2014 VT 85


State v. Lumumba (2012-254)
 
2014 VT 85
 
[Filed 1-Aug-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 

2014 VT 85

 

No. 2012-254

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden Unit,


 


Criminal Division


 


 


Yetha I. Lumumba


January Term, 2014


 


 


 


 


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.          
SKOGLUND, J.   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.
I.
¶ 3.          
The trial court decides whether evidence is admissible in the first
instance.  See V.R.E. 104 (“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 prejudice by allowing the expert to testify in
between the direct and cross-examinations of J.B.  
¶ 5.          
Vermont’s Rules of Evidence afford the court broad discretion to admit expert
testimony where “scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue.” 
V.R.E. 702; State v. Hazelton, 2009 VT 93, ¶ 16, 186 Vt. 342, 987
A.2d 915.  Beginning with State v. Catsam, this Court has repeatedly
observed that expert testimony regarding the profile of sexual assault victims
may greatly assist juries in assessing the credibility of complaining
witnesses.  148 Vt. 366, 369, 534 A.3d 184, 187 (1987); see also Hazelton,
2009 VT 93, ¶ 16; State v. Gokey, 154 Vt. 129, 133-37, 574 A.2d
766, 768-70 (1990).  In Catsam, we noted that the “unique psychological
effects of sexual assault on children place the average juror at a disadvantage
in understanding the behavior of the victim.”  148 Vt. at 369, 534 A.2d at 187.
 To that end, expert testimony has “demonstrated usefulness” in providing a
jury “with the benefit of a better understanding of the emotional antecedents
of the victim’s conduct.”  Id.  In situations where a victim’s behavior
may seem “superficially bizarre,” for example, expert testimony can “dispel
misconceptions about the behavior of victims” and “show that the conduct of the
complaining witness, however seemingly unusual, is consistent with the [victim]
profile.”  Gokey, 154 Vt. at 133, 574 Vt. at 768.  Such behavior might
include a delay in reporting, recantation, or a continued relationship with an
alleged abuser.  Id. at 133-34, 574 A.2d at 768.  While initially raised
in cases involving child victims, this reasoning has since been extended to adult
victims of sexual assault as well, under the logical corollary that “[a]s with
child sexual abuse victims, the jury may be at a loss to understand the behavior
of [an adult] rape victim.”  State v. Kinney, 171 Vt. 239, 250, 762 A.2d
833, 842 (2000).  The fact that such expert testimony may lead to inferences
that bolster a victim’s credibility in the eyes of the jury does not automatically
render such testimony inadmissible.  Hazelton, 2009 VT 93, ¶ 16.
¶ 6.          
Nonetheless, there are limits on what this type of expert testimony may include. 
Of particular concern is expert testimony that “is the equivalent of a direct
comment on the credibility of the testifying complainant.”  Catsam,
148 Vt. at 370, 534 A.2d at 188 (emphasis added).  In Catsam, where we
first decided this issue, the expert testified that children with
post-traumatic stress disorder (PTSD) were not likely to make up stories about
sexual abuse, and then concluded that, in her opinion, the child victim
suffered from PTSD.  We stated there that such testimony “went beyond the
psychological and emotional profile” of a PTSD victim and  “[w]hen viewed as a
whole . . . was tantamount to a direct comment that the
complainant was telling the truth about the alleged sexual assault for which the
defendant was charged.”  Id.  
¶ 7.          
By contrast, in Kinney, where the expert testified generally
about rape trauma syndrome and the behavioral patterns of sexual assault
victims, but never interviewed the victim or offered the jury an opinion as to
whether the victim exhibited any common behaviors of a sexual assault victim,
“there was little risk that [the expert] would be seen as a truth detector.”  171
Vt. at 251, 762 A.2d at 843.  When the Kinney expert then went further, and
subsequently testified that “at least 98% of the rapes reported actually
occurred,” we then deemed the testimony to have tipped “over the line” because
the jury could infer that scientific studies have shown that the victim is most
likely telling the truth and convict the defendant on that basis.  Id.
at 252-53, 762 A.2d at 844.  
¶ 8.          
In sum, our case law in this area has established a firm line between testimony
that may properly educate juries about the behaviors of victims and that
which directly comments on the victim’s truthfulness, the defendant’s
guilt, or whether the victim was in fact sexually abused.  See Gokey, 154
Vt. at 134, 574 A.2d at 768 (“While the expert may state that the complaining
