Where a defendant was charged with, among other things, sexual battery, the trial court was not required to strike jurors whose family members had experienced sexual abuse because there was no indication that the jurors could not remain impartial, and the defendant’s psychologist was properly precluded from testifying that the defendant did not fit the profile of a person who engaged in abhorrent sexual behavior because such testimony constituted an opinion on an ultimate issue in the case.
Christopher Francis Cipolla began sexually molesting his girlfriend’s daughter in 2005 when the child was 6 or 7 years old. The abuse continued until 2010 when the girl was in the sixth grade and asked him to stop. She did not report Cipolla’s conduct to the police until February 2015.
During voir dire, the trial court informed the prospective jurors of the offenses for which Cipolla was charged. None of the jurors responded that they would not be able to be impartial. Defense counsel then asked the jury panel whether any of their family members, friends or colleagues had been affected by unwanted sexual contact. Juror 135 stated that, about 50 years ago, her two sisters had experienced unwanted sexual contact from their foster parents and father, and she acknowledged that she could not be certain that hearing similar evidence would not cause her to relive her sisters’ experiences. Juror 154 responded that his sister’s daughter had been abused and that the matter was still pending in a court in North Carolina and acknowledged that hearing similar evidence could potentially cause him to relive those events. The trial court denied Cipolla’s motion to strike both jurors for cause.
At trial, the court precluded Cipolla from presenting the expert testimony of a psychologist specializing in cases involving abnormal sexual behavior who had examined Cipolla before trial and found that he did not show any paraphilic tendencies and did not fit the profile of individuals who engaged in abhorrent sexual behavior.
Cipolla was convicted of indecent liberties with a minor in a custodial relationship, forcible sodomy and aggravated sexual battery. This appeal followed.
An appellate court must give deference to a trial court’s jury selection determinations because a trial judge who personally observes a juror, including the juror’s tenor, tone, and general demeanor, is in a better position than an appellate court to determine whether a particular juror should be stricken.
In this case, we cannot say that the trial court abused its discretion in denying Cipolla’s motions to strike prospective Jurors 135 and 154 for cause. Jurors 135 and 154 were not victims of sexual abuse. Defense counsel did not ask the jurors whether the experiences of their family members would affect their ability to be fair and impartial in the case. Rather, counsel asked them only if hearing the trial testimony about the sexual abuse of the victim would cause them to relive the events described by their family members, and neither juror expressly said that it would do so. Nothing in the jurors’ responses indicated that they would be unable to hear the case impartially or that they would have a bias toward one side or the other.
The admissibility of evidence is also left to the discretion of the trial court and should only be overturned upon an abuse of discretion. Here the trial court did not abuse its discretion in excluding the testimony of Cipolla’s expert witness.
As an initial matter, evidence that Cipolla did not exhibit paraphilic tendencies was not relevant to show that he lacked the requisite state of mind to commit the charged offenses. In addition, the expert’s testimony was not admissible because it concerned the ultimate issue in this case—whether the defendant committed the charged offenses against the victim.
Specifically, the expert’s proffered testimony suggested that Cipolla must be innocent of the charges because he did not fit the profile of a person who engaged in abhorrent sexual behavior. Allowing such evidence would have invaded the province of the jury in determining the defendant’s guilt or innocence.
Cipolla v. Commonwealth, Record No. 1976-17-2, June 18, 2019. CAV (Bumgardner), from Chesterfield Cir. Ct. (Robbins). Norman A. Thomas for Appellant; Rachel L. Yates for Appellee. VLW 019-7-108. 8 pp. Unpublished.