Professional Documents
Culture Documents
Government of The Virgin Islands v. Louis Scuito, 623 F.2d 869, 3rd Cir. (1980)
Government of The Virgin Islands v. Louis Scuito, 623 F.2d 869, 3rd Cir. (1980)
2d 869
6 Fed. R. Evid. Serv. 336
In this appeal from a conviction for forcible rape, 1 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.
I.
2
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."2
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),3 if the testimony that was adduced created the
opportunity. The trial judge asserted that the evidence could be admissible only
if he became satisfied that it was relevant and met the Fed.R.Evid. 403 standard
of probative value outweighing prejudice to the defendant. "For that purpose,"
he said, "I will hear testimony to be offered outside of the presence of the jury
and make that determination."
The defense called two witnesses at the first trial: the defendant himself and a
next-door neighbor who was defendant's former roommate. The latter answered
"no" to defense counsel's question whether he knew anything about the
defendant that would indicate any abnormal sexual behavior on his part. Prior
to cross-examining the former roommate, the prosecutor asked for "a ruling
with respect to my specific question," to which the court replied, "Well, ask the
question, I don't give any rulings in advance." The prosecutor thereafter asked
the witness whether he would consider rape to be abnormal sexual behavior.
The next question, "Would your consider a man that took a flare gun ," was
interrupted by defense counsel's objection that the prosecutor "was getting into
the same line we were discussing previously."
Asked if the question was a hypothetical one, "not related to the facts," the
prosecutor replied: "It is not related to the facts of this case." The objection was
overruled and the prosecutor asked: "Would you consider a man taking a flare
gun, holding it at a woman and telling her he will disfigure her if she didn't
allow him to have intercourse with her, would you consider that to be abnormal,
aberrant sexual behavior?" After an affirmative reply, the prosecutor asked, "If
you had heard ," only to be cut off by the court disallowing the question and
indicating that it "goes to something that has not been put in issue." Shortly
thereafter, when the defense rested and the jury was excused, defense counsel
moved for a mistrial on the basis of the question about the flare gun.
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.4
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.
In motions preceding the second trial, the defendant asked that the indictment
be dismissed on double jeopardy grounds, or, if it were not, for an order
requiring a psychiatric examination of the complainant "and further providing
that the results of (the) examination be made available to the defense for
possible use at trial." Both motions were denied and, after a trial with
essentially the same evidence as in the first, but without the prejudicial
incidents noted by the judge, Scuito was convicted.
II.
10
12
Scuito argues that the trial judge erred in denying his motion to dismiss the
indictment by applying the wrong legal standard to his double jeopardy claim.
He contends that the court required a showing of "substantial prosecutorial
misconduct," whereas "gross negligence" ought to be sufficient.5 On the other
hand, the Government urges us to restrict the double jeopardy bar to mistrials
declared because of prosecutorial recklessness. 6
13
14
14
15
16
It had been decided at pretrial discussions that the alleged other rape would not
be mentioned in the prosecutor's opening statement and that the prosecutor
would request a hearing out of the presence of the jury if subsequent events led
the government to believe the evidence was admissible. The prosecutor did not
in fact mention the incident in her opening statement and believed she was
complying with the pretrial decision when she asked for a sidebar conference.
Thinking more routine matters were at stake, the judge instructed her to
continue questioning and said that he would wait for an objection before
making a ruling.
17
The trial judge ascribed no bad motives to the prosecutor's conduct and indeed,
concluded that, at most, "misjudgment" rather than "misconduct" was
involved.13 Thus, whether the standard be gross negligence, recklessness, or
misconduct of a more intentional nature, any prosecutorial error in conducting
the first trial did not trigger the Fifth Amendment's bar to double jeopardy.
III.
18
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:
19 I have been informed by any number of persons in the community that the said
(1)
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;
20 Further, my observation of the said complainant at the first trial herein showed,
(2)
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)
21 That the foregoing observations are highly indicative of a personality which
(3)
fantasizes to extremes and which indulges in and seeks altered states of
consciousness(.)
22
The trial judge denied the motion because to require a psychiatric examination
"would violate the spirit of (Fed.R.Evid.) 412." Scuito contends that any
reliance on Rule 412 is legal error and that, by relying on the rule, the judge
either abused his discretion or failed properly to exercise his discretion. It is
apparent, though the defendant does not so state, that different consequences
would flow from these alternative conclusions: if the judge abused his
discretion to the prejudice of defendant, a new trial should be ordered; if he
failed to exercise his discretion out of a mistaken belief that Rule 412 controlled
the issue, we should remand so that he may consider the matter anew. We
conclude that the court exercised its discretion and that it was not abused.
23
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.14 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." United States v. Benn, 476 F.2d
1127, 1131 (D.C. Cir. 1972) (Bazelon, C. J.); see Ballard v. Superior Court, 64
Cal.2d 159, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849 (Cal.1966). But cf.
