Opinion
No. ED88900
September 11, 2007
Appeal from the Circuit Court Hon. Keith M. Sutherland.
J. Kevin Hamlett Mexico, MO, Attorneys for appellant.
Jeremiah W. Nixon, Linda Lemke, Jefferson City, MO, Attorneys for appellant.
Before: Cohen, C.J., Ahrens J., and Norton, J. concurring.
OPINION SUMMARY
Phillip Couch ("Defendant") appeals from the judgment entered after a jury convicted him on one charge of child molestation in the first degree in violation of section 566.067 RSMo 2000 and two charges of endangering the welfare of a child in the first degree in violation of section 568.045 RSMo 2000, for which he received consecutive terms of imprisonment of fifteen years, five years, and five years, respectively. Defendant contends that the trial court erred in excluding evidence attacking the credibility of one witness, in permitting an expert witness to testify in a narrative fashion and bolster the credibility of other witnesses, and in excluding evidence regarding the dissolution action filed by Stephanie Couch ("Wife") against Defendant.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
DIVISION THREE HOLDS:
1. The trial court erred in excluding evidence of a prior false allegation made by a witness. The record does not reflect that the trial court properly determined the legal relevance of the excluded alleged prior false accusation in accordance with State v. Long, 140 S.W.3d 27, 31-32 (Mo. banc 2004), but rather focused solely on the lack of similarity between the alleged prior false accusation of physical abuse by an adoptive father and the charge of sexual abuse by Defendant.
2. The trial court did not err in permitting an expert witness to answer some questions on redirect examination in an arguably narrative fashion, and did not err in denying Defendant's motion for a mistrial. The psychologist did not improperly bolster the credibility of other witnesses, where she did not comment directly on the credibility of other witnesses, or express an opinion as to the truthfulness of witnesses of the same type.
3. The trial court did not plainly err in excluding cross-examination of Wife regarding any request that she might have made for alimony or maintenance in her impending dissolution of marriage action against Defendant. The information sought by Defendant was of slight probative value, and there was no prejudice to Defendant, and certainly no manifest injustice or miscarriage of justice. Reasonable jurors are aware that a spouse in a dissolution of marriage action often requests maintenance.
4. The judgment is reversed and remanded as to the conviction on count IV, endangering the welfare of a child in the first degree, and is affirmed in all other respects.
Philip Couch ("Defendant") appeals from the judgment entered after a jury convicted him on one charge of child molestation in the first degree ("Count I") in violation of section 566.067 RSMo 2000 and two charges of endangering the welfare of a child in the first degree ("Count III" and "Count IV") in violation of section 568.045, for which he received consecutive terms of imprisonment of fifteen years, five years, and five years, respectively. Defendant was acquitted on charges of statutory sodomy in the first degree ("Count II") in violation of section 566.062, attempted victim tampering ("Count V") in violation of section 575.270, and violation of a full order of child protection ("Count VI") in violation of section 455.538. Defendant contends that the trial court erred in excluding evidence impeaching the credibility of one witness, in permitting an expert witness to testify in a narrative fashion and bolster the credibility of other witnesses, and in excluding evidence regarding the dissolution action filed by Stephanie Couch ("Wife") against Defendant. We affirm in part and reverse and remand in part.
Unless noted otherwise, all further statutory citations are to RSMo 2000.
Defendant was charged by amended information with six charges. Counts I, V, and VI related to Defendant's natural daughter, J.C.; Counts II and III related to Defendant's adopted daughter, S.C.; and Count IV involved Defendant's adopted daughter, V.C.
Prior to trial, the trial court heard the State's motion to exclude testimony from two witnesses concerning alleged false accusations by V.C. against her former adoptive father, Rocky Zumwalt, and her adoptive uncle, Randy Zumwalt. Randy Zumwalt testified that V.C. had accused him of child molestation or rape, that the police had investigated the matter, that he had not been charged with either crime, and that he neither raped nor molested V.C. R.C., V.C.'s natural brother, testified that approximately six years previously, V.C. had reported to a number of people, including state authorities, social workers, and case workers, that Rocky Zumwalt had physically abused her, resulting in an investigation by DFS. He further stated that she subsequently told him that she had lied about the physical abuse. R.C. also said that Rocky Zumwalt was separated from his family in part because of the lies that V.C. had admitted telling. V.C. was not called as a witness. The trial court concluded that the Defendant had not shown by a preponderance of the evidence that V.C. had made any false allegation against her former adoptive uncle, Randy Zumwalt. The trial court excluded that testimony. Regarding the allegedly false allegations of physical abuse by Rocky Zumwalt, the trial court also excluded that testimony, and found as follows:
Assuming that what [R.C.] testified to that there were allegations that Rocky Zumwalt had hit [V.C.] with a switch that meets part of the requirements to have this testimony admissible in that there were in fact prior allegations. There's a possibility they're false. I'm not sure they've been shown by a preponderance of the evidence to be false or that the victim knew that they were false; and in addition they are not the same sort of allegations that are involved in this case. And that may be the most important thing. It's not prior allegations of child molestation or sexual misconduct of some kind. So I don't think it's appropriate to allow that testimony either.
Defendant's counsel preserved the offer of proof. The trial court concluded that it did not "see any reason to have that same testimony repeated almost verbatim again[,]" and that it would consider the testimony that it had heard from Randy Zumwalt and R.C. on the motion "also to be an offer of proof at trial."
At trial, J.C. testified that on May 5, 2005, she had trouble sleeping, went to her parents' bedroom, waking up Defendant. She stated that Defendant called her name, so she got in bed next to him, and that after a few minutes he began to touch her with his hands underneath her clothes on her breasts and vaginal area, and pulled her back onto the bed when she tried to get up. J.C. got up again, left her parents' bedroom, and went to S.C.'s bedroom, where she told S.C. about the incident. She said that she discussed it with V.C. the following morning.
V.C. testified that J.C. told her about the events of May 5th, which made her angry. She stated that a few days prior to May 5th, Defendant had touched her vagina through her pajamas while she was laying on the living room couch in her home, and the following night he touched her vagina underneath her clothes. She also testified that on other occasions Defendant touched her breasts.
S.C. testified that J.C. told her about the incident of May 5th after it occurred, and that she told R.C. She stated that in March 2003, Defendant and several of the children in the family were sleeping in the family RV. S.C. said that Defendant told her to sleep in his bed in the RV with him because it was larger. She averred that she woke up with Defendant's hand in her vagina. S.C. further testified that a few weeks prior to the events of May 5, 2005, Defendant came into her bedroom after work and rubbed her breasts through her clothes. She stated that she told R.C. about the molestation after J.C. told her about her encounter with Defendant.
Lisa Clervi, a psychologist ("psychologist"), also testified. She stated that she counseled J.C., S.C., and V.C., and recounted some of what J.C. had told her. On direct examination, she also testified regarding how different children react to sexual abuse. She stated that J.C. exhibited some of the characteristics that are commonly seen in children who report abuse or neglect. On cross-examination, psychologist testified that adolescents sometimes develop unreasonable hostility towards their parents. She admitted that occasionally children make false accusations of sexual or physical abuse. She described the characteristics that children who make false allegations usually exhibit. When asked whether those characteristics applied to V.C. and S.C., she said that she did not believe so. On redirect examination, the following exchanges took place.
State: [Psychologist], Mr. Hamlett [Defendant's counsel] asked you if you felt that things that he said to you fit [V.C.] and [S.C.] to a T and you said you didn't believe so. Is that right?
Psychologist: That's correct.
State: Okay. Specifically what — what about [V.C.]? Can you explain what specific characteristics about [V.C.] that you disagree with Mr. Hamlett's suggestion?
Psychologist: There is nothing more that [V.C.] wanted than to stay —
Hamlett: Objection, your Honor. Non-responsive, narrative. . . .
Court: Overruled. Go ahead.
