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State v. Bergquist

Supreme Court of Vermont

March 22, 2019

State of Vermont
v.
Mark Bergquist

          On Appeal from Superior Court, Chittenden Unit, Criminal Division

          Michael S. Kupersmith, J. (Ret..) David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Richard R. Goldsborough, South Burlington, and David Carico, El Segundo, California, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. Defendant appeals his jury conviction for sexually assaulting his seven-year-old daughter, A.B. On appeal, defendant raises a host of arguments challenging the trial court's (1) admission of A.B.'s out-of-court statements pursuant to Vermont Rule of Evidence 804a, (2) exclusion of certain evidence concerning A.B.'s mother's state of mind and conduct, (3) ruling allowing A.B. to testify out of defendant's presence pursuant to Vermont Rule of Evidence 807(f), (4) denial of discovery of some of A.B.'s mental-health records, and (5) admission of expert testimony that he argues improperly "vouched" for A.B.'s credibility. We affirm.

         ¶ 2. This case began in December 2015 when mother reported to law enforcement that her daughter, A.B. (born Nov. 11, 2008), said that defendant had sexually abused her. Defendant and mother had been on-and-off romantic partners for a number of years, and defendant was A.B.'s father. After an investigation, including an interview of A.B. by a detective from the Chittenden Unit for Special Investigations, the State charged defendant with two counts of aggravated sexual assault of a victim under thirteen years pursuant to 13 V.SA. § 3253(a)(8). The evidence at trial included testimony by mother, defendant, expert witnesses for both sides, the detective who initially interviewed A.B. and defendant, and the physician who examined A.B. following the report, a video recording of the detective's initial interview of A.B., and a video recording of A.B.'s own trial testimony. The jury convicted on both counts, and the court sentenced defendant to thirty to fifty years on each count, to be served concurrently.

         ¶ 3. We consider each of defendant's challenges on appeal, expanding on the factual and procedural background as relevant.

         I. A.B.'s Out-of-Court Statements

         ¶ 4. Defendant challenges the trial court's determination that A.B.'s videotaped out-of- court statements to Detective Rene Young were admissible under Vermont Rule of Evidence 804a.

         ¶ 5. Rule 804a allows out-of-court statements by a child under twelve to be admitted into evidence in a proceeding where the child is the alleged victim of a sexual assault, "the statements were not taken in preparation for a legal proceeding," the child is available to testify in court or under Rule 807, and "the time, content and circumstances of the statements provide substantial indicia of trustworthiness." V.R.E. 804a(a). Defendant argues that the statements to Detective Young did not meet Rule 804a's requirement that "the time, content and circumstances of the statements provide substantial indicia of trustworthiness."

         ¶ 6. The trial court made the following findings in considering the State's motion to allow admission of A.B.'s out-of-court statements under Rule 804a. Defendant and A.B.'s mother had an unhealthy relationship throughout 2015, and on December 13, 2015, they had a long argument while home with A.B. During the argument, defendant taunted mother with the accusation that mother had molested A.B., and he said he should report her to the police. In fact, mother did later tell the police that when A.B. was an infant, under coercion by defendant, mother took photographs of herself "inappropriately touching" A.B. and sent them to defendant. Mother testified that on the night of December 13, defendant would not leave her alone, and he kept arguing with her and asking her to have sex with him. She eventually called an adult-crisis hotline. After her call to the hotline, mother took A.B. to a grocery store to get snacks. At the grocery store, A.B. was not listening to mother, so mother sat her down and asked if how she was acting had anything to do with the fight. A.B. said no. Mother said A.B. seemed nervous-she was fidgeting, kicking her legs, and playing with her belly button. Mother asked A.B. if defendant had hurt her. A.B. said he had grabbed her arm, but did not say defendant had done anything else. Mother had asked A.B. in the past if defendant had hurt her, but A.B. had always said he hadn't.

         ¶ 7. Mother then asked if defendant had ever told A.B. not to tell about something because she could be taken away. A.B. froze. Mother told A.B. a couple times that if anything had happened, she needed to know so she could keep A.B. safe. A.B. then whispered into her ear "we had sex." Mother testified that she was shocked. She asked A.B. if she knew what sex was, and what a penis was, and A.B. said yes to each. Mother was shocked to hear that too. She asked A.B. where defendant had touched her, and A.B. spread her legs and pointed to her genitals. Mother asked how many times it had happened, and A.B. said it happened once over the summer. Mother asked twice if A.B. was sure, and A.B. finally said it might have happened a couple of times. Mother then called the police.

         ¶ 8. A.B. was placed in the custody of the Department for Children and Families (DCF) on an emergency basis. The next day, Detective Young conducted a forensic interview with A.B. The interview was videotaped. At the beginning of the interview, Detective Young asked A.B. questions to establish that A.B. could tell the difference between truth and lies, and had A.B. promise to tell the truth. Eventually, A.B. told Detective Young that defendant put his "gina" in her "gina," and gave details as to how it happened. When Detective Young asked what "gina" meant, A.B. pointed to her genitals, and said it was used for sex and "to go potty." She also said that defendant had put his "gina" in her "gina" on a second occasion, this one at night, but did not provide further details.

         ¶ 9. The State moved to allow admission of both A.B.'s statements to mother and to Detective Young; defendant opposed the admission of both. The court held that A.B.'s statements to mother were not admissible because their circumstances-including that defendant had threatened to report mother to the police for sexually assaulting A.B. shortly before A.B. made the statements-did not provide substantial indicia of trustworthiness, as Rule 804a(a)(4) requires. It noted, however, that this ruling reflected only that the State had not met its burden of establishing that the circumstances provided sufficient indicia of trustworthiness, and was not a decision as to the veracity of the statements. The court did allow admission of A.B.'s statements to Detective Young, as it found their time, content, and circumstances bore substantial indicia of trustworthiness.

         ¶ 10. In connection with the latter conclusion, the court credited the testimony of the State's expert, Dr. Halikias, concerning the protocols for such interviews. The court found that A.B. "appeared consistent about the disclosures throughout the interview," and appeared reluctant and hesitant. The court found that she "looked uncomfortable and at times frightened," and her whispered disclosure to Detective Young was "convincing." The court concluded that "despite some flaws in the detective's questioning style, the flaws did not affect the validity or reliability of the interview" because A.B. "did not appear manipulated by the flawed questions and resisted leading and repeated questioning."

         ¶ 11. On appeal, defendant argues that the trial court erred in finding the circumstances of A.B.'s statements to Detective Young trustworthy. He argues that mother coerced A.B. into making the statements the night before, and that A.B.'s statements to the detective were contaminated by that coercion. Defendant preserved this issue for appeal.

         ¶ 12. The trial court's decision to admit A.B.'s statements under Rule 804a was a discretionary one, which we review deferentially and would reverse only upon finding abuse of discretion. State v. Felix, 2014 VT 68, ¶ 19, 197 Vt. 230, 103 A.3d 927. The determination of trustworthiness under Rule 804a(a)(4) is a factual finding, which this Court will not overturn unless clearly erroneous. State v. Gallagher, 150 Vt. 341, 348, 554 A.2d 221, 225 (1988).

         ¶ 13. In determining whether the circumstances of a child's statement have the indicia of trustworthiness required for admission under Rule 804a(a)(4), a court "may consider such factors as: the circumstances of the initial disclosure, including the setting and person to whom the disclosures were made; internal consistency and detail of disclosures; timing and conduct of interviews, including whether nonleading questions were asked; freshness and spontaneity of disclosures; appropriate body language; risk of fabrication" and "evidence of coercion or manipulation" as well as "accuracy of peripheral detail; the child's affect, intelligence, memory, and concern for the truth; and corroboration by medical and other evidence." State v. Pratt, 2015 VT 89, ¶ 7, 200 Vt. 64, 128 A.3d 883.

         ¶ 14. We conclude that the trial court's finding that A.B.'s statements to Detective Young bore sufficient indicia of trustworthiness was not clearly erroneous. Evidence supporting this conclusion includes the State's expert's testimony that conduct of the interview was reasonably sound, despite some violations of the accepted interview protocol; A.B.'s word choice and body language, which the trial court could reasonably find supported her credibility; A.B.'s apparent resistance to leading questions when asked; and the fact that A.B., then a seven-year-old child, made reasonably consistent and at times graphic disclosures. See State v. LaBounty, 168 Vt. 129, 138, 716 A.2d 1, 7-8 (1998) (holding that young children's graphic accounts of sexual abuse to caseworkers and police officers, made the day after their initial disclosures to their mothers, supported finding that statements were trustworthy). Accordingly, we find no abuse of discretion in the trial court's decision to admit A.B.'s statements to Detective Young under Rule 804a.

         ¶ 15. We understand defendant's view that none of these indicia of trustworthiness is sufficient to surmount the contamination arising from mother's coercion of A.B. the night before, but conclude that the trial court's exclusion of A.B.'s out-of-court statements to mother does not undermine its admission of the statements to Detective Young. The trial court emphasized that its decision to exclude A.B.'s out-of-court statements to mother rested on the State's failure to meet its burden of showing that the time and circumstances of A.B.'s disclosure to mother provided substantial indicia of trustworthiness. The court noted that the content of the actual disclosure to mother, and the child's behavior and reluctance to disclose, as reported by mother, were factors that provided some support for the trustworthiness of the statements. However, in light of the unhealthy relationship between mother and defendant and defendant's threats to report mother for sexual abuse shortly before A.B.'s disclosure to mother, the court concluded the State had not met its burden. The trial court did not find that mother coerced A.B.'s initial reports the night before, and the evidence, while it may support such an inference, does not compel such an inference. Accordingly, the court's conclusion that the statements to Detective Young were trustworthy, which implicitly rejected the claim that the statements were irretrievably contaminated by mother's questioning of A.B. the night before, was not clearly erroneous.[1]

         II. Evidence of Mother's Mental Illness and Alleged Assault

         ¶ 16. Defendant argues that the exclusion of certain evidence of mother's "mental illness and her aggravated assault" on A.B. deprived him of his constitutional rights to confrontation and to present a defense under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and Chapter I, Article 10 of the Vermont Constitution.

         ¶ 17. The background relevant to this claim is as follows. In broad terms, defendant's theory of the case, beyond his general denial, is that mother coached A.B. to make the allegations because she thought defendant was going to report her for sexually abusing A.B. and she sought to preempt and divert attention from that report. In particular, around 2009, when A.B. was an infant, mother took photos of herself touching A.B.'s vagina with her fingers and mouth. (Mother has subsequently alleged that defendant forced her to take these pictures and send them to him.) This happened while mother was enrolled in a residential parenting program. When her counselor at the program asked her about the photos mother had taken, mother lied to her counselor, claiming that they were of her breastfeeding. On the day in December 2015 when A.B. later made her disclosure, defendant called mother a child molester in the context of a fight. After the fight, mother called a mental-health crisis line. She then took A.B. to the store, where mother said A.B. made her disclosure to mother. Mother reported A.B.'s allegations against defendant shortly thereafter. At that time, she also disclosed her own prior (2009) sexual assault of A.B. to the police. Subsequently, while this case was pending, during a supervised visit with A.B. mother told A.B. about the 2009 assault and said to A.B. that defendant had made her (mother) do it. Although mother denied to the DCF caseworker that she made any such disclosure, the caseworker observed that A.B. provided a high level of detail about the disclosure. Finally, mother has a history of significant mental-health issues. Defendant argues that these events show mother's motive to coach A.B. to make a false report against him and also undermine mother's credibility generally.

         ¶ 18. In connection with these matters, the parties made a series of motions pretrial, which we discuss more fully as they are relevant to particular rulings.

         ¶ 19. At trial, the court admitted considerable evidence relating to mother's mental health, but stated that defendant could not introduce evidence of mother's "mental health status as such" because it was not relevant. The court allowed defendant to introduce evidence suggesting that mother had mental-health concerns, including that mother had in the past seen a mental-health professional, had attempted suicide, and had called a mental-health crisis line the night A.B. disclosed defendant's sexual abuse of her. It also allowed evidence that mother and defendant had in the past argued about mother's mental health and her refusal to seek therapy.

