Wednesday, June 5, 2002
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Testimony by Character Witness in Religious Garb Did Not Violate Fair Trial Rights, Appeals Court Rules
By a MetNews Staff Writer
Testimony by a nun dressed in her habit, called by the prosecutor to vouch for an alleged sexual assault victim’s character, did not violate the defendant’s right to a fair trial, the Sixth District Court of Appeal ruled yesterday.
The court rejected the argument that Giam Thai Vu, convicted of seven felonies in connection with a series of alleged attacks on his former fiancee, was prejudiced as a result of the testimony, even though it was stricken after the nun acknowledged she knew nothing about the complaining witness’ reputation for honesty.
The defense argued that the prosecutor committed misconduct by calling the nun, citing the Evidence Code Sec. 789 prohibition against using a witness’ religious beliefs or lack of such beliefs to attack or support credibility.
But Justice Conrad Rushing said the prosecutor merely made a mistake by calling a witness who could not aid her case. Reversal was not required, Rushing said, because the prosecutor’s decision to call a witness who could not bolster the victim’s credibility helped, rather than hurt, the defense.
Vu won a partial victory, though, as the court sent the case back for retrial on one of the seven counts of which he was convicted, and/or for resentencing, based on instructional error.
Vu had been engaged to Jane Doe, as the court identified her, in 1996. She ended the engagement because she came to believe he had a wife and children living in Vietnam.
Doe testified that Vu sexually assaulted her on three separate occasions between June and August 1999, and threatened her on a fourth occasion before she overcame her fear and called police. The parties presented multiple witnesses who gave conflicting testimony as to whether Doe had a reputation for truthfulness.
Jurors convicted Vu of two counts of penetration with a foreign object, and of sexual battery, rape and making a terrorist threat.. They acquitted him of forcible oral copulation and burglary.
He was sentenced to 11 years in prison—two years for sexual battery, three years for rape, and three years on each count of penetration with a foreign object. A concurrent term was imposed on the terrorist threat charge.
Besides the prosecutorial misconduct argument, the defense claimed that Judge Alden E. Danner erred in not permitting Doe to be impeached by evidence that before their engagement, she told Vu she was pregnant. That evidence was admissible, the defense argued, because Doe put her sexual character in issue by repeatedly testifying as to her involvement in religious activities.
But Rushing said there was little relationship between that evidence and the alleged statement about pregnancy. The justice noted that the religious activities to which she testified were disconnected in time from the alleged statement.
Besides, he said, “that a person is religious does not mean that the person is sexually innocent or abstains from sex.” It would be “illogical,” he said, “to believe that Doe’s credibility would be undermined because she claimed to be both pregnant and religious.”
Rushing agreed with the defense, however, that jurors should have been told that they could find Vu guilty of sexual battery as a lesser included offense of unlawful penetration with a foreign object in connection with the first incident.
Doe testified that Vu came to her apartment on that occasion, entered without her approval, then pushed her against a closet, held her against her will, put his hands under her clothes, and touched her offensively.
The error requires that Vu be retried on that charge, or that the sentence on that count be set aside, the justice concluded.
The case is People v. Vu, H022334.
Copyright 2002, Metropolitan News Company