State v. Shaw

			              ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-078

                             MARCH TERM, 1990


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont
                                  }          Unit No. 1, Rutland Circuit
                                  }
Dana Martin Shaw                  }
                                  }          DOCKET NO. 1733/34-11-84RCr


             In the above entitled cause the Clerk will enter:

     In State v. Shaw, 149 Vt. 275, 284, 542 A.2d 1106, 1111 (1987), we
reversed and remanded defendant's judgments of conviction for sexual assault
and felony trespass because the State failed to provide the defense with the
victim's statements made in her diary about the alleged offenses.  In
response to defendant's discovery request for the diary, the State had filed
a motion for a protective order urging the court to prevent disclosure so as
to protect the victim's privacy, but offering to produce the diary for an
in camera inspection by the court.  The court granted the State's motion,
but did not inspect the relevant diary entries.  Following trial in 1985,
defendant filed post-trial motions but did not raise any issue about the
ruling on the protective order.  We instructed the trial court on remand

     to grant defendant's motion to compel discovery of the relevant
     diary entries.  If the court concludes the diary entries contained
     information that probably would have changed the outcome of the
     case, the court must order a new trial upon motion of defense
     counsel.  If not, or if the nondisclosure was harmless beyond a
     reasonable doubt, the court may reinstate defendant's convictions.

We denied the State's motion to reargue in which it was disclosed to us
that the diary had been destroyed and no copy had been made.  Almost two
years before our decision in State v. Shaw, and about a month after
defendant filed his notice of appeal, complainant had discarded the diary
during a move to a new residence.

     Following the remand hearing at which the victim and the deputy state's
attorney in charge of the case testified, the trial court found that the
prosecutor read the applicable portions of the diary, determined that what
she read would not be helpful to defendant, and returned the diary to
complainant.  The witnesses' reconstruction of what was written in the
diary relevant to this prosecution were cryptic references by complainant
that defendant, after calling her, had come over to her apartment and raped
her and sometime later she told her boyfriend about it.  The court, after a
detailed opinion, reinstated defendant's convictions, and this appeal
followed.

     This case is governed by the test employed when evidence is lost,
namely, "'"a pragmatic balancing" of three factors: (1) the degree of negli-
gence or bad faith on the part of the government; (2) the importance of the
evidence lost; and (3) other evidence of guilt adduced at trial.'"  State v.
Smith, 145 Vt. 121, 126, 485 A.2d 124, 127-28 (1984) (quoting State v.
Bailey, 144 Vt. 86, 95, 475 A.2d 1045, 1050 (1984) (paraphrasing United
States v. Bryant, 439 F.2d 642, 653 (D.C. Cir. 1971)).

     The court determined that the negligence on the part of the State was
minimal, that the lost evidence had been reconstructed credibly, and that
there was a "plethora" of other evidence of guilt.  The court concluded that
the entries did "nothing to vitiate the credibility of the complaining
witness."  We conclude that the trial court did not abuse its discretion and
appropriately applied the balancing test.  See, e.g., State v. Seifert, 151
Vt. 66, 70, 557 A.2d 494, 497 (1989) (destroyed evidence must possess
exculpatory value apparent before the evidence was destroyed, and comparable
evidence must be unattainable by other reasonably available means); see also
State v. Lewis, 151 Vt. 38, 40-41, 556 A.2d 59, 61-62 (1988) (court employed
balancing test, in part, but did not evaluate the prejudice of lost evidence
to defendant because case was remanded for new hearing).

     Affirmed.


                                   BY THE COURT:



                                   _______________________________________
                                   Frederic W. Allen, Chief Justice


                                   _______________________________________
                                   Louis P. Peck, Associate Justice


                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice


                                   _______________________________________
[x]  PUBLISH                       John A. Dooley, Associate Justice

[ ]  DO NOT PUBLISH
                                   _______________________________________
                                   James L. Morse, Associate Justice