         ¶ 20. Likewise, the trial court ultimately allowed defendant to introduce evidence relating to mother's alleged assault of A.B. and some of her subsequent statements about it.[2] On the stand, mother admitted that she had taken pictures of herself inserting her finger into A.B.'s vagina when A.B. was an infant. She conceded that was why defendant called her a child molester, and that she told the police about it on the evening that she called to report defendant's abuse of A.B. because she "thought it would be best to get it out" herself "rather than have [defendant] report it." The court also admitted A.B.'s testimony that mother had told A.B. that when A.B. "was a little baby or girl . . . my dad made my mom stick her finger in my private." The court also allowed defendant to ask mother on the stand if she had told A.B. this.

         ¶ 21. On appeal, defendant challenges six specific rulings or clusters of rulings that he argues denied him the opportunity to fully present his defense.[3]

         ¶ 22. "We review the trial court's evidentiary rulings deferentially and reverse only when there has been an abuse of discretion that resulted in prejudice." Felix, 2014 VT 68, ¶ 19 (quotation omitted). We will find an abuse of discretion only upon a showing that "the court's discretion was either withheld or exercised on clearly unreasonable grounds." State v. Cartee, 161 Vt. 73, 76, 632 A.2d 1108, 1110 (1993). Recognizing the constitutional issues at play when a criminal defendant is prevented from introducing evidence to impeach an opposing witness or call into question a witness's motive, our "analysis of whether the trial court abused its discretion . . . is further amplified by defendant's constitutional right to confront witnesses against him." Id. With these standards in mind, we consider each of defendant's respective challenges on appeal.

         A. Testimony from Detective Young Regarding Mother's Admission

         ¶ 23. Defendant argues that the trial court erroneously declined to allow him to call Detective Young to testify that mother admitted to Detective Young on the night of A.B.'s initial disclosure of abuse that she, mother, had previously sexually abused A.B.

         ¶ 24. The ruling at issue followed a discussion at the bench on the second day of trial. Defendant was seeking to highlight mother's statements to A.B. about the prior assault, and mother's denial to the DCF caseworker that she made those statements. Defense counsel asked whether he could call Detective Young to say that at the interview, mother said that she had touched A.B.'s vagina, and then call A.B.'s foster mother to testify that A.B. had reported that mother had disclosed this prior abuse during a visit. The court noted that A.B. had already testified to these events and concluded that defendant did not need to bring in Detective Young to repeat that.

         ¶ 25. The trial court has considerable discretion to refuse to allow cumulative evidence. Pcolar v. Casella Waste Sys., Inc., 2012 VT 58, ¶ 9, 192 Vt. 343, 59 A.3d 702, as amended on denial of reh'g (Aug. 28, 2012).

         ¶ 26. Here, even if the court abused its considerable discretion in denying defendant the opportunity to elicit from Detective Young testimony about matters that were already in the record, defendant was not prejudiced by the ruling since mother herself subsequently testified that at the time she reported A.B.'s disclosures, she told Detective Young that she, mother, had committed the prior acts. This is essentially the same testimony defendant sought to elicit from Detective Young. The fact that mother made this disclosure to Detective Young was clear to the jury and undisputed. Accordingly, defendant suffered no prejudice from the court's exclusion of the additional testimony, and any error was harmless. See V.R.Cr.P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."); State v. Haskins, 2016 VT 79, ¶¶ 17, 28, 202 Vt. 461, 150 A.3d 202 (holding error is harmless if it is beyond reasonable doubt that jury would have convicted even had error not occurred, given strength of case without excluded evidence, and strength of excluded evidence, taking into account whether it was cumulative or duplicative).

         B. Testimony from Detective Young Regarding Mother's Inconsistent Statement

         ¶ 27. Defendant challenges the trial court's exclusion of a prior inconsistent statement mother made to Detective Young. The background is as follows. During mother's testimony, after mother described the photos she took of herself abusing A.B. when A.B. was an infant, defendant elicited mother's confirmation that she had made a report about the incident when she was at the residential program where it happened. In connection with that report, defense counsel asked mother, "Isn't it true that . . . you told [your counselor] that you had not taken the pictures that you just described?" Mother responded, "I had told her that I thought I did, but wasn't sure, and she said that if-if I actually did it, she thinks I would have remembered." Defendant also elicited testimony from mother that DCF interviewed her following this report and did not substantiate her for abuse. Mother admitted that DCF's report indicated that mother said she only took pictures of herself lying down without a top and A.B. sitting in a diaper on her stomach, but said she did not remember saying that to DCF. On appeal, defendant argues that the trial court improperly excluded evidence of mother's statement to Detective Young that she had previously told her counselor at the residential program that she sexually abused A.B.

         ¶ 28. Although defendant identifies this argument in his post-argument list of rulings at issue on appeal, nowhere in his appeal briefs does he provide a record citation to the court's contested ruling on this point so we can review it.[4] See V.R.A.P. 28(a)(4)(A) (appellant's brief must contain "the issues presented, how they were preserved, and appellant's contentions and the reasons for them-with citations to the authorities, statutes, and parts of the record on which the appellant relies").

         ¶ 29. Nor does he point us to his request to call Detective Young for this purpose and his proffer as to what Detective Young was expected to say. See V.R.E. 103(a) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [where] the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."). Defendant did not attempt to question Detective Young about the purported inconsistent statement by mother when Detective Young testified during the State's case in chief, nor when she testified in the State's rebuttal case. Defendant has not pointed us to an instance when he sought to call Detective Young in his own case for the purpose of asking this question. Because defendant has not identified a request, proffer, and ruling for us to review, we cannot conclude that the trial court committed error.[5]

         C. Testimony of Counselor

         ¶ 30. In connection with the same issue, defendant sought to call the counselor from the program mother was enrolled in to testify that mother had told the counselor back in 2010 that the pictures mother had taken and sent to defendant were essentially benign, and that mother did not disclose the sexually abusive nature of the pictures to the counselor. In declining defendant's request, the court explained that mother had already admitted to committing the 2009 acts, and the proffered testimony showing that mother lied about them to her counselor in 2010 would add little.

         ¶ 31. While constitutional concerns do limit the trial court's discretion to exclude evidence impeaching the credibility or exposing the bias of a witness such as mother, the court's ruling denying defendant's request to call the counselor for this purpose was well within its discretion. The Confrontation Clause limits trial courts' discretion to restrict impeachment of a key prosecution witness's credibility. Cartee, 161 Vt. at 76, 632 A.2d at 1111. This is because the purpose of confrontation is to give the opponent the chance "to test the truth and accuracy of a witness' testimony" and expose "a witness' motivation in testifying." Id. at 76, 632 A.2d at 1110 (quotation omitted)). Preventing criminal defendants from introducing impeachment evidence to expose a witness's bias would render cross-examination "largely an empty gesture." Id. at 77, 632 A.2d at 1111. Moreover, jurors are" 'entitled to have the benefit of the defense theory before them so that they [can] make an informed judgment as to the weight to place on the witness' testimony.'" Id. at 76, 632 A.2d at 1110 (alterations omitted) (quoting Davis v. Alaska, 415 U.S. 308, 317 (1974)).

         ¶ 32. In this case, though, the jury heard the core evidence to support defendant's theory that mother sexually abused A.B. when A.B. was an infant; that defendant argued with mother and called her a child molester shortly before mother reported A.B.'s disclosures; and that mother then reported A.B.'s disclosures to the police, along with mother's own actions six years prior, in an effort to preempt any report defendant might make about mother's conduct and shift the attention to him.

         ¶ 33. Evidence that mother did not fully disclose the contents of the pictures when she spoke to her counselor about them in 2010 would have, at most, impeached mother's credibility by exposing somewhat inconsistent statements on a collateral matter-that is, the scope of her 2010 disclosures to her counselor about the photos she took. A court has broad discretion to exclude extrinsic evidence introduced to impeach a witness on a collateral matter. See V.R.E. 608(b) (providing that extrinsic evidence may not be used to prove instances of witness's conduct for purposes of attacking or supporting witness's credibility, other than conviction of crime as provided in Rule 609); State v. Congress, 2014 VT 129, ¶¶ 46-48, 198 Vt. 241, 114 A.3d 1128 (upholding trial court's refusal to allow extrinsic evidence to impeach witness on collateral matters: whether witness truly needed glasses to read document in court, and whether witness truly lacked education to do so). Mother's actions toward A.B. in 2009 may not be collateral to the issues in this case given defendant's theory that they explain mother's bias and motives to coach a false allegation against defendant. Mother's candor to ...


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