witness exhibits symptoms typical of sexually abused children, she may not, at
least on this record, go so far as to conclude that the complaining witness is
a victim of sexual abuse.”); see also Hazelton, 2009 VT 93, ¶ 17 (stating
that testimony was admissible because expert “did not offer his expert opinion
as to [victim’s] truthfulness or the truthfulness of sexual assault victims
generally”); State v. Percy, 146 Vt. 475, 483, 507 A.2d 955, 960 (1986)
(holding that expert’s testimony that most rapists commonly claim consent or
amnesia should have been excluded because it “did not provide jurors with an
explanation” but simply cast doubt on defendant’s credibility).  
¶ 9.          
The expert testimony in this case did not cross that line.  Unlike in Catsam,
the expert here did not testify about the statistical likelihood that J.B. was
telling the truth.  Nor did she testify as to the statistical likelihood that
defendant was lying, or go so far as to conclude that J.B. was a victim of
sexual abuse.  Cf. Kinney, 171 Vt. at 252, 762 A.2d at 843; Percy,
146 Vt. at 483, 507 A.2d at 960.  Prior to trial, the expert had never met
either J.B. or defendant.  She reviewed J.B.’s deposition and the affidavit of
probable cause, but did not testify about either J.B. or defendant
individually.  Instead, the expert testified as to various “rape myths,” and the
“huge array of reactions” that female sexual assault victims may have—including
“freezing,” “bargaining,” or continuing to communicate with assailants.  The
fact that this testimony included many behaviors exhibited by J.B. does not
qualify as direct commentary on J.B.; rather, it served the permissible purpose
of assisting the jury to place J.B.’s behavior following the incident with defendant
into the context of common sexual-assault victim behaviors.  Though the
testimony may have served a “primarily rehabilitative” function for the
prosecution and bolstered J.B.’s credibility, that does not automatically
render it inadmissible.  Gokey, 154 Vt. at 133, 574 A.2d at 768.  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.[1]
¶ 10.      
Nor was it reversible error for the trial court to allow the State’s expert
to testify between J.B.’s direct examination and the defense’s cross-examination
of J.B. due to “scheduling conflicts.”  “[T]he exercise of a trial judge’s
control over the order of evidence presented is a matter for the discretion of
the trial judge” and “[d]iscretionary rulings are not subject to review if
there is a reasonable basis for the court’s action.”  Cliche v. Fair,
145 Vt. 258, 261, 487 A.2d 145, 148 (1984) (quotation omitted); V.R.E. 611(a)
(“The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence . . . .”); see
also State v. Tatko, 119 Vt. 459, 463, 128 A.2d 663, 666 (1957) (“[R]ules
for the introduction of evidence serve well the conduct of the trial, but they
do not have the effect of conferring a right upon the parties litigant to any
established pattern.”).  Here, scheduling was a reasonable basis for the court’s
actions, and defendant was not denied the opportunity to cross-examine the
witness in front of the jury.  There was therefore no reversible error in the timing
of the expert’s testimony between J.B.’s direct and cross examinations.
¶ 11.      
Defendant next argues that the trial court committed reversible error during
the cross-examination itself in not requiring J.B. to review transcripts in
order to confirm an inconsistency in her prior testimony.  On the second day of
defendant’s cross-examination of J.B., she testified that in the course of
giving defendant oral sex she showed him she was uncomfortable by “putting my
hands over my face.”  After confirming that J.B. previously made statements
about the incident to a detective and at a hearing, defense counsel then asked
J.B. whether she had ever mentioned putting up her hands in those prior recountings. 
J.B. replied that she could not remember whether she mentioned it or not, and
defense counsel then requested that she look at the transcripts to confirm
whether she ever made such a statement in her previous testimony.  The State objected,
arguing that it would take an hour or more for J.B. to review over a hundred
pages of transcripts from her previous testimonies, and the court denied the
request.  Defendant argues that by denying his request for J.B. to review the
transcripts, the trial court deprived him of his constitutional right to
confront J.B. and impeach her with a prior inconsistent statement.  After defendant
was convicted, he filed a motion for a new trial raising this issue as partial
ground for that request, which the trial court again denied.  
¶ 12.      
The trial court may exclude evidence, even if relevant, for
“considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”  V.R.E. 403.  Likewise, the rules give the court power to
“exercise reasonable control” over the presentation of evidence to make
“interrogation and presentation orderly and effective” and to “avoid needless
consumption of time.”  V.R.E. 611(a).  
¶ 13.      
The court’s decision not to force the witness to peruse over a hundred pages
of testimony falls within the purview of “reasonable control” in an attempt to “avoid
needless consumption of time.”  Defendant was afforded the opportunity to
conduct a thorough cross-examination of J.B., during which defense counsel established
a number of inconsistencies with her past statements by having her read
portions of her prior testimony.  In Jones v. State, an Alaskan court held
that it was not error for the trial court to refuse to allow a witness to read
a 172-page transcript to confirm that she had not made a certain statement in
her deposition testimony.  812 P.2d 613, 618-19 (Alaska Ct. App. 1981).  The Jones
court reasoned that forcing a witness to read hundreds of pages “would have
caused undue delay in the trial,” “would have been an inefficient use of the
court’s time,” and that there were “time-saving alternatives available to
[defendant]” such as having a third party testify that the statement was not
present in the transcripts.  Id. at 619.  Defendant does not point to any
cases where this Court or others have found error in not forcing a witness to review
past testimony for an omission proving a previous inconsistent statement.  We
follow the Jones court’s logic and hold there was no abuse of discretion
here for the same reasons.
¶ 14.      
Further, although defendant contends that the jury was left with the “unimpeached
impression” that J.B. testified to covering her mouth, the jury was not left unaware
of this issue.  Defense counsel questioned J.B. about it twice, and J.B.
admitted that she did not recall if she testified to putting her hands over her
mouth at any point during her testimony on three separate occasions—her discussion
with the police detective, at the bail hearing, or at her deposition.  J.B.
went on to confirm that she had reviewed all of the transcripts of her
testimony in preparation for the trial and still couldn’t remember whether they
contained any previous mention of her putting her hands over her mouth but
admitted “it’s possible” that they did not.  Then, in its closing argument, defense
counsel clearly stated that “[d]uring trial, she stated that she put her hands
up in front of her mouth, yet at no prior hearing or interview or deposition
does this crucial fact come out”—thereby ensuring that the jury was aware of
this inconsistency.  Ultimately, this inconsistency was one of a number of inconsistencies[2]
the defense established in J.B.’s various retellings of the incident under oath,
which the jury was fully aware of, and yet still found her credible.  The
defendant was not denied his constitutional right to cross-examine J.B., nor
was he denied all opportunity to impeach her as to any inconsistency in her
prior testimony about where her hands were during the incident.  The trial
court’s ruling was a limited denial of the request for J.B. to review the
entirety of her previous sworn testimony to confirm that she did not make that
statement.  There were other more efficient methods for the defense to make
this same point, and it was not error for the trial court to rule as such.  
¶ 15.      
Next, we address the third and final evidentiary issue raised by
defendant: that a UVM police officer’s testimony included inadmissible hearsay statements
made by J.B. to the officer during an interview about the delay in her
reporting of the incident and why she eventually came forward.  Prior to the
trial, the State filed a motion requesting the officer’s testimony be admitted under
the hearsay exceptions in Vermont Rules of Evidence 801 and 803.  Defendant
opposed the motion.  The trial court allowed the officer’s testimony under Rule
803(3), as evidence of J.B.’s then-existing state of mind at the time she reported
the incident.  Following J.B.’s testimony, the officer testified to
conversations she had with J.B. in November and December of 2010, several
months after the June incident with defendant, during which the officer stated
that J.B. was concerned about defendant coming back into her life, wanted to do
some safety planning with the officer, and wanted information about a
trespass order issued by UVM against defendant and how a sexual assault report
would affect that order.  J.B. told the officer that she would be willing to
make a report only if “it would completely sever [defendant] from the university.”
 