Psychologist: There's nothing more that [V.C.] wanted than to be in a loving and adoptive family and she'd [have] done nothing to sabotage that family. When children —
Hamlett: Objection, your Honor. This is a conclusion, which is narrative. . . .
Court: Overruled. Go ahead.
Hamlett: It's not responsive.
Psychologist: When children have an ulterior motive of disrupting their family it's because they want to be out of that family, which is something that she never wanted and something that [S.C.] never wanted. They wanted to be in an adoptive family where they would be loved and cared about for the rest of their lives and would [have] done nothing to sabotage that.
State: And that's the impression you got from them after meeting with them[?]
Psychologist: Yes. . . .
Hamlett: You Honor, I object. . . .
Hamlett: The prosecuting attorney and the witness just commented upon the credibility of the child, alleged child victim here.
State: No.
Hamlett: There's case law that specifically prohibits that and at this time I would move for a mistrial as that is highly inflammatory and highly prejudicial.
Court: The objection is overruled.
On re-cross-examination, psychologist stated that one of the issues for J.C., V.C., and S.C. was that they knew if accusations of sexual abuse came out that there would be DFS intervention and that they might be separated, and that this was a motive not to disclose abuse. Defense counsel pointed out to psychologist that only Defendant was accused of wrongdoing, and that he was removed from the family home. Psychologist stated that Wife, the mother of J.C., V.C., and S.C., kept the family together.
Mother testified that she and Defendant were in the process of getting a divorce. On cross-examination, she stated that prior to learning of the allegations by J.C., S.C., and V.C., she believed that Defendant was a man of good character. Defense counsel tried to inquire as to what Mother was seeking in the dissolution action, but the trial court sustained the State's objections on the basis of lack of relevance. On redirect examination, she stated that she had filed for divorce after the allegations were made by her daughters against Defendant. During the course of Mother's testimony, the State had her read aloud several letters that Defendant had written to his children, including J.C., S.C., and V.C., and to Mother.
In his letter to J.C., Defendant told her that he did not really know what happened on the night of May 5, 2005, but that he would never intentionally hurt her. He apologized to S.C. for making her feel uncomfortable, although he did not know why she was uncomfortable. To V.C., he wrote that the time that they spent together was special, and he told her as the oldest child that she needed to help Mother keep the family going. Defendant neither directly admitted nor denied doing anything improper with J.C., S.C., or V.C. in these letters.
Defendant testified in his own defense. He denied touching V.C., S.C., or J.C. in an improper fashion for sexual gratification. He stated that on May 5, 2005, he was awakened by J.C. kicking him in the leg, whereupon he told her to leave, and she got up and left the bedroom. Defendant said that at one point he was concerned that he might have touched J.C. in his sleep on May 5th, because he was trying to understand why J.C. might have made such an allegation, and he had discussed this possibility with Mother. He testified that he had erotic dreams from time to time, and that he had such a dream on the night of May 5, 2005. Regarding the letters that he wrote to the members of his family, he stated that at the time that he wrote them, he was aware of the allegations by J.C., but not those of V.C., and that he had learned that he had made S.C. feel uncomfortable. Defendant testified that he was extremely depressed when he wrote the letters because "I'd feared that something I'd done in my sleep had just cost me my entire family." He clarified that he merely suspected that he might have done something in his sleep.
A number of other witnesses testified, and a number of photographs, reports, and documents were introduced into evidence. The jury returned verdicts of guilty against Defendant on Count I, Count III, and Count IV, and verdicts of not guilty on Counts II, V, and VI. The trial court sentenced Defendant to terms of fifteen years' imprisonment for Count I, five years' imprisonment for Count III, and five years' imprisonment for Count IV, with the sentences to run consecutively.
Defendant now appeals from the judgment of the trial court.
In his first point relied on, Defendant contends that the trial court erred by abusing its discretion in excluding testimony from Randy Zumwalt and R.C. concerning alleged prior false accusations by V.C., thereby denying him his rights to due process. Specifically, Defendant claims that the proffered evidence would have challenged the credibility of V.C and supported his defense that V.C. had a history of making false allegations "with the purpose of manipulating her environment."
