State v. Lumumba, 2014 VT 85
By Andrew Delaney
This is a case about sentencing legal permanent residents and evidentiary issues. The evidentiary issues—while facially quite valid—don’t go very far, but the sentencing issue gets a reversal. Let’s look at the backdrop.
Defendant is a legal permanent resident, originally hailing from the Congo. In 2012, while a student at UVM, defendant was convicted of sexual assault of a fellow student. The backstory is that in summer 2010, he and the victim went for a bike ride to a Burlington beach, drank beer, and had oral sex, which victim felt was nonconsensual. In the fall, victim reported the incident, defendant was charged, and convicted after a three-day jury trial.
On appeal, defendant raises three evidentiary-based the-trial-court-screwed-up arguments: (1) in letting a clinical psychologist give expert testimony about rape-victim behavior in between victim’s direct testimony and the defense’s cross of victim; (2) in not letting defense counsel have victim look over transcripts during cross to show whether she had made a prior inconsistent statement; and (3) in letting in hearsay testimony from a UVM police officer who met with victim. Defendant also raises an issue with his sentence because his immigration status prevents him from meeting Vermont’s statutory requirement for sex-offender counseling before release, which effectively means a life-without-parole sentence for defendant.
Evidentiary-based issues, in my opinion, are long-shots on appeal. This case is no exception. The SCOV begins its analysis by noting that it’s an abuse-of-discretion standard for the SCOV to reverse.
Defendant’s first argument is that the trial court—in letting an expert testify about common behavior of rape victims (said behavior essentially mirroring victim’s behavior) in between victim’s direct testimony and cross-examination—allowed the State to impermissibly bolster victim’s credibility.
The SCOV tackles the expert testimony itself first. The basic idea is that experts in sexual assault cases can testify about common behavior and even that a victim’s behavior was consistent with common behavior. But the expert cannot comment directly on the victim’s truthfulness. That’s what I like to call a “clear-fuzzy” line.
Here, the SCOV reasons that the expert’s testimony was not over the line. The expert testified about some common “rape myths” and generalized behavior of rape victims. Thus, the SCOV concludes: “The expert’s testimony was within the boundaries of permissible evidence regarding the profile and common behaviors of sexual-assault victims, and it was not error for the trial court to allow it.”
Regarding the in-between-direct-and-cross presentation of the expert’s testimony, the SCOV concludes that this was permissible as well. The SCOV reasons that scheduling was a reasonable basis for the court to allow the presentation of testimony in this order and moves on.
During victim’s cross-examination by defendant’s counsel, defendant tried to show that victim was adding new details to her story by having victim read through transcripts of previous testimony to see whether she had mentioned a particular detail—putting her hands over her face—in the past. The trial court refused to allow it, and defendant argues that this was reversible error.
The SCOV disagrees. Here, the SCOV reasons that the trial court’s decision not to force victim to read through over a hundred pages of testimony falls within the trial court’s authority to exercise reasonable control over the presentation of testimony and avoid wasting time. Despite defendant’s arguments that victim’s testimony was thereby “unimpeached,” the SCOV concludes otherwise. The SCOV reasons that the defense made the jury aware that there had been prior testimony and that defense counsel mentioned it in his closing, so that’s that—no error on that point.
Defendant’s final evidentiary argument is that the trial court erred when it allowed a UVM police officer to testify based on some of the victim’s statements to him. The State filed a pretrial motion to allow the statements, which defendant opposed. The trial court allowed the statements, reasoning that the statements showed victim’s “then-existing state of mind at the time she reported the incident.” Defendant’s argument is essentially that the statements weren’t made at the same time as the alleged incident, so they can’t come in.
The SCOV reasons that defendant’s reliance on timeframe is misplaced. The statements the UVM officer testified to were not about the incident, but about victim’s concerns at the time of making the report. The SCOV reasons that this is within the then-existing-state-of-mind exception to the hearsay rule, there’s no abuse of discretion, and affirms the trial court on this point.
Next, the SCOV addresses defendant’s sentencing issue. After the conviction, there was a sentencing hearing. An attorney from Prisoner’s Rights testified that in his opinion it was virtually “guaranteed” that defendant would be subject to a detainer—meaning that as soon as he finished his to-serve sentence, he would be taken into custody by immigration and deported. Then a DOC probation officer testified that if defendant received a to-serve sentence rather that a split-to-serve sentence, then until the detainer was dropped or otherwise taken care of, defendant wouldn’t be eligible for sex-offender treatment, which is a prerequisite for release.
The defense requested a split-to-serve sentence of three years to life; the State requested a five-to-life sentence. The trial court, dissatisfied with defendant’s apparent failure to accept responsibility, imposed a to-serve sentence of eight-years-to-life, and in doing so “the judge stated that he had ‘no control over what the Department of Immigration does with [defendant]’ and ‘that [defendant] will no doubt be deported.’ He then said: ‘I don’t understand that process and I’m not going to attempt to, but it is a factor that I have to take into consideration.’”
The part of defendant’s argument that gets traction with the SCOV is that the trial court’s failure “to consider how DOC’s internal policy against offering treatment to inmates who are subject to a detainer would impact the severity of the sentence it awarded” was an abuse of discretion.
Even though the standard of review is deferential except in “exceptional circumstances,” the SCOV concludes that the trial court abused its discretion here. The trial court has wide discretion in imposing sentences, and “is required to consider a wide range of factors, including ‘the nature and circumstances of the crime, the history and character of the defendant, the need for treatment, and the risk to self, others, and the community at large presented by the defendant.’” The SCOV reasons that “due to the unusual severity of the sentence caused by the interaction between defendant’s immigration status and DOC’s internal operating procedures,” this case presents exceptional circumstances.”
The SCOV reasons that the court heard testimony from two witnesses explaining that defendant would essentially end up serving a life sentence due to the factors at play. Thus, “the court should have considered the effect of a to-serve sentence and acknowledged such consideration through findings on the matter.” The SCOV is not okay with the trial court essentially saying that it doesn’t know and doesn’t particularly care what happens.
The SCOV notes that the possibility of deportation doesn’t dictate leniency, but that because the record doesn’t indicate that the court knowingly imposed a determinate life sentence—the effective sentence here—it will reverse and remand for sentencing. Because the SCOV reverses the sentence, it doesn’t get into defendant’s Eighth Amendment arguments.
So defendant gets a reversal, but probably not the kind of reversal he really wanted.