State v. Percy

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. 88-438


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 1, Windsor Circuit

Robert Lyle Percy                            April Term, 1990


George F. Ellison, J.

Jeffrey L. Amestoy, Attorney General, and David E. Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
 Defender, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     PECK, J.  Defendant appeals his conviction, after a retrial by jury, of
sexual assault in violation of 13 V.S.A. { 3252.  We affirm.
     Defendant raises five claims on appeal: (1) that the trial court's
instruction that the jury had a "duty to reconcile conflicting testimonies"
violated defendant's right to due process of law; (2) that the court erred
in refusing to suppress a photograph of defendant obtained through a
nontestimonial identification order; (3) that the court erred in excluding
defendant's expert evidence on the reliability of eyewitness
identification; (4) that he was denied a fair trial by the trial court's
failure to excuse a potential juror for cause; (5) that the court's
imposition of a greater sentence following retrial violated his right to due
process of law.
     On December 7, 1980, the victim in this case was abducted and raped.
Two weeks later, defendant was charged with sexual assault and kidnapping.
A jury trial began October 29, 1981.  In that trial, defendant claimed he
suffered from post-traumatic stress disorder (PTSD) resulting from his
military service in Vietnam, and that during the assault, he had experienced
a PTSD-induced flashback that caused his actions on the evening of the
crime.  The jury returned verdicts of not guilty on the charge of
kidnapping and guilty on the charge of sexual assault.
     Approximately four years later, in State v. Percy, 146 Vt. 475, 507 A.2d 955 (1986), this Court reversed the conviction and remanded for a new
trial.  The Court held that the cumulative effect of two errors had deprived
the defendant of a fair trial.  The first error was the admission into
evidence of a State expert witness's testimony that defendant's claim of
consent and amnesia was characteristic of rapists.  The second error was the
prosecutor's closing remark suggesting that defendant would go free if he
were found not guilty by reason of insanity.
     Defendant's second trial for this offense began May 9, 1988.  Unlike
the first trial, the defense made no claim of insanity, but argued instead
that the victim mistakenly identified defendant as the rapist.  On May 13,
1988, the jury returned a guilty verdict, and this appeal followed.
     At trial, the victim testified that on the night of the assault, she
left work and was driving home on Route 12 between Elmore and Worcester when
a person on the side of the road fell over in front of her car.  She braked,
the pedestrian opened the door, and, with his right hand in his pocket,
said, "I have a gun, this is a robbery, do as you're told and nothing will
happen."   He ordered her to drive to a dead-end road where he raped her.
     During the drive, the man extinguished a cigarette he had been smoking
on the passenger side of the car, burning a hole in the carpet.  After the
assault, the man handed the victim a lit cigarette.  She testified that she
handed it back to him, but did not remember whether she put the cigarette to
her lips, or what the rapist did with the second cigarette after he smoked
it.  However, she was certain he did not open the car door or the window to
throw it out.  The cigarette was a Camel nonfilter.  A Camel nonfilter
cigarette butt retrieved from the driver's side of the car showed secretions
of a person with blood type B.  Defendant's blood type was O; the victim's
was type B.
     The victim testified that the assault occurred over approximately an
hour, and that during that time, she was able to see her attacker's face
clearly several times, illuminated by lights in the car's interior or
ambient light from other automobiles.  She described his face as "inches"
away from hers, and stated that "I was face to face with him throughout most
of it."
     After the rape, the assailant ordered the victim to drive back to Route
12 where he left the car. The victim, who stressed during the trial that
her assailant's face was "engrained" in her memory, worked with a police
artist to create a sketch of her attacker.
     When the sketch was circulated, Mr. Percy was identified as bearing a
resemblance to the drawing.  Thereupon, the main investigating officer, Mr.
Williamson, obtained a nontestimonial identification order and on the same
day drove to the garage where Mr. Percy worked, read him the order, and took
him to the station to be photographed.  The photograph obtained was used in
a photo array from which the victim positively identified defendant.  The
victim stated that her recollection came "[f]rom spending an hour in my car
with him."
                                    I.
     Defendant claimed that the trial court's jury instructions were flawed
because the court told the jury it had a duty to reconcile conflicting
testimony.  He argued that the defense in this case hinged on the inability
to reconcile the victim's identification of defendant with the "hard
scientific evidence" that the cigarette butt found in the victim's car
contained secretions inconsistent with defendant's blood type.  According to
defendant, when the jury was instructed that it had a duty to reconcile
conflicting evidence, it was in effect instructed to accept the
prosecution's theory, which reconciled the conflicting evidence.
     "[A] charge 'should be taken as a whole, and although it may contain
some expressions that, taken alone, would be error, yet if as a whole it
breathes the true spirit and doctrine of the law, and there is no fair
ground to say that the jury has been misled by it, it ought to stand.'"
State v. Bishop, 128 Vt. 221, 230, 260 A.2d 393, 399 (1969)(quoting Fassett
v. Town of Roxbury, 55 Vt. 552, 556 (1882)); see State v. Day, 150 Vt. 119,
123, 549 A.2d 1061, 1064 (1988).  In light of the entire instruction in the
case before us, we find no error in the charge. See State v. Snide, 151 Vt.
343, 344-345, 560 A.2d 380, 381 (1989); State v. Chambers, 144 Vt. 377,
382, 477 A.2d 974, 978 (1984). The court repeatedly told the jury that the
credibility of each witness was a matter solely for its consideration and
emphasized that identification witnesses should be evaluated with regard to
truthfulness and opportunity and capacity to observe.  Furthermore, the
contested instruction limited the duty to reconcile to "where there are two
or more witnesses to a given situation." (FN1) Because the victim was the only
witness testifying about the assault, the objectionable language simply did
not apply to any testimony. (FN2) Thus, "there is no fair ground to say that
the jury has been misled."  See Bishop, 128 Vt. at 230, 260 A.2d  at 399.
     Although we find no error in the charge, we reiterate the admonition
made recently in Snide that "[i]nstructions to presume that witnesses are
truthtellers pass dangerously close to unconstitutional shifts in the
State's burden of proof and the presumption of innocence, and threaten to
diminish the jury's role as the arbiter of credibility."  Snide, 151 Vt. at
345, 560 A.2d  at 381.  In the present case the court did not instruct the
jurors directly that "all witnesses are presumed to have testified
truthfully," as the court did in Snide. (FN3) Nonetheless, "in providing that
the jury should reconcile, if possible, conflicting testimony, the
instruction subtly perpetuate[d] the presumption specifically disapproved of
by this court in [Snide], namely that 'a witness is presumed to speak the
truth.'"  Oksoktaruk v. State, 611 P.2d 521, 526 (Alaska 1980).
                                    II.
     Defendant next asserts that the court erred in refusing to suppress a
photograph of him obtained through a nontestimonial identification order
and the evidence derived from it.  The victim positively identified
defendant from the photograph.  Defendant claims that the manner in which
the order was executed violated V.R.Cr.P. 41.1.  Specifically, he argues
that because execution occurred immediately after the order was served on
him, he was given no opportunity to contest the time or place for
appearance.  We disagree.
     Section (h) of Rule 41.1 permits a person named in a nontestimonial
identification order to request a modification of the time and place for
appearance.   Section (e) states that the request should be granted
"whenever it appears reasonable under the circumstances to do so."  Rule
41.1(h)(6) states that the nontestimonial order should include a clause
explaining that the order may be modified with respect to time and place
upon request to the judicial officer.
     The order included a clause stating, "If you file a written request
with me within three days after receipt of this order, I will make any
reasonable modification of the time and place of appearance . . . ."  It was
read to defendant in its entirety before he was taken to the police station
to have his photograph taken.  Thus, the requirements of the rule were
complied with.  Defendant did not indicate that he wished to request a
modification of time or place.  Rather, the corporal in charge of executing
the order testified that defendant was "very cooperative."   At that point,
defendant waived his right to modify.  Nonetheless, defendant argues that
because the order mandated action the very day it was issued and because
defendant was read the order and immediately taken to the police station for
photographing, he had no realistic opportunity to request a modification of
the time or place or to contact an attorney.
     There is no indication that defendant wished to postpone the execution
of the order.  In a similar case, this court upheld the validity of an order
served at 4:20 p.m. directing a suspect to appear at the police station at
5:30 p.m. on the same date.  See generally State v. Howe, 136 Vt. 53, 386 A.2d 1125 (1978).  Moreover, in Howe, the suspect's attorney was not served
with a copy of the order.  Nonetheless, the court upheld the validity of the
order because a defendant has no right to counsel during the pre-charge
nontestimonial identification procedure. Id. at 63-64, 386 A.2d  at 1131; see
State v. Kennison, 149 Vt. 643, 646, 546 A.2d 190, 192 (1987), cert. denied,
486 U.S. 1011 (1988)("[The defendant] is incorrect in claiming that the
right to counsel is constitutionally mandated at a nontestimonial
identification procedure such as the one here.")
                                   III.
     Defendant maintains that the trial court erred in excluding the
testimony of defendant's expert witness.  The expert proposed to testify
that stress diminishes a witness's ability to make an accurate