The State asserts that this claim of error was not preserved and that this Court can only review it for plain error because Defendant did not cross-examine V.C. on this issue in his proffer of evidence at the pretrial hearing and because he did not make an offer of proof on this matter at trial. We disagree.
Following oral argument on this case, the State sent a letter to this Court that acknowledged that it had erred in claiming that Defendant had not made an offer of proof at trial, and conceded that the trial court had found that it was not necessary to repeat the preliminary offer of proof at trial.
We note that at the hearing on the motion to exclude the testimony of Randy Zumwalt and R.C. regarding the alleged prior false accusations by V.C. that defense counsel sought to preserve this claim of error. The trial court specifically concluded that it saw no need to repeat the proffered testimony of Zumwalt and R.C. on this issue at trial, and that it intended to consider the proffer of evidence at the hearing to also "be an offer of proof at trial." The State would fault Defendant for doing precisely what the trial court wanted him to do, namely not make a redundant proffer of evidence that it had already heard at trial. Regarding the failure to cross-examine V.C., the State is correct that a defendant should normally cross-examine a witness prior to introducing extrinsic evidence of prior false allegations. See State v. Long, 140 S.W.3d 27, 32 n. 7 (Mo. banc 2004). However, a decision not to cross-examine a witness regarding prior allegations does not automatically bar a defendant from introducing extrinsic evidence that such allegations were false. See id. If it would likely have been futile for defense counsel to cross-examine the witness given the trial court's reasons for refusing the offer of proof, then it is not a requisite that the witness be cross-examined. See id. The law does not require the undertaking of a useless act for the sole purpose of complying with a technical requirement. Id. In this case, we note that the trial court did not require V.C.'s testimony prior to making its ruling on this matter. The State offered to have V.C. testify, stating "I can call her and she can give her testimony as to both — both of those situations if you would like to hear from her before making your ruling." Rather than require V.C.'s testimony, the trial court proceeded to rule on the offer of proof, stating "[t]he sum total is I'm not going to allow the testimony or cross-examination of the victim as to any purported false accusations in years past." Its ruling made it clear that the trial court did not consider at least R.C.'s testimony to be relevant. It would have been futile for Defendant to attempt to cross-examine V.C., and accordingly the failure to do so did not result in a failure to preserve the claim of error.
The Missouri Supreme Court has articulated the standards for the admission of extrinsic evidence of prior false allegations by a witness in Long, 140 S.W.3d at 31-32, as follows:
. . . Prior false allegations are relevant to the witness' credibility. The relevance of the prior false allegation is thus derived primarily from the fact that the allegation was false and not entirely from the subject matter of the prior false allegation. The rule limiting the inquiry to prior false allegations that are the same as the charged offense erroneously focuses the relevance analysis entirely upon the subject matter of the allegation and ignores the fact from which relevance to witness credibility is derived; the fact that the allegation was false. Therefore, the fundamental requirement for admitting extrinsic evidence of a prior false allegation should be a showing of legal relevance in which the trial court must balance the probative value of the knowingly made prior false allegation with the potential prejudice. Of course, similarities between the prior false allegation and the charged offense as well as circumstances under which the allegation was made all factor into the relevance analysis. A prior false allegation could be so remote in time or made under circumstances so dissimilar to the charged offense that the prejudice outweighs the probative value. As with any other relevancy ruling, trial courts retain wide discretion in determining the legal relevance of prior false allegations.
. . . The preponderance of the evidence standard is consistent with other foundational requirements for admitting or excluding evidence in Missouri and is, therefore, the applicable standard for determining whether a defendant has established that the prosecuting witness previously made knowingly false allegations. As in other cases, the defendant may rely upon the full panoply of available evidence for establishing admissibility. Documents, witnesses and other such evidence may be admissible to demonstrate the relevance of prior false allegations.
