United States v. Terrance Kenneth Provost

875 F.2d 172
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 22, 1989
Docket87-5351
StatusPublished
Cited by60 cases

This text of 875 F.2d 172 (United States v. Terrance Kenneth Provost) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Terrance Kenneth Provost, 875 F.2d 172 (8th Cir. 1989).

Opinion

MAGILL, Circuit Judge.

Terrance K. Provost (Provost) appeals from his conviction for aggravated sexual assault. 18 U.S.C. §§ 1153, 2241(c), 2245(2)(A). Provost alleges seven grounds for error: (1) denial of a motion to appoint an independent psychologist to examine the *174 victim; (2) permitting an expert witness to express an opinion on the credibility of the victim; (3) admission of hearsay testimony; (4) failure to exclude evidence going to the credibility of an alibi witness; (5) the denial of defendant’s offer of proof regarding the victim’s prior inconsistent statements; (6) denial of a motion for acquittal premised on the insufficiency of the evidence; and (7) lack of jurisdiction. We reject each of Provost’s contentions and affirm his conviction.

I.

Provost was charged with aggravated sexual assault of his ten-year-old half-sister, Loretta Stone. In 1986, Loretta lived with her father, Larry Stone, in Spearfish, South Dakota. On December 19, 1986, she went to Lower Brule, South Dakota, to spend the Christmas holidays with her mother, Shirley Marvin. 1 Loretta returned to Spearfish January 4, 1987. About two weeks later, Loretta told her step-mother, Nano Stone, that her step-brother, Terry Provost, had assaulted her at her mother’s house.

Dr. Wayne Anderson, M.D., examined Loretta on January 26, 1987. During the examination, Loretta described the assault and identified Provost as the assailant. Dr. Anderson gave Loretta a physical examination, and noted a reddening around her vaginal opening. Because Loretta was hysterical, however, he could not perform a complete examination. A culture taken that day indicated positive for a venereal disease, chlamydia trachomatis. Dr. Anderson completed a second examination on April 28. At that time, he observed a slight tag or tear on the right side of her hymenal ring, and observed that the vaginal opening was about one centimeter. He testified at trial that in his opinion, the opening was larger than average in prepu-bertal girls and, although not unusually large, suggested penetration.

In early March, Shirley Marvin told Provost of the allegations made against him, and his sister, Maria Thompson, told him that Loretta was infected with chlamydia. Provost went to the hospital in Eagle Butte, where he received treatment for an ear infection and was tested for sexually transmitted disease. Provost tested negative for chlamydia.

Before trial, Provost moved for appointment of an independent psychiatrist or psychologist to examine Loretta. The government joined in the motion and requested that Dr. Mary Curran, a clinical psychologist, be appointed to conduct the examination. The trial court granted the government’s request. Later, the trial court granted a motion brought by defendant requesting appointment of a nontestifying expert to assist defendant’s counsel in evaluating Dr. Curran’s report and testimony at trial.

Dr. Curran interviewed Loretta on May 5, 1987. Loretta described the assault to Dr. Curran and identified Terry Provost as the assailant. At trial, Dr. Curran testified as to the emotional and psychological characteristics often observed in sexually abused children, and her observation that Loretta exhibited many of these characteristics.

At trial, Loretta testified that on the day after Christmas, she awoke in a second-floor room of her mother’s house when she heard someone walking up the stairs. Provost entered the room, wearing only his underwear. He pulled up her nightgown, put his penis between her legs, and pushed *175 until it entered her “private parts.” After about five minutes, he put on his underwear without either of them saying anything. Loretta would not describe the defendant’s body part which touched her, but she drew a picture of male genitals which was exhibited to the jury. After the assault, Loretta took a shower and washed “white stuff” and a little blood off her leg and private parts. Then, wrapped in a towel and wearing only shoes and underwear, she went to a next door neighbor’s house, and asked to use the phone to call her mother at work. When her mother asked her what was wrong, she replied “nothing.”

The neighbor, Donna Nibbelink, testified that she was like a grandmother to Loretta. She further testified that, although Loretta visited her house several times during the holiday, she never came over wearing just a towel, underwear and shoes, and that she never saw her in an excited or anxious mood during that holiday. Nibbelink kept a diary of her daily activities during this period, which was consistent with her testimony.

Defendant offered testimony from Nib-belink, Shirley Marvin and Deanna Provost to the effect that during the week after Christmas 1986, Terry Provost and Loretta were never alone together in the Marvin house.

After a four-and-one-half-day jury trial, Provost was convicted of aggravated sexual assault and sentenced to thirteen years imprisonment. This appeal followed.

II.

A.

Provost first asserts as error that the court-appointed expert, Dr. Curran, was not independent because she was selected by the government and because she had a “long-standing relationship” with the government in the prosecution of sexual abuse cases. The government contends that Dr. Curran was an independent witness and not the government’s expert, and that Provost has failed to show that an additional independent psychological examination was necessary to his defense.

A trial court has broad discretion to grant application for appointment of an expert witness. United States v. Schultz, 431 F.2d 907, 910 (8th Cir.1970). Here, there is no question as to Dr. Curran’s qualification as an expert. Rather, the issue is whether Dr. Curran is an independent witness or whether her independence is compromised by her role as a prosecution witness in other cases. We find that the trial court did not abuse its discretion in appointing Dr. Curran to conduct an independent examination of the victim or in denying the defendant’s request for a second independent examination.

The fact that Dr. Curran has been called as a prosecution witness in a number of previous cases does not make her an employee of the government or necessarily compromise the independence of her examination of Loretta. Provost has made no showing that a second psychological examination would have been beneficial to the development of his defense. Provost had access to Dr. Curran’s report and an opportunity to converse with her before trial. Almost six weeks before trial, the court appointed Dr. Lynn Goehring to assist defense counsel in analyzing Dr. Curran’s report. Dr. Goehring was also present in the courtroom during Dr. Curran’s testimony to provide assistance to the defendant.

B.

Provost’s second objection focuses on a portion of Dr. Curran’s testimony which he characterizes as a comment on the credibility of the victim. In United States v. Azure, 801 F.2d 336

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Bluebook (online)
875 F.2d 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terrance-kenneth-provost-ca8-1989.