¶ 16.      
Defendant argues that admitting J.B.’s hearsay statements through the
officer constituted reversible error because the statements were not made contemporaneously
with the June incident; rather, they were made several months later.[3] 
Rule 803(3) allows for admission of out-of-court statements “of the declarant’s
then-existing state of mind, emotion, sensation, or physical condition (such as . . . mental
feeling . . .).”  As with the other hearsay exceptions listed in
Rule 803, these statements are allowed in “because their trustworthiness is sufficiently
high to justify admission even if the declarant is available to testify.”  Reporter’s
Notes, V.R.E. 803.  Accordingly, the “circumstances of spontaneity” that
accompany a declarant’s then-existing state of mind are particularly important
to this exception.  Id.; see also K. Broun, 2 McCormick on Evidence
§ 274 (7thed. 2014) (“As with statements of bodily condition,
the special assurance of reliability for statements of present state of mind
rests upon their spontaneity and resulting probable sincerity.”).  
¶ 17.      
However, defendant misreads the moment in time that is crucial to the
declarant’s statements in this instance.  The delay between J.B.’s statements
to the officer and the incident with defendant is not dispositive, because
these particular statements were offered to show J.B.’s state of mind during
her discussions with the officer to explain why J.B. waited so long to
report the incident to officials.  The fact that J.B. was “concerned,” worried
for her safety, and wondering how her reporting the incident would affect the
trespass order against defendant were relevant to show her state of mind “at
the time of the statement”—after the incident but before she reported it.  Broun,
supra.  The officer did not testify as to any of J.B.’s recounting of
the events at the beach or her feelings at the time of the incident.  Thus, as
the hearsay statements did “not includ[e] a statement of memory or belief to
prove the fact remembered or believed,” V.R.E. 803(3), the court did not abuse
its discretion by admitting these statements under the hearsay exception in Rule
803(3).  
II.
¶ 18.      
Finally, we address defendant’s concerns regarding the effect of his
immigration status on his sentencing and whether the sentence violates the constitutional
prohibition against cruel and unusual punishment.  Following the trial, the
jury convicted defendant of nonconsensual sexual assault under 13 V.S.A. § 3252(a)(1). 
The court then held a sentencing hearing, which included testimony on
defendant’s immigration status and its effect on his potential punishment.  First,
the court heard from an attorney for the Prisoner’s Rights Office of the
Defender General, who explained federal immigration procedure for convicted
felons and the impact of defendant’s immigration status on a sentence to serve.
 The attorney testified that because sexual assault is a deportable offense
under federal law[4]
and defendant is not eligible for a waiver of deportation, in his opinion it
was “guaranteed” that defendant would be deported after incarceration.  Procedurally,
the attorney stated, Immigration and Customs Enforcement (ICE) would send a
detainer to the Department of Corrections (DOC) while defendant was in prison,
and upon his release ICE would then take him directly into custody and commence
deportation proceedings.  The attorney further explained that defendant would
be picked up by ICE only after he finished any to-serve sentence and that defendant
would never be eligible to be out on probation. 
¶ 19.      
The court then heard from a DOC probation officer, who testified regarding
defendant’s eligibility for sex offender treatment, which is a prerequisite for
release of a sexual assault convict under 13 V.S.A. § 3271(d), if he was
subject to a detainer.  The officer testified that if defendant received a to-serve
sentence instead of a split-to-serve sentence, defendant would not be eligible
for treatment while there was a detainer on him, and thus the detainer would
“have to be dropped or taken care of” before he would be eligible for release. 
If defendant did not go through treatment, the officer stated that defendant
would serve the maximum of any sentence awarded, directly affirming that if the
maximum was life, defendant would serve a life sentence.  
¶ 20.      
Following this testimony, the defense proposed that the court sentence
defendant to the statutory minimum of three years to life, split-to-serve three
years.  The State requested a sentence of five years to life.  Emphasizing
what it saw as a failure by defendant to accept responsibility for the crime,
the court sentenced defendant to serve eight years to life.  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.”  
¶ 21.      
Defendant argues that based on the sentencing hearing testimony, the
inevitable issuance of a detainer means that DOC will not release him before the
end of his maximum life sentence.  As a result, defendant maintains that his
sentence is effectively a life sentence without the possibility of parole,
which he argues violates the Eighth Amendment prohibition against grossly
disproportionate sentences.  As part of defendant’s argument, he contends that
the trial court abused its discretion in failing to consider how DOC’s internal
policy against offering treatment to inmates who are subject to a detainer[5]
would impact the severity of the sentence it awarded.  We agree with this last argument.