(footnotes omitted). The Missouri Supreme Court has made it clear that the legal relevance of prior false allegations relates primarily to the falsity of the prior allegations and the bearing that this has on a witness' credibility, not solely from the subject matter of the prior false allegation. It requires that the trial court do a balancing test, weighing the probative value of the knowingly made false accusation against the potential prejudice. Id. at 31. Factors such as the remoteness in time of the prior false allegation, and its similarity or dissimilarity to the charged offense weigh into the balance. Id. at 31-32.
In the present case, the trial court found that Defendant failed to show by a preponderance of the evidence that the allegations made against Randy Zumwalt were false and that V.C. knew that the allegations were false. Randy Zumwalt said that the accusation was false, that he did not commit any sexual abuse against V.C. His testimony does not automatically constitute a preponderance of the evidence. The trial court was free to disbelieve some or all of his testimony, and apparently did so. Accordingly, the trial court did not abuse its discretion in excluding this extrinsic evidence.
The trial court's exclusion of R.C.'s testimony about an alleged prior false allegation by V.C. of physical abuse is more problematic when evaluated under the Missouri Supreme Court's holding in Long, which this Court is constrained to follow. The trial court did not make a finding regarding the preponderance of the evidence, stating rather that there was a possibility that the prior allegation against Rocky Zumwalt was false, and that it was not sure if there was a preponderance of the evidence. The trial court focused on the fact that alleged prior false allegations "are not the same sort of allegations that are involved in this case. . . ." adding "[a]nd that may be the most important thing. It's not prior allegations of child molestation or sexual misconduct of some kind." Dissimilarity between the prior false accusation and the charged offense is a factor that the trial court is to weigh in determining legal relevance. Id. at 31-32. However, it is not the only factor. The Missouri Supreme Court held in Long that the prior rule that limited the inquiry to prior false accusations that were the same as the charged offense "erroneously focuses the relevance analysis entirely upon the subject matter of the allegation and ignores the fact from which relevance to witness credibility is derived: the fact that the allegation was false." The record suggests that the trial court did not properly perform the balancing test required by Long, but rather focused exclusively on the fact that the alleged prior false allegation did not involve child molestation. While that dissimilarity is a factor, there are also similarities, namely that the prior allegation was also of abuse, albeit physical rather than sexual, was directed at an adoptive father, and resulted in the removal of V.C. from Rocky Zumwalt's control. The trial court did not discuss whether the prior false allegation was too remote in time or not. As in the Long case, there was no physical evidence of the charged crime that related to Defendant, and the jury's assessment of the relative credibility of the witnesses was key to the convictions of Defendant. Accordingly, the Defendant's conviction for Count IV must be reversed and remanded.
In Long, 140 S.W.3d at 29, there was physical evidence of a sexual assault, but there was no physical evidence that it took place at the defendant's residence or that he was one of the perpetrators.
This holding does not, however, automatically require that Defendant's other convictions be reversed and remanded. There is a rebuttable presumption that the erroneous exclusion of admissible evidence is prejudicial. State v. Walkup, 220 S.W.3d 748, 757 (Mo. banc 2007). This presumption can be rebutted by the State showing that the error was harmless beyond a reasonable doubt. Id. Regarding the conviction for Count IV, the State did not rebut this presumption. However, the other convictions are separate and distinct from Count IV, involving two different victims. Assuming arguendo that V.C.'s testimony was entirely lacking in credibility, there was independent evidence from which reasonable jurors could find beyond a reasonable doubt that Defendant engaged in illicit acts with J.C. and S.C. J.C. testified that on the night of May 5, 2005, Defendant touched her breasts and vagina under her nightclothes. S.C. testified that a few weeks prior to May 5, 2005, Defendant rubbed her breasts through her clothing. The exclusion of evidence that would weaken V.C.'s credibility, while prejudicial to the conviction for Count IV, was harmless error with regard to Counts I and III, which related to different victims and were based on evidence independent of V.C.'s testimony. The State did not link the credibility of V.C., J.C., and S.C., or seek to emphasize that three related alleged victims were more likely to be telling the truth than a single alleged victim. While it is true that the State consolidated the charges involving V.C., J.C., and S.C. together, we note that Defendant did not seek to sever the cases. The jury gave careful consideration to the credibility of V.C., J.C. and S.C., and weighed the testimony of each one, acquitting Defendant on charges of statutory sodomy, attempted victim tampering, and violating a full child protection order. Point sustained in part and denied in part.