identification; that a witness may unconsciously try to complete an
incomplete recollection; and that witnesses' beliefs about their own
observations may be unconsciously influenced by outside factors, such as
nonverbal cues from others.
     Under V.R.E. 702, expert testimony may be admitted if the expert is
qualified and if the testimony will be helpful to the trier of fact.  "[T]he
admission of evidence is highly discretionary.  It is a steadfast rule of
this Court that '[a]ny discretionary ruling is not subject to revision here
unless it clearly and affirmatively appears that such discretion has been
abused or withheld.' Moreover, the burden of showing prejudicial error
rests clearly on the defendant."  State v. Picknell, 142 Vt. 215, 230, 454 A.2d 711, 718 (1982)(quoting State v. Polidor, 130 Vt. 34, 39, 285 A.2d 770,
773 (1971)).
     This case may be borderline because the "eyewitness identification of
the defendant [was] a key element of the prosecution's case but [was] not
substantially corroborated by evidence giving it independent reliability."
People v. McDonald, 37 Cal. 3d 351, 377, 690 P.2d 709, 727, 208 Cal. Rptr. 236, 254 (1984).  In such cases, it may be error not to allow the defendant
to introduce "qualified expert testimony on specific psychological factors
shown by the record that could have affected the accuracy of the
identification but are not likely to be fully known to or understood by the
jury."  Id. at 377, 690 P.2d  at 727, 208 Cal. Rptr.  at 254.  Nonetheless, we
do not find that there was a clear abuse of discretion in the instant case.
     The judge's conclusion that the jury would be adequately able to assess
the reliability of the victim's identification of defendant was not
unreasonable.  There is ample authority holding that juries may be made to
understand psychological factors which affect the accuracy of an
identification when these factors are brought to light at cross-examination
and during closing argument.  United States v. Christophe, 833 F.2d 1296,
1300 (9th Cir. 1987); United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.
1973); State v. Kemp, 199 Conn. 473, 478-79, 507 A.2d 1387, 1390 (1986);
State v. Lawhorn, 762 S.W.2d 820, 823 (Mo. 1988); see State v. Onorato, 142
Vt. 99, 105, 453 A.2d 393, 396 (1988).  During closing argument, the defense
stressed the likelihood that the victim was completing an incomplete
recollection and the possibility that her observations were unconsciously
influenced by outside factors.  During cross-examination, the defense
undermined the victim's identification of her assailant by eliciting
assurances that she remembered each of the photographs she observed during
the photographic layout seven years earlier.  The effect of stress and poor
lighting on her ability to identify her assailant were also amply probed.
     Furthermore, there was some evidence which corroborated the victim's
identification of defendant.  Her description of her assailant and his
clothes prior to her identification of him at the photographic layout was
substantially consistent with him and his clothes.
     Finally, the victim was able to observe her assailant from close
proximity over a period of forty-five minutes.  Since the crime began as a
robbery, the victim was able to observe her assailant before the situation
became truly traumatic. (FN4) In Onorato, we held that a jury could assess the
reliability of a  boy's identification of the defendant without the
assistance of an expert witness where he had observed his assailant from
close proximity for a substantial period of time before the stressful
situation arose.  142 Vt. at 104-05, 453 A.2d  at 395-96. (FN5)
     Defendant argues that the court's exclusion of the expert testimony
violated his state and federal constitutional rights to present evidence in
his own defense.  "'In the exercise of [these] right[s], the accused as
required of the State, must comply with the established rules of procedure
and evidence designed to assure both fairness and reliability in the
ascertainment of guilt or innocence.'" State v. Kemp, 199 Conn. 473, 479,
507 A.2d 1387, 1390 (1986)(quoting Chambers v. Mississippi, 410 U.S. 284,
302 (1973)).  We are satisfied that the trial court did not abuse its
discretion in excluding the proffered expert testimony on the basis that it
would not have aided the jury in its deliberations.  "The court's exercise
of discretion excluding the testimony did not under the circumstances
violate the defendant's constitutional rights."  See id. at 479, 507 A.2d 
at 1389.
                                    IV.
     Next, defendant maintains that the court committed reversible error
when it failed to dismiss a potential juror for cause.  Defendant used a
peremptory challenge to remove the juror; however, he stated he would have
challenged other jurors if he had not been obliged to use one of his
peremptory challenges to remove a juror whose daughter had been raped and
who expressed an opinion that the police are more prone to tell the truth
than other persons.
     Before this Court may consider whether the denial of a challenge
     for cause was erroneous, we must first determine whether a party
     has preserved the denial for our review.  In order to preserve a
     denial of a challenge for cause for review, [that party] must
     satisfy a two-part test demonstrating that he has been prejudiced
     by the ruling.