¶ 22.      
As with evidentiary rulings, our review of sentencing matters is
limited.  State v. Daley, 2006 VT 5, ¶ 6, 179 Vt. 589, 892 A.2d 244
(mem.).  Sentencing is solely the function of the trial judge, State v.
Artbeitman, 131 Vt. 596, 599, 313 A.2d 17, 19 (1973), and we review an
imposed sentence for abuse of discretion.  State v. Bushway, 146 Vt.
405, 408, 505 A.2d 660, 662 (1985).  “Absent exceptional circumstances, we will
defer to the court’s judgment so long as the sentence is within the statutory
limits and was not based on improper or inaccurate information.”  Daley,
2006 VT 5, ¶ 6.
¶ 23.      
In giving trial judges wide discretion to fashion appropriate sentences,
Vermont has adopted a situational sentencing scheme whereby the court tailors
the punishment within the statutory range to fit the defendant in question. 
When imposing a sentence, the court 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.”  13 V.S.A.
§ 7030(a).  As a result, “[s]entences are imposed with regard to the
situation and nature of the offender as well as according to the crime
charged.”  State v. Cyr, 141 Vt. 355, 358, 449 A.2d 926, 927 (1982).  
¶ 24.      
Though this Court is strictly limited in its review of sentences that
fall within the statutory range, as the sentence here does, this case presents
an example of “exceptional circumstances,” id., due to the unusual
severity of the sentence caused by the interaction between defendant’s immigration
status and DOC’s internal operating procedures.  As stated above, we require
trial courts to consider the individual defendant before them as well as the
crime committed when imposing sentences.  Such consideration must logically
include circumstances particular to a defendant that would result in what is
essentially a fixed sentence equal to the maximum.  
¶ 25.      
Here, the trial court heard testimony from two witnesses that due to the
near-certainty of his being placed under a detainer, defendant would serve the
maximum of any to-serve sentence because he would not qualify for required
pre-release treatment under DOC rules.  Having heard this evidence, which was
uncontested by any witnesses from the State, the court should have considered
the effect of a to-serve sentence and acknowledged such consideration through
findings on the matter.  Instead, the court declared that it did not understand
the immigration process and would not attempt to.  Later, the court stated that
the sentence awarded was “in consideration of the fact that you may be subject
to deportation at some point in the future,” but there was no mention of the
fact that defendant was likely facing a life sentence without parole.  The lack
of any findings whatsoever as to defendant’s situation in light of the evidence
presented at the sentencing hearing beyond the statement that defendant would
“no doubt be deported, but that is nothing that I control” is indicative of the
court’s failure to consider whether the sentence issued would, in fact, be
effectively a determinate life sentence.  Without any substantive indication of
the court’s understanding that such a sentence was likely the result, and only
a declaration that it did not understand and refused to try to understand this
possibility, we hold that the court did not adequately consider the factors
presented by defendant’s individual situation. 
¶ 26.      
We note that this holding is not in conflict with our previous holding
in State v. Avgoustov, where the noncitizen defendant objected to the
sentencing court’s consideration of his likely future deportation as a “neutral
factor,” arguing that he should have received a more lenient sentence in light
of the additional consequence of deportation.  2009 VT 14, ¶¶ 8-10, 185
Vt. 610, 969 A.2d 139 (mem.) (“The fact that a defendant in a Vermont court may
face incarceration under federal authority upon the expiration of his state sentence
need not have any impact on the sentence the Vermont court imposes.”).  We
declined to require sentencing courts to give more lenient sentencing treatment
to noncitizen offenders than citizen offenders, and noted that the operation of
federal law on a defendant’s state-imposed sentence is not within the state
court’s control.  Id. ¶ 9.  Here, defendant’s situation presents a
different question from that which we addressed in Avgoustov. 
Deportation and any additional punishment it may impose on defendant is not at
issue; rather, the issue we are addressing is whether the court properly
considered defendant’s individual situation and its effect on a potential
sentence before fashioning such a sentence.  The court in this case, like the
sentencing court in Avgoustov, made findings regarding defendant’s
deportation—it found defendant “will no doubt be deported” and “considered the
prospects of [defendant] being deported”—but made no comments or findings on
the impact of DOC’s policy regarding detainers on the sentence defendant would
serve.  
¶ 27.      
Thus, while the trial court did not have an obligation under Avgoustov
to reduce the sentence awarded in consideration of imminent deportation upon
release from prison, the court did have an obligation under Vermont’s
individualized sentencing process to examine defendant’s case and to consider
the consequences of his particular situation in fashioning a sentence.  Stating
that it did not care to understand these consequences was a failure of this
obligation and an abuse of discretion; awarding a sentence range of which the
only evidence presented at sentencing indicated was not likely to be a range at
all required more from the court in the way of findings than the court
provided.  We therefore reverse and remand for resentencing in consideration of
the ramifications of defendant’s particular situation.  As we reverse on these
grounds, we do not reach defendant’s Eighth Amendment claim.
The trial
court’s evidentiary rulings are affirmed.  Reversed and remanded for resentencing.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 