Defendant argues that the separate testimonies of J.C., S.C., and V.C. served to bolster each other's credibility, and suggests that is in part why the State tried Counts 1 through VI together, and that as a consequence the convictions for Counts I, III, and IV should all be reversed because an attack on V.C.'s credibility was an attack on the entire case of the State. Defendant, however, cites no case law to support this proposition.
In his second point relied on, Defendant argues that the trial court erred by abusing its discretion in allowing the State's expert psychologist to engage in narrative testimony that bolstered the credibility of V.C. and S.C. over his objection. He further asserts that the trial court erred in denying his motion for a mistrial following psychologist's testimony that vouched for the credibility of V.C. and S.C., which invaded the province of the jury and thereby denied him a fair trial.
The trial court has broad discretion to admit or to exclude evidence.State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007) (quoting State v. Forrest, 183 S.W.3d 218, 223-24 (Mo. banc 2006)). We will reverse the trial court's ruling on the admission or exclusion of evidence only if the court clearly abused its discretion. Id. The trial court has abused its discretion when its ruling is clearly against the logic of the circumstances, and it is so unreasonable as to suggest a lack of careful consideration. Id. Also, appellate courts on direct appeal review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it essentially deprived the defendant of a fair trial.Id. Error by the trial court is not prejudicial unless there is a reasonable probability that the error affected the outcome of the trial.Id. at 145-46.
Defendant contends that the trial court abused its discretion in allowing psychologist to answer some questions in a narrative fashion. The form of witness examination at trial, whether in a narrative or interrogatory manner, is a matter committed to the trial court's discretion. State v. Clark, 693 S.W.2d 137, 142 (Mo.App. 1985). There is nothing inherently wrong or improper with answering a question in a narrative fashion. The questions at issue that psychologist answered could not be answered by a simple "yes" or "no." It is difficult to see how the State could have asked the questions in an interrogative fashion. We note that psychologist answered the questions, which were specific, with fairly brief responses. Permitting psychologist to answer these questions in an arguably narrative fashion was not an abuse of discretion.
Defendant further asserts that psychologist's answers to the questions at issue invaded the province of the jury by vouching for the credibility of V.C. and S.C. The general rule is that expert testimony is not admissible if it relates to the credibility of witnesses because it invades the province of the jury. State v. Link, 25 S.W.3d 136, 143 (Mo. banc 2000), cert. denied, 531 U.S. 1040, 121 S.Ct. 634, 148 L.Ed.2d 542 (2000). A witness can testify to specific facts that discredit another witness' testimony, as long as the witness does not directly comment on the veracity of another witness. Id. In criminal cases alleging sexual abuse of children, there are two types of expert testimony that frequently give rise to a challenge: general and particularized. State v. Price, 165 S.W.3d 568, 572 (Mo.App. 2005). "General profile testimony describes a generalization of behaviors and other characteristics commonly found in victims of sexual abuse which is usually admissible."Id. Particularized testimony is testimony relating to a specific victim's credibility as to whether he or she has been abused. Id. (quoting State v. Churchill, 98 S.W.3d 536, 539 (Mo. banc 2003)). Particularized testimony, which vouches for a victim's credibility, is usually inadmissible. Id. at 572-73. "Expert testimony that comments directly on a particular witness' credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witnesses of the same type under consideration invests `scientific cachet' on the central issue of credibility and should not be admitted." State v. Williams, 858 S.W.2d 796, 800 (Mo.App. 1993).
