State v. Blair

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. 88-493


State of Vermont                             Supreme Court

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

Gary L. Blair                                April Term, 1990


George F. Ellison, J.

M. Patricia Zimmerman, Windsor County Deputy State's Attorney, White River
  Junction, for plaintiff-appellee

Robert W. Katims of Martin & Paolini, Barre, for defendant-appellant


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


     DOOLEY, J.   Defendant, Gary L. Blair, was convicted by a jury of
sexual assault pursuant to 13 V.S.A. { 3252(1)(A).  Defendant appeals,
claiming two grounds for reversal:  (1) that the trial court erred by
failing to inquire further into the possibility of jury misconduct; and (2)
that the court erred in excluding opinion testimony to demonstrate the
victim's character for untruthfulness.  Since we reverse defendant's
conviction based on the trial court's exclusion of the opinion testimony, we
do not reach the other issue raised by defendant.
     The trial came down to a credibility contest between two prison
inmates.  The victim testified that he was sexually assaulted by defendant,
his cell mate.  He did not report the incident for several months.  The
incident occurred after lights out, late in the evening of February 1st and
continuing into the morning of February 2, 1987.  According to the victim,
defendant threatened him with violence in order to induce him to engage in
oral sex and, in fact, punched him and slammed him off cell walls leaving
him bleeding and bruised.  The only other witness for the State was the
supervisor of security and operations at the Woodstock Correctional Center
(WCC), who described the physical layout and operations at WCC and the
victim's report of defendant's sexual assault upon him.
     Defendant testified in his own behalf and denied that he had sexually
assaulted the victim at any time.  He also testified that the activity
described by the victim would have been heard by other inmates and the
guards.  Another inmate, who had been the victim's cell mate in March of
1987, testified for the defense.  He stated that activity in one cell could
be overheard in surrounding cells and that the victim had never mentioned
the incident to him.
     The closing arguments reflect the credibility battle.  The defense
emphasized discrepancies between the victim's testimony in his deposition
and at trial and that it was impossible for the events described by the
victim to have occurred without being heard or seen by a guard.  The defense
also emphasized that the bleeding and bruises described by the victim should
have been observed by a guard, if they were actually present, and that the
victim delayed reporting the incident until he had a motive to obtain a
transfer to another facility.  The State's argument was that both the victim
and his recitation of events was credible.  The jury accepted the State's
position.
     The issue before this Court involves a State motion in limine to
exclude the use of reputation and opinion evidence to show that the victim
had an untruthful character "because such opinion and reputation evidence is
neither trustworthy nor reliable."  At the time of the motion, defendant's
counsel had taken the deposition of a number of inmates at WCC, and the
State's motion referenced deposition statements as the evidence it wished to
exclude.  After determining that there was not a sufficient period of time
to develop reputation, because the WCC is a transient community, the court
granted the motion prior to trial.  Although defendant argued that opinion
evidence is judged by different standards than reputation evidence, the
State's argument clearly confused the two types of evidence.  In granting
the motion in limine, the court stated that there was insufficient time for
the victim to develop a reputation in light of the nature of the correc-
tional center "community."  The court never mentioned that the motion also
covered opinion evidence.
     The evidence covered by the motion never came up at trial, and defend-
ant used the testimony of only one of the inmates he had deposed.  That
testimony did not relate to the victim's character although the witness
denied a statement attributed to him by the victim.
     Defendant raised the evidence issue again in a motion for a new trial.
Defendant's counsel more clearly focused on the difference between
reputation and opinion evidence and the lack of a "community" requirement
for the latter.  The State again seemed to argue that there was no
difference in the type of evidence used and that the court must find a
"community" for both.  The court's ruling again related solely to reputation
evidence categorizing defendant's argument as an "objection to the exclusion
of reputation evidence."  The court  reiterated its holding that WCC was not
a community of sufficient size, interest, duration and opportunity to
observe to have formulated a trustworthy reputation about the victim and
concluded that it had been correct in granting the motion in limine because
"the reputation evidence was not reliable or trustworthy."
     In this Court, defendant has abandoned his claim that he could have
shown the victim's reputation for veracity, but argues that the court's
ruling excluding testimony about a witness's opinion of the victim's
veracity was error.  The State's position here, different from that below,
is that the opinion evidence was inadmissible because defendant failed to
show it was based on personal knowledge of the witnesses involved.
     Defendant's position is based on V.R.E. 608(a) which allows the
character for truthfulness of a witness to be attacked by opinion
testimony. (FN1) The evidence involved here clearly fit within the rule because
the victim was a witness and it went solely to his character for
truthfulness.  The court's grounds for excluding the evidence, that it
didn't meet certain foundational requirements for the victim to have a
reputation, do not apply to opinion evidence.  Weinstein summarizes the use
of opinion evidence of character for truthfulness as follows:
         Witnesses may now be asked directly to state their
         opinion of the principal witness's character for
         truthfulness and they may answer for example, "I think X
         is a liar."  The rule imposes no prerequisite condi-
         tioned upon long acquaintance or recent information
         about the witness; cross-examination can be expected to
         expose defects of lack of familiarity and to reveal
         reliance on isolated or irrelevant instances of
         misconduct or the existence of feelings of personal