[1] 
There is some question as to whether defendant’s objection to the expert’s
testimony was properly preserved for appeal.  Prior to trial, defendant filed a
motion to exclude or limit the expert’s testimony, which the court denied.  At
trial, the defense first objected to the timing of the expert’s testimony taking
place between J.B.’s direct and cross-examinations.  Then, after the
State offered the psychologist as an expert to the court, the court asked if defendant
objected and counsel replied, “[n]o objection to that in psychology, Your
Honor.  However, I do want to renew my objections that I had stated previously
regarding this witness.” It is unclear whether this objection referred to the
prior objection over the timing of the testimony or to the content of the
testimony, although the phrase “[n]o objection to that in psychology” suggests the
former.  Regardless, as we hold that the expert’s testimony was admissible, the
questionable preservation of this objection does not affect the outcome of this
issue.


[2] 
In a post-judgment ruling, the trial court acknowledged that there were “a number
of inconsistencies between the complaining witness’s trial testimony and pre-trial
statements to the police, testimony at a bail review hearing, and during a
deposition.” 


[3] 
Defendant also argues that the officer’s statements were not admissible under Rule
801(d)(1)(B).  As we hold that this testimony was properly admitted under Rule
803(3), we need not address defendant’s Rule 801(d)(1)(B) argument.


[4] 
8 U.S.C. § 1227(2)(A)(iii). 


[5] 
The parties do not dispute that defendant will almost certainly be subject to a
detainer, though one is not currently in effect.  