The State's questions did not ask psychologist whether she believed that V.C. and S.C. were telling the truth about being sexually molested, but rather how their behavior and other characteristics did not fit into the generalization of "victims" who make false allegations of child sexual abuse. Psychologist did not directly comment on the credibility of V.C. or S.C., nor did she express an opinion as to the veracity of witnesses of the same type. Rather, she stated that they did not want to disrupt their family. On cross-examination, psychologist had stated that one of the characteristics of a child making a false allegation is having an ulterior motive. Her reply to the State's question was to show that V.C. and S.C. did not exhibit that characteristic. It is appropriate for an expert to state a child's behaviors are consistent with a stressful sexual experience. Id. Accordingly an expert could state that a child's particular behaviors are not consistent with a general profile. This is what psychologist essentially did in her testimony.
Defendant cites to Churchill, 98 S.W.3d 536, and to Williams, 165 S.W.3d 796. In Churchill, 98 S.W.3d at 539-39, the State conceded that the testimony of the expert physician was improper, and the Missouri Supreme Court had only to determine if the defendant suffered prejudice. The expert in that case testified that the alleged abuse "was real," which the Missouri Supreme Court held to have introduced a real prejudice to the defendant, clearly invading the province of the jury to make the conclusion that the victim was telling the truth. In the present case, there is no concession by the State that the testimony of psychologist was improper, nor did such testimony directly vouch for the veracity of the victims, unlike that of the expert in Churchill. In Williams, 858 S.W.2d at 800-01, this Court held that the testimony of the expert physician in that case presented several problems.
The doctor's statements that "very rarely do children [sexually abused children] lie," that the "[i]ncidents of lying among children is very low, less than three percent," that if the child was not asked leading questions, then the child's spontaneous response "declares who it was [who sexually abused her]," and that the "physical findings and the behavioral indicators can only support what the child says," went beyond admissible testimony concerning general, behavioral characteristics of sexually abused children. Vouching too much for the victim's credibility, these statements supplied improper verisimilitude on the issue of whether the appellant was guilty. In addition, the testimony included improper quantification of the probability of the complaining witness' credibility.
(internal citation omitted). Very clearly this testimony vouched for the credibility of all witnesses "of the same type under consideration[,]" and went further by quantifying the probability of the credibility of the victim/witness. Psychologist's testimony in the present case does not approach that of the expert in Williams.
Assuming arguendo that psychologist's answers would be improper standing alone, we note that this was redirect examination, and that the questions were asked in response to an improper question from Defendant. In Defendant's cross-examination of psychologist, counsel asked psychologist what characteristics that children who make false allegations exhibit, and she responded, in narrative fashion, by discussing a number of such characteristics. This following exchange ensued:
Mr. Hamlett: Well, haven't you just with the exception of having admitted to their friends that they disclosed falsely[,] haven't you described [S.C] and [V.C.] to a T?
Psychologist: I don't believe so.
While it is proper for a witness to testify to specific facts that discredit the testimony of another witness, the witness cannot comment directly on the truthfulness of another witness. Link, 25 S.W.3d at 143. This is precisely what Defendant sought to do by asking that question. "[W]here the defendant has injected an issue into the case, the State may be allowed to admit otherwise inadmissible evidence in order to explain or counteract a negative inference raised by the issue that defendant injects." State v. Lingar, 726 S.W.2d 728, 734-35 (Mo. banc 1987), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). The State's questions on redirect examination were aimed at replying to Defendant's improper cross-examination of psychologist. The trial court did not abuse its discretion in admitting this evidence or in denying the motion for a mistrial. Point denied.
In his third point relied on, Defendant argues that the trial court erred by abusing its discretion by sustaining the State's objection and excluding his cross-examination of Wife regarding her dissolution of marriage action against him. Defendant contends that the exclusion of this impeachment evidence denied him due process of law because this evidence was "crucially relevant" to establishing the bias, prejudice, and interest of Wife as a witness.
The trial court sustained an objection by the State when Defendant asked Wife on cross-examination about her request for alimony. The State contends that Defendant made no offer of proof regarding what her testimony would have been, leaving nothing for this Court to review. The State also asserts that the question was of slight probative value that was outweighed by risk of distracting the jury, and that Defendant suffered no prejudice.
The exchange at issue is as follows:
Mr. Hamlett: You filed for divorce from [Defendant], haven't you?
Wife: Yes.
