defendant and his daughter moved to a three-bedroom home at the goat farm in Shaftsbury where defendant worked. Soon after that, A.R.-then a high school freshman-moved in with defendant and his daughter. Defendant supported A.R., providing furniture, food, and other items. A.R., in turn, performed farm chores. A.R. moved out some time in her senior year.
¶ 3. The charges related to three incidents which A.R. described in her testimony. The incidents occurred in the summer between A.R.’s freshman and sophomore years of high school. A.R. testified that defendant bought alcoholic beverages for her and was “hanging out” with her as they drank while sitting on the couch watching television. A.R. testified that this was the first time she had drunk alcohol, and that she had two or three drinks. A.R. testified that she fell asleep on the couch and, some time later, awoke in the dark and saw defendant “playing with” her pubic hair. A.R. testified that she pulled up her pajama bottoms and went to her bedroom and closed the door. She thought the incident “was so bizarre, so weird, that I thought it could have been a dream or a hallucination. I just didn’t know.” A.R. did not mention what had occurred to anybody, and she stated that she “purposely did not think about it, ” because “it would have brought up too many things to think about. Why did Hank do this? Why me?”
¶ 4. The second incident occurred sometime later that summer. A.R. testified that she was sleeping in her bedroom and woke to see defendant lying next to her in her bed, fondling her breast or chest, pubic area, and buttocks. A.R. testified in some detail about the incident, stating that upon awaking she moved away from him. A.R. testified that “after that point, I realized that... the first event really did happen, but I didn’t know who to tell or if anybody would believe me.” A.R. testified that she feared that her friend would not believe her and that she would not be able to stay at the farm had she come forward. A third incident, later that summer, was similar to the second, and on the fourth occasion she woke up to find her hand on defendant’s penis. Several days after the last incident, A.R. asked defendant for a lock on her door, because she “was worried that Hank would come in again.” A lock was installed very soon afterward, and the incidents stopped. A.R. testified that “we didn’t talk about what had happened; life just went on.”
¶ 5. Later, during A.R.’s junior year, a close friend died, which had a profound effect on A.R. and her friends. A.R. became “very depressed” throughout that year and the next. A.R. continued living in defendant’s home; she testified that she would check the lock multiple times before she could sleep, every single night. A.R. later left the farm and moved to her father’s house. A.R. testified that after her friend’s death, she told another friend that she had been abused by defendant, and then soon after told that friend’s sister. A week or two later, a social worker-investigator with the Vermont Department for Children and Families contacted A.R., beginning the investigation which resulted in the prosecution of defendant. Defendant was convicted in a jury trial and now appeals.
I. Testimony Concerning A.R.’s Character for Truthfulness
¶ 6. Vermont Rule of Evidence 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
¶ 7. The trial court permitted defendant’s ex-wife and A.R.’s friend, J.H., to testify concerning A.R.’s reputation for truthfulness. In particular, the state asked J.H.: “You know that there’s some kids who have a reputation for lying, some kids who have a reputation for being truthful. One way or the other... did [A.R.] have a reputation?” J.H. responded that: “She was always very truthful.” The court overruled defendant’s objection to this testimony. Similarly, when defendant’s ex-wife testified, the prosecutor asked her essentially the same question. Defendant’s ex-wife replied that A.R. “is very truthful” and agreed that “she had a reputation as a truthful kid.”
¶ 8. Defendant argues that allowing this testimony was error, both because his defense did not attack A.R.’s character for truthfulness, thereby “opening the door” to testimony concerning A.R.’s truthfulness, and because in both cases the State failed to lay a sufficient foundation.
¶ 9. Defendant never asserted that A.R. outright lied, but did offer the jury a narrative in which A.R. fabricated the accusations to get attention because she was jealous of her friend’s success. In opening argument, defense counsel stated: “What happens with teenagers and girls is relationships split. Things change. One girl becomes popular; one girl doesn’t. One girl is involved; one girl isn’t. One girl remains in the shadow; the other one blossoms. And they see these things happening.... [A.R.] was a senior in school going nowhere. [Defendant’s daughter] was going everywhere. And what [A.R.] did is brought the attention back to her.”
¶ 10. Additionally, defendant suggested that A.R.’s prior accounts were inconsistent, unclear, or excessively delayed. For example, defendant offered testimony from A.R. to show that she could not recall, or may have been equivocal, on precisely how long the gap was between incidents, and attempted to show inconsistencies between what A.R. told investigators initially and what she said later. Specific issues that defendant addressed included whether A.R. was given alcohol by defendant or took it for herself, whether A.R. had been haying earlier in the day or did not remember what she did earlier in the day, whether the drawstring pajamas she was wearing were tied or untied, whether A.R. was wearing plaid pajamas or jeans at the time of an incident, whether she was wearing a bra, the precise characterization of defendant’s movements and how he was touching her, and what exactly A.R. had told her friend, the first person she had ever told about the abuse. Defendant also questioned A.R. about her depression.
¶ 11. Defendant argues that the testimony he elicited at trial was impeachment by prior inconsistent statements or by lack of memory, and that testimony “to show that [A.R.’s] memory of these alleged incidents was vague and she changed her story frequently” is not an attack on A.R’s character for truthfulness. The State argues that by attacking “every aspect” of A.R.’s testimony, “including her mental health, her motives, her memory, the plausibility of [her testimony], and her supposed inconsistencies, ” defendant attacked A.R.’s character for truthfulness. We must decide, then, whether defendant made an “attack” on the “character of the witness for truthfulness” within the meaning of Rule 608. This issue is one that has not been substantially addressed by this Court.
¶ 12. The rationale for the general rule that “[t]he character of a witness may not be supported until it has been attacked” is that “[i]t is thought that the trier will assume that witnesses have normal character for veracity until there is evidence to the contrary, ” and “[i]t would be a waste of time and money to put in good character evidence about witnesses whose character has not been called into question.” 5 R. Park & T. Lininger, New Wigmore: A Treatise on Evidence: Impeachment and Rehabilitation § 9.2 (2014). If character-for-truthfulness testimony was admitted “when there is only a conflict in the testimony of opposing witnesses, the opposing witnesses on both sides could be supported by sustaining testimony in regard to their standing and character by reputation as witnesses, and the trial would be prolonged indefinitely.” Stevenson v. Gunning’s Estate, 64 Vt. 601, 609, 25 A. 697, 699 (1892). “The purpose of Rule ...