Jones v. Shea, 148 Vt. 307, 308, 532 A.2d 571, 572 (1987).  To satisfy the
first part of the test, the appellant must show that "the challenge for
cause [was] denied and all peremptory challenges [were] subsequently
exhausted . . . ."  Id. at 309, 532 A.2d  at 572.  "The second part of the
test . . . requires that the record reflect that, had the party had an
additional peremptory challenge available, the party would have used it to
strike another juror."  Id.
     In the instant case, defendant satisfied both parts of the test.  A
challenge for cause was denied, and the defendant subsequently exhausted all
peremptory challenges.  He also requested an additional peremptory challenge
and indicated that there were additional jurors whom he would have
challenged if he had been allowed to do so.  Defendant has, therefore,
preserved the error for our review and we will consider whether the denial
for cause was erroneous.
     When . . . statutory grounds of per se disqualification for
     potential bias do not exist, the question becomes whether the
     juror entertains a fixed bias, or whether he can decide the case
     solely on the evidence.  Once a fixed bias has been demonstrated,
     disqualification is required as a matter of law, but whether the
     juror entertains an opinion that is truly a fixed bias is a
     question for the sound discretion of the trial judge who has
     observed the demeanor of the juror on voir dire.  "The finding of
     the trial court upon the strength of the juryman's opinions and
     his partiality or impartiality ought not to be set aside by a
     reviewing court unless the error is manifest." The juror's claims
     of impartiality, of course, are not dispositive on the question of
     fixed bias.  Although they deserve careful consideration "it
     remains open to the defendant to demonstrate `the actual existence
     of such an opinion in the mind of the juror as will raise the
     presumption of partiality.'"

States v. Hohman, 138 Vt. 502, 510-11, 420 A.2d 852, 857-58 (1980)(citations
omitted).  Defendant has failed to demonstrate the "actual existence of such
an opinion in the mind of the juror as will raise the presumption of
partiality."  See id. at 511, 420 A.2d  at 858.
     Defendant argues that, because the daughter of the potential juror had
been raped six years prior to the present trial, he should have been
dismissed for cause under a theory of "implied bias."  Defendant further
argues that the judge refused to dismiss the juror for cause solely because
the potential juror stated that he would not be influenced by the rape of
his daughter.  Finally, defendant argues that the potential juror should
have been excused for cause because he expressed confidence in the veracity
of the police.
     In Vermont, implied bias has been found only in cases where jurors had
some relationship to a participant.  See Jones, 148 Vt. at 310, 532 A.2d  at
573 (jurors were current patients of the doctor defendant); State v. Kelly,
131 Vt. 358, 360-61, 306 A.2d 89, 90 (1973)(juror was the aunt of a guard in
the prison where defendant allegedly assaulted another guard).  In the
absence of a statutory bar or implied bias, jurors should be dismissed if a
fixed bias is shown.  In the present case, we agree with observations made
in a prior case that the "juror appears to harbor a confidence in [his]
impartiality based on careful consideration.  While . . . this is not
dispositive, in the absence of an indication of bias in the record we will
not upset the determination of the trial judge, based, as it was, upon the
actual observation of the juror."  Hohman, 138 Vt. at 512, 420 A.2d  at 858.
In numerous sexual crime cases, courts have affirmed where trial courts
refused to dismiss for cause jurors having family members who were victims
of sexual crimes.  See, e.g., Stringfellow v. State, 485 So. 2d 1238, 1241-
1242 (Ala. Crim. App. 1986)(the court was not in error for failing to
dismiss for cause a juror whose daughter had been previously treated for
sexual abuse because she "stated that she would be able to render a fair and
impartial verdict, based solely upon the evidence presented at trial");
Jamison v. State, 164 Ga. App. 63, 63, 295 S.E.2d 203, 204-05 (1982)(trial
court not in error for failing to dismiss for cause a juror whose daughter
had been raped five years earlier because "the court had an ample basis upon
which to believe the juror would perform her duty justly"); State v. Hedger,
115 Idaho 598, 600-01, 768 P.2d 1331, 1333-34 (1989)(no abuse of discretion
where trial court refused to dismiss a juror for cause although her first
husband was convicted of rape fifteen years earlier and her present husband
had pleaded guilty to sexual abuse three years earlier); State v. Dickinson,
370 So. 2d 557, 563 (La. 1979)(court did not err in denying challenge for
cause of a prospective juror whose cousin had been a rape victim some years
prior to trial);  Commonwealth v. Henderson, 275 Pa. Super. 350, 357, 418 A.2d 757, 761 (1980)(no abuse of discretion to deny a challenge for cause of
a juror whose granddaughter had been raped).
     Defendant contends that the court applied an erroneous standard in
failing to dismiss the juror. The court stated, "I won't excuse him for
cause. I think he's stated it fairly clearly, and taken in the totality of
everything we've heard.  All right."  Although the court's explanation
lacks the clarity we would desire, it demonstrates that the court
considered the juror's statements in the entire context of what had been
expressed.  Thus, the court considered the juror's answers to all the
questions posed to him as well as the manner in which these answers were
given.  The court may also have considered that the present case involved
the identification of a previously unknown assailant whereas the rape of the
juror's daughter involved a person well known to the victim.  We find no
error in the court's refusal to dismiss the juror because of his daughter's
rape.
     Defendant also argues that the potential juror should have been
dismissed for cause due to his opinion of police veracity.  When the juror
was asked whether he believed police officers are more prone to tell the
truth than other people he answered, "Yes, definitely."  When questioned
further whether he would be inclined from the beginning to believe a police
officer he stated that he "would listen, right."  Thereupon, the defendant
began an additional question but stopped and stated, "okay, I'll leave it at
that."  He did not raise the juror's confidence in the police as a ground
for dismissal but rather removed him by peremptory challenge, when the
judge refused to remove him due to his daughter's rape.
     After the jury was selected, the judge called the attorneys to the
bench and mentioned to the defense that the juror's "statement that he
