State v. Lander

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 88-630

                              MAY TERM, 1990


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Franklin Circuit
                                  }
Shane T. Lander                   }
                                  }          DOCKET NO. 879-6-88Fcr


             In the above entitled cause the Clerk will enter:


     When a witness has no present recollection of a prior event, a
previously recorded recollection of the event is admissible under V.R.E.
803(5) despite the proscription against the use of hearsay, V.R.E. 802,
provided that the proponent lays the necessary foundation.  See State v.
Paquette, 146 Vt. 1, 3, 497 A.2d 358, 360 (1985).  Defendant raised a timely
objection to the use of the witness's statement based on the inadequacy of
the foundation.  A review of the record indicates that the witness did not
adopt his prior statement as his own or aver that the statement accurately
reflected his knowledge at the time of its making.  Cf. id. at 4, 497 A.2d 
at 361.  Therefore, the statement lacked a foundation sufficient to justify
its admission into evidence.  See People v. Kubasiak, 98 Mich. App. 529,
536-37, 296 N.W. 298, 302 (1980) (police report of assault victim's
statement inadmissible where, although victim testified that he had no
present recollection of events, the record did not indicate that he had
adopted the report as true when the matter was fresh in his memory).

     A prior written statement or an object may be used to refresh a
witness's memory.  V.R.E. 612.  If the attempted refreshment is successful,
the witness may proceed to testify from present memory.  The rule, however,
does not permit the introduction of the stimulus into evidence.  See id.,
Reporter's Notes.  Where, as here, the witness's recollection remains
exhausted, the prior written statement could be admitted only under an
exception to the hearsay rule, such as V.R.E. 803(5).  This exception
provides that once a recorded recollection is admitted, the memorandum or
record may be read into evidence or, if offered by an adverse party,
received as an exhibit.  It is the recorded statement itself and not the
witness's recollection of the content of a prior recorded statement that
becomes evidence.  The latter constitutes hearsay.  Prior statements that
are not admitted into evidence as contemplated by V.R.E. 803(5) may not
provide a basis upon which to support a defendant's conviction.  See
Paquette, 146 Vt. at 5, 497 A.2d  at 361.


     Reversed and remanded for a new trial.



                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice