State v. Boivin

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 87-577
 
 
State of Vermont                             Supreme Court
 
       v.                                    On Appeal from
                                             District Court of Vermont,
Carl M. Boivin                               Unit No. 2, Chittenden Circuit
 
                                             September Term, 1989
 
 
Edward J. Cashman, J.
 
Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
  General, Montpelier, for plaintiff-appellee
 
Walter M. Morris, Jr., Defender General, William A. Nelson, Appellate
  Defender, and Ricardo Larks, Law Clerk (On the Brief), Montpelier, for
  defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned
 
 
     BARNEY, C.J. (Ret.)  The defendant contends that evidence relevant to
his defense was erroneously excluded, resulting in his conviction of
unlawful mischief for vandalizing a truck.  We reverse and remand for a new
trial.
     A witness for the State, nephew of the owner of the truck, testified
that at about three o'clock on a certain afternoon the defendant was seen
walking around and apparently touching the truck as it sat in the parking
lot of an apartment house in Winooski, Vermont.  Later that day, the owner
of the truck examined it and found scratches all over it, particularly on
the cab, and found that rocks had been thrown inside.  The damage was
estimated to be about $1,800.  A witness stated that sometime after 3:00
p.m. the defendant was seen entering a light blue car and driving away.
     The defendant lived in the apartment house and his quarters were no
more than thirty feet from the parking lot.  He offered testimony that he
walked through the lot at about the time he was said to have been seen
there, accompanied by witnesses who would state that he never touched the
truck.  He then proposed to prove, by his own testimony and that of others,
that he had gone to the apartment where he had remained all afternoon.
     This last evidence was held by the trial court to constitute an attempt
to prove an alibi within the terms of V.R.Cr.P. 12.1, and therefore was
excluded under V.R.Cr.P. 12.1(e) for failure to comply with the notice
requirements of V.R.Cr.P. 12.1(a).
     The immediate question, duly raised by the defendant, is whether such
evidence in fact constitutes "alibi" evidence.  In the law, "alibi"
evidence relates to defendant's claim that he was at a place so removed from
the scene of the crime that it rendered his participation improbable, if not
impossible.  State v. Ovitt, 126 Vt. 320, 327, 229 A.2d 237, 242 (1967).  In
view of the burden of proof imposed on the State in criminal cases, claims
of distance first raised at trial are so unpredictable and subject to such
manipulation that the law has compensated by imposing a burden of notice on
the defendant.
     This was not a case where special notice to the State was required,
however.  Defendant did not claim he was not at the scene of the crime when
a witness for the State said it was committed, at three o'clock.  If the
State should claim the crime was committed later in the afternoon, the
evidence undeniably placed the defendant no further than thirty feet from
the scene of the vandalism.  This situation closely parallels that in State
v. Ovitt, 126 Vt. at 327-28, 229 A.2d  at 242.  We echo the comment there
that the facts do not support the application of the alibi exclusion.  This
is particularly so in light of the fact that the witnesses involved had been
timely identified to the prosecution.
     Moreover, as part of its case, the prosecution presented testimony in
which a witness claimed to have seen the defendant leave the apartment at a
time when the vandalism could have happened, after three o'clock.
Defendant's attempt to refute this claimed departure was likewise excluded
by the court as part of his "alibi" evidence.  Since defendant's evidence
was tendered in order to refute testimony regarding a particular location
put in issue by the State, its exclusion was error, and a retrial is
required.
     That being so, and the likelihood that the other claimed errors will
not recur on retrial being high, we need not treat them here.
     The verdict and judgment of guilty are set aside and the cause is
remanded for a new trial.
 
 
                                   FOR THE COURT:
 
 
 
                                   _________________________________________
                                   Albert W. Barney, Chief Justice (Ret.)
                                   Specially Assigned
 
 
 
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NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 87-577
 
 
State of Vermont                             Supreme Court
 
       v.                                    On Appeal from
                                             District Court of Vermont,
Carl M. Boivin                               Unit No. 2, Chittenden Circuit
 
                                             September Term, 1989
 
 
Edward J. Cashman, J.
 
Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
  General, Montpelier, for plaintiff-appellee
 
Walter M. Morris, Jr., Defender General, William A. Nelson, Appellate
  Defender, and Ricardo Larks, Law Clerk (On the Brief), Montpelier, for
  defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned
 
 
     PECK, J., concurring in part and dissenting in part.  I agree with the
majority that the exclusion of defendant's attempt to refute the prosecution
witness testimony that defendant was seen to "leave the apartment at a time
when the vandalism could have happened" was error for the reasons stated by
the majority.
     I am in strong disagreement, however, with both the majority rationale
and conclusion drawn therefrom through which the majority holds defendant's
attempt to testify that he was in his nearby apartment all afternoon, at
least from approximately three o'clock on, did not constitute an attempt to
establish an alibi for that period of time.
     As far as it goes I agree with the majority that "'alibi' evidence
relates to a claim of [a] defendant that he was at a place so removed from
the scene of the crime that it rendered his participation improbable, if not
impossible."
     But in relying on State v. Ovitt, 126 Vt. 320, 327, 229 A.2d 237, 242
(1967), the majority apparently interpret the wording of Ovitt, "so far
distant from the scene of the offense that his participation in the crime
was impossible." id. (particularly the phrase "so far distant") to mean that
the defendant must be prepared to show that he was somewhere over the hills
and far away at the time of the offense.
      The words "so far distant" or "so removed from the scene" are
uncertain and ambiguous enough to be of no help at all when used without any
clarification of the key words "distant" or "so far removed"; the majority
offers no clarification.  Moreover, although Black's Law Dictionary (Revised
Fourth Edition, 1968) also recognizes distance and remoteness in defining
"alibi," it adds a third possibility to which the word is applicable: "or
under such circumstances that [defendant] could not have committed offense."
Id. at 95.
     If defendant would have testified, had he been allowed to do so, that
he was in his apartment "all afternoon," (from approximately 3:00 p.m.) and
had the jury believed him, it is manifest that he could not possibly have
committed the vandalism of which he was accused, at least during the all-
afternoon period referred to.  If this does not meet the test of "alibi," I
believe the majority has plucked a new and too limited a standard.  If his
testimony was allowed and believed, his participation in the crime during a
period of time when it could have been committed, was not only improbable,
it was completely impossible.  The proposed testimony was, therefore,
properly excluded because of defendant's failure to give the required
notice.  It is absurd also to suggest that defendant's proximity to the site
of the vandalism has any necessary significance.  If a suspect is thirty
feet or thirty miles away it is meaningless if, in fact, the distance makes
it impossible to commit the offense.  It is not difficult to postulate
examples.  Thus, if an assault is shown to have been committed on one side
of an impregnable wall at a given time and a suspect establishes he was on
the other side at the critical time, he has an alibi regardless of the fact
that the straight-line distance between victim and suspect is only a few
feet at the most.  I believe the suspect has an alibi and must notify the
prosecution should he be charged with the offense.
     Finally, the majority opinion is ambiguous and puzzling at one point.
After reciting that "the facts do not support . . . the alibi conclusion,"
the majority adds: "This is particularly so in the light of the fact that
the witnesses involved had been timely identified to the prosecution."
Witnesses to what?  Supporting the "alibi"?  Refutation of certain
prosecution's witnesses claiming to have seen defendant's departure from the
apartment at a significant time?  The majority does not complete the
statement or explain the evidence offered or to be offered by these
witnesses, rather the majority prefers to leave us to speculate as to the
reference.
     I would hold the alibi test was not met and was properly excluded.
 
 
 
                                        ________________________________
                                        Louis P. Peck, Associate Justice