believed police officers" would have been an appropriate basis for a
peremptory challenge.  At that point, the defense argued that the juror's
confidence in the police was a ground for dismissal for cause.  The judge
disagreed.
     "The purpose of [a] voir dire examination is to raise alleged bias
'from the realm of speculation to the realm of fact.'"  Lopez v. State, 544 P.2d 855, 860 (Wyo. 1976)(quoting Dennis v. United States, 339 U.S. 162, 168
(1950)).  "It is the obligation of the defendant to examine jurors on voir
dire and discover by proper investigation facts affecting their
qualifications, and then to seasonably raise that objection with respect to
any member of the panel."  Lopez, 544 P.2d  at 861; see also Roberson v.
State, 456 P.2d 595, 600 (Okl. Crim. App. 1968).  Well before using a
peremptory challenge to dismiss the potential juror, the defendant was made
aware of the juror's view of police officers' credibility.  At that point,
however, he appeared satisfied.  If he was not satisfied, he was free to
inquire further.  He did not.  The juror never stated that he would
automatically assume that a police officer is speaking truthfully.  In the
context of questioning about the effect his daughter's rape would have on
his ability to be impartial, he stressed several times that he would judge
the case on the evidence presented, that he would obey the judge's
instructions and that he would abide by the reasonable doubt standard.
Thus, he demonstrated a resolve to maintain an open mind and to judge the
case on the evidence presented.  Under the circumstances, the judge did not
abuse his discretion in failing to dismiss the juror for cause. (FN6)
                                    V.
     Finally, defendant argues that imposition of a longer sentence after
his second trial violated his federal right to due process of law. (FN7) In
North Carolina v. Pearce, 395 U.S. 711, 723 (1969), the United States
Supreme Court held that there is no constitutional bar to "a more severe
sentence upon retrial."  However, in Pearce, the Supreme Court stated that
when a defendant receives a higher sentence after a new trial the reasons
for the enhanced punishment "must affirmatively appear" in order to assure
the absence of "retaliatory motivation on the part of the sentencing judge."
Id. at 725-26.  Later cases have interpreted Pearce as holding that when a
defendant receives a higher sentence upon retrial a rebuttable presumption
of vindictiveness arises.  See e.g. Texas v. McCullough, 475 U.S. 134, 138-
39 (1986).  Defendant argues that the Pearce presumption attaches in this
case.  We disagree.
     In subsequent cases, the United States Supreme Court has substantially
narrowed its holding in Pearce.  See, e.g., Alabama v. Smith, 109 S. Ct. 2201, 2205-06 (1989)(the Pearce presumption does not apply where a judge
imposes a harsher sentence at the conclusion of a trial than the sentence he
imposed after a guilty plea which was subsequently vacated because "in the
course of proof at trial the judge may gather a fuller appreciation of the
nature and extent of the crimes charged"); Chaffin v. Stynchcombe, 412 U.S. 17, 25-28 (1973)(the Pearce presumption does not apply where a different
jury imposes a harsher sentence than the sentence imposed by a jury at a
previous trial); Colten v. Kentucky, 407 U.S. 104, 116 (1972) (the Pearce
presumption does not apply where a court trying a case de novo imposes a
harsher sentence than that imposed by an inferior court in a two-tier
system).  Recently, where a judge imposed a higher sentence than that
imposed by a jury at a previous trial, the United States Supreme Court held
that where "different sentencers assessed the varying sentences" there is no
Pearce presumption of vindictiveness.  Texas v. McCullough, 475 U.S. 134,
140 (1986).  In the instant case, Judge Cook sentenced defendant at the
first trial, whereas Judge Ellison sentenced defendant at the second trial.
Because "different sentencers assessed the varying sentences," the Pearce
presumption does not apply.  See Gauntlett v. Kelley, 849 F.2d 213, 217 (6th
Cir. 1988); Commonwealth v. Mikesell, 371 Pa. Super. 209, 225-26, 537 A.2d 1372, 1380-81, appeal denied, 520 Pa. 587, 551 A.2d 214 (1988); State v.
Hilton, 291 S.C. 276, 279, 353 S.E.2d 282, 284, cert. denied, 484 U.S. 832
(1987).
     "[W]here the [Pearce] presumption does not apply, the defendant must
affirmatively prove actual vindictiveness."  Wasman v. United States, 468 U.S. 559, 569 (1984).  Defendant did not allege actual vindictiveness and
"nothing in the record suggests that [the second judge] was motivated by
vindictiveness."  Mikesell, at 226, 537 A.2d  at 1381.  Therefore, defend-
ant's federal due process rights were not violated by the imposition of a
harsher sentence after his second trial.
     Affirmed.
                                        FOR THE COURT:




                                        Associate Justice






FN1.      The relevant instruction stated:
     The law recognizes that where there are two or more witnesses to a
     given situation, they may not all remember the same facts in the
     same way.  They may not all observe and remember exactly the same
     facts because of differences in faculties or observation, and also
     because of the weakness of human nature in remembering events,
     facts, or conversations.
          Witnesses may be absolutely honest and yet disagree in regard
     to details. And it is for you to say after considering all the
     evidence what weight you will give to the testimony of each.  It
     is your duty to reconcile conflicting testimonies if you can.  If
     you cannot so reconcile the testimony, then you will have to
     determine which of the witnesses is entitled to the greater
     credit.  You can believe all that a witness says, or you can
     believe part of it and disbelieve part of it, or you can
     disbelieve all of it.

FN2.       The defense attempted to show that there was physical evidence,
rather than another witness's testimony, inconsistent with the victim's
identification of the defendant.

FN3.      In Snide, the instructions stated, "It is your duty to reconcile
conflicting testimonies, if you can, upon the legal theory all witnesses are
presumed to have testified truthfully."  151 Vt. at 344, 560 A.2d  at 381.

FN4.      The fact that before the rape the victim became worried about her
new car and asked the assailant to put out his cigarette in the ashtray is
evidence that at the time, although perhaps frightened, the victim was not
so terrorized that she was unable to observe and analyze what was occurring.

FN5.      Defendant argues that the holding in pre-rule Onorato is
inconsistent with the helpfulness standard of Rule 702.  However, the
Reporter's Notes state clearly that "[a]s to the necessity of expert
testimony, the rule is permissive only--such testimony may be heard when it
will assist the trier."

FN6.      The better practice would have been for the court to satisfy
itself specifically that the potential juror would not assign undue weight
to the testimony of a police officer.  However, the record discloses a
general attitude by the juror to set aside his prejudices and to judge the
case impartially; thus, the court did not abuse its discretion in refusing
to dismiss the juror for cause.

FN7.     We do not address defendant's claim--briefed for the first time in
defendant's reply brief--that the harsher sentence on retrial violated his
due process rights under the Vermont Constitution.  We have stated on
several occasions that "[i]t is neither the purpose nor within the proper
scope of a reply brief under V.R.A.P. 28(c) to raise new issues not briefed
in either appellant's original brief or in appellee's brief."  Condosta v.
Condosta, 139 Vt. 545, 547, 431 A.2d 494, 496 (1981).