Mr. Hamlett: And besides asking for custody of the children you're asking — and support of the children you're also asking that you be paid alimony; is that correct?
State: Judge, I'm going to object. That's not relevant.
Mr. Hamlett: Bias, prejudice and interest.
State: Can we approach?
Court: No, the objection is sustained. Go ahead, ask another question.
Mr. Hamlett: Is the divorce final?
Wife: No.
Mr. Hamlett: I have nothing else.
Defendant made no offer of proof regarding Wife's testimony regarding the issue of maintenance or alimony. When the trial court sustains an objection to evidence that is proffered, the party that offers the evidence must show its relevancy and materiality by way of an offer of proof to preserve the matter for appellate review. State v. Pittman, 167 S.W.3d 232, 239 (Mo.App. 2005). Mere statements and conclusions of counsel are not sufficient for an offer of proof; the offer of proof must state specific facts that are sufficiently detailed to demonstrate the admissibility of the evidence sought to be introduced. Id. Without an offer of proof, there is nothing for this Court to review. See State v. Sanchez, 186 S.W.3d 260, 264 (Mo. banc 2006). However, an offer of proof is not necessary in every circumstance. State v. Comte, 141 S.W.3d 89, 93 n. 3 (Mo.App. 2004). An offer of proof is not required where there is a total understanding of the excluded testimony based on the record; the objection is not to specific testimony, but rather to a category of evidence; and the record shows that the excluded testimony would have helped the proponent. Id. In the present case, the objection was to specific testimony, not to a category of evidence; hence an offer of proof was necessary to preserve the matter for appellate review, and we can only review this claim for plain error. This Court is not required to engage in plain error review; rather the decision to grant or deny a request for such review is left to this Court's discretion. Rule 30.20;State v. Golden, 221 S.W.3d 444, 447 (Mo.App. 2007). For plain error, the defendant must show that not only has prejudicial error occurred, but also that the error affected his rights so substantially that a manifest injustice or miscarriage of justice would result inexorably if the error were left uncorrected. Id. It is the defendant's burden to prove that such manifest injustice or miscarriage of justice exists. Id. Plain error review requires a two-step analysis. Id. First, it must be determined whether the claimed plain error facially establishes substantial grounds for believing that a manifest injustice or miscarriage of justice has occurred; and, if so, it must be determined if such a manifest injustice or miscarriage of justice has actually occurred. Id.
Even assuming arguendo that this claim of error was preserved properly, there still would be no prejudicial error. A trial court has broad discretion in determining the scope of cross-examination of issues that may bear on the credibility of a witness. State v. Mann, 23 S.W.3d 824, 835 (Mo.App. 2000). Trial judges are given wide latitude for the purposes of placing reasonable limits on cross-examination for a number of reasons, including concerns about prejudice, confusion of the issues, and interrogation that is only marginally relevant. Id. A trial court's exclusion of offers of impeachment on collateral or immaterial matters does not constitute an abuse of discretion. Id. It is correct that the bias or interest of a witness towards a party is never an irrelevant matter, and may be proved by extrinsic evidence. Id. However, the authority of a party, particularly a criminal defendant, to demonstrate the existence and extent of the bias, prejudice, or hostility of a witness is subject to the sound discretion of the trial court. Id.
In the present case there was no prejudice to Defendant by the exclusion of testimony regarding whether or not Wife sought alimony in her dissolution of marriage action against Defendant. Reasonable jurors would be aware that it is common in divorce cases for a spouse to seek maintenance or alimony, as well as child support, and a favorable division of marital assets and debts. Further, reasonable jurors would also be aware that Wife would be more likely to receive more support from Defendant if he would be in a position to continue his employment rather than face incarceration for a considerable period of time, earning substantially less than his income as a lieutenant of prison guards. The trial court did not abuse its discretion in excluding this evidence, and certainly there was no manifest injustice. Point denied
The judgment of the trial court is reversed and remanded as to Count IV, and affirmed in all other respects.
Patricia L. Cohen, C.J., concurs. Glenn A. Norton, J., concurs.