Government of the Virgin Islands v. Scuito

ADAMS, J.

In this appeal from a conviction for forcible rape, the defendant Louis Scuito asserts two errors: (1) The trial judge erred in not barring a new trial on double jeopardy grounds after a mistrial was declared on Scuito's motion because of certain prejudicial questions asked by the prosecutor. (2) The trial judge abused or failed to exercise his discretion in denying the defendant's motion for a psychiatric examination of the complainant. Finding neither ground persuasive, we will affirm the conviction.

The complainant worked as a waitress at the Drunken Shrimp restaurant, where the defendant was a frequent patron. When the complainant worked late on the night of July 9, 1978, the owner of the restaurant arranged for Scuito to give the complainant a ride to her apartment. It is undisputed that Scuito took a detour down a beach road, where the two had sexual intercourse, after which he took the complainant home. The crucial issue at trial was solely whether she consented.

According to the complainant, Scuito turned down the beach road to relieve himself, and then continued to a turnaround, stopped the jeep, and began kissing her. She expressed lack of interest, but the defendant then told her he had a knife and would throw her into the ocean if she did not cooperate. She testified that she did not actually see the knife in the dark, but felt "something metal" cut into her neck, after which she ceased resistance and attempted to calm him and avoid harm by cooperating. At trial there was medical and other testimony of a cut on the side of the complainant's neck where she said the knife was held. After taking off her clothes, the defendant raped and sodomized her. During the course of the assault she prayed and recited her "mantra." Upon being dropped off at home, she kissed the defendant on the forehead because, she testified, "I was praying for him" and "it was just kind of like an end to the prayer."

Scuito testified that he casually knew the complainant and her sister and had previously driven them home from the restaurant. He said that on the night of July 9, when he gave the complainant a ride to her apartment, she seemed "a little spaced, not all there." While riding home, she offered him marijuana and he drove off the main road to smoke it with her. He later "came on to her," he said. Although initially she protested, he eventually changed her mind without using or threatening any physical force.

Prior to the first trial there had been a discussion between counsel and the court regarding the admissibility of evidence that Scuito previously had raped another young woman after threatening to shoot her with a flare gun. Defense counsel contended that such evidence would be relevant only if the defendant put his character in issue, which he did not at that time intend to do. The prosecutor agreed not to mention the other alleged rape in the opening statement to the jury, but reserved the right to seek admission of the evidence under Fed.R.Evid. 404(b), if the testimony that was adduced created the opportunity.

The trial judge granted a mistrial, and said he based his decision on three incidents in the trial. First, when the owner of the Drunken Shrimp testified, she made two spontaneous outbursts indicating her belief that Scuito was guilty. Second, the complainant had put the defendant's character in issue by suggesting he had had homosexual relationships. Third was the reference to the flare gun.

As an alternative to his double jeopardy claim, Scuito moved before the second trial for a psychiatric examination of the complainant. In a supporting affidavit, his attorney made the following specific representations:

(1) I have been informed by any number of persons in the community that the said complainant appears to be often, if not almost constantly, in a "spaced out" or trancelike state; I have personally observed this; I have been further informed by persons in the community that the said complainant is addicted to, and does continually use, controlled substances, and that she is frequently in altered states of consciousness therefrom; and I have further observed and been told of the said complainant's habit of dressing and being seen publically in see-through top garments which seem indicative of socially aberrant behavior;

(2) Further, my observation of the said complainant at the first trial herein showed, in my opinion, a rather strange and mysterious countenance on her part, and her testimony appeared strange, not only from the standpoint of her account of not reporting the alleged crimes until the next day, but particularly from her admitted interest and devotion to a certain book, written by a guru devotee of Timothy Leary which contains passages of religious-like worship of LSD and other mind-altering drugs; (and)

(3) That the foregoing observations are highly indicative of a personality which fantasizes to extremes and which indulges in and seeks altered states of consciousness(.)

Defendant does not press the extreme position, espoused by Wigmore, that a psychiatric examination of a complainant should be required in all sexual offense prosecutions. Rather, defendant agrees with the Government that the decision to order an examination is "entrusted to the sound discretion of the trial judge in light of the particular facts."

This discretion is not, of course, unbounded, for there are countervailing considerations weighing heavily against ordering a psychiatric examination of a complainant. As set out by the Court of Appeals for the District of Columbia Circuit, they are that a psychiatric examination may seriously impinge on a witness' right to privacy; the trauma that attends the role of complainant to sex offense charges is sharply increased by the indignity of a psychiatric examination; the examination itself could serve as a tool of harassment; and the impact of all these considerations may well deter the victim of such a crime from lodging any complaint at all.

Fed.R.Evid. 412 is specifically addressed to evidence of a rape victim's prior sexual conduct, whereas defendant's motion was not an attempt to introduce such evidence, but an effort to obtain an expert opinion regarding the complainant's general ability to perceive reality and separate fact from fantasy. Because the rule does not directly apply to his motion, the defendant argues that the court either abused or did not exercise its discretion in denying the motion. The judge's ruling, however, was not based on the letter but on the spirit of Rule 412. The principal purpose of that rule is, as its legislative history demonstrates, quite similar to the countervailing considerations quoted above: "to protect rape victims from the degrading and embarrassing disclosure of intimate details about their private lives." The rationale, according to one commentator, "is to prevent the victim, rather than the defendant, from being put on trial."

We hold that in relying on the spirit of Rule 412 the trial judge exercised discretion, and that nothing alleged in defense counsel's affidavit indicates that he abused his discretion. To the extent admissible, and we express no opinion on that matter, evidence that the complainant was thought by members of the community to indulge in drugs leading to "altered states of consciousness" or to dress in a manner "indicative of socially aberrant behavior" could be introduced by direct rather than expert testimony. If, however, such matters are not relevant or otherwise admissible, there is no justification for letting them into the trial by allowing an expert to give his opinion regarding them. As to defense counsel's observations of the complainant at the first trial, we note that the trial judge as well had an opportunity to observe whether her manner or testimony was sufficiently indicative of mental disturbance to justify a psychiatric examination.

The judgment of the trial court will be affirmed.