United States v. Dildy, 39 F.R.D. 340, 342 (D.D.C.1966) (courts have no power
absent a statute to compel complainant to submit to psychiatric examination).
24
United States v. Benn, 476 F.2d at 1131. Benn, it should be noted, held that the
trial judge did not abuse his discretion in declining to order the examination of
an admittedly mentally defective complainant.15
27
28
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.
III.
29
The defendant was convicted under V.I. Code Ann., tit. 14, 1701(3)
A mantra has been defined as ("a) sound aid used while meditating. Each
meditator has his own personal mantra which is never to be revealed to any
other person." Malnak v. Yogi, 592 F.2d 197, 198 (3d Cir. 1979). When asked
on cross-examination what a "mantra" is, the complainant stated:
It's something that you do to put yourself (sic) rather than worrying about all
the other things that are going on outside of your own self you try to center
your consciousness and like bring it to a good state of mind.
At one point the witness, obviously distraught, had blurted out, "Louie, why did
you do it." Later she said, "I have known Louie for one year, I can't believe (he)
would do that." Both times, the court admonished her not to volunteer such
comments and instructed the jury to disregard them
The gross negligence standard for precluding retrial has been adopted by two
courts of appeals. See United States v. Crouch, 566 F.2d 1311, 1318 n. 9 (5th
Cir. 1978) ("We have held . . . that prosecutorial overreaching includes gross
negligence."); United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976)
(same); United States v. Beasley, 479 F.2d 1124, 1126 (5th Cir.), cert. denied,
414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); United States v. Martin,
561 F.2d 135, 139-40 (8th Cir. 1977)
The standard the Government would have us adopt is stated thus: "(W)here a
prosecutor engages in intentional misconduct which he or she knows has the
potential for producing a mistrial and the court determines that the prosecutor
was either indifferent to such an outcome or had reason to seek it, the Double
Jeopardy Clause bars a retrial." Brief for Appellee at 20; see id. at 22 (retrial
should not be barred unless there is good reason to believe that the court or
prosecutor was "indifferent" to possibility of mistrial)
scant care. It has been described as a failure to exercise even that care which a
careless person would use. Several courts, however, dissatisfied with a term so
nebulous, and struggling to assign some more or less definite point of reference
to it, have construed gross negligence as requiring willful misconduct, or
recklessness, or such utter lack of all care as will be evidence of either
sometimes on the ground that this must necessarily have been the intent of the
legislature. But it is still true that most courts consider that "gross negligence"
falls short of a reckless disregard of consequences, and differs from ordinary
negligence only in degree, and not in kind. There is, in short, no generally
accepted meaning; but the probability is, when the phrase is used, that it
signifies more than ordinary inadvertence or inattention, but less than conscious
indifference to consequences; and that it is, in other words, merely an extreme
departure from the ordinary standard of care.
W. Prosser, Handbook of the Law of Torts 34, at 183-84 (4th ed. 1971)
(footnotes omitted). The Model Penal Code distinguishes between acting
recklessly and acting negligently according to whether a person "consciously
disregarded" or simply "should be aware of" a substantial and unjustifiable risk.
Model Penal Code 2.02, reprinted in 10 Uniform Laws Ann. at 465. No
definition of gross negligence appears.
8
United States v. DiSilvio, 520 F.2d 247, 250 (3d Cir.), cert. denied, 423 U.S.
1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); see United States v. Jorn, 400 U.S.
470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1970) (dictum). In DiSilvio, we
suggested that prosecutorial misconduct must be "intentional," and not simply
negligent, regardless of the level of the negligence, to bar retrial. See 520 F.2d
at 250
10
Intention as to result is irrelevant to both concepts. See note 6 supra. Rather, the
distinguishing characteristic, to the extent one may be found, seems to be
whether or not the indifference to a prescribed standard of conduct was
conscious or intentional. See id
11
In a colloquy on the mistrial motion between defense counsel and the court, the
trial judge seemed to indicate that defense counsel, Mr. Stout, first put the
defendant's character at issue:
MR. STOUT: I was not the one that put this aspect of character in issue
anyway. It was the questioning as I recall of Mrs. Halpern of Mr. Scuito about
13
In the opinion denying defendant's motion to dismiss the indictment before the
second trial, the court stated:
The distinction must be made between misjudgment and misconduct. If
anything the former may have been present in this case. Evidence as to the
latter, if present, escaped the Court's notice. Counsel on both sides it appears,
committed trial error.
14
15
16
There was no committee report on the Privacy Protection for Rape Victims Act
of 1978, which added Rule 412 to the Federal Rules of Evidence. Comments on
the floor of the House by Representatives Mann, Wiggins, and Holtzman are
reported at 124 Cong.Rec. H 11944-45 (Oct. 10. 1978) and reprinted in 28
U.S.C.A. Fed.R.Evid. 412 note (Supp.1979). Comments in the Senate by
Senators Thurmond, Bayh and Biden are reported at 124 Cong.Rec. S 1857981 (Oct. 12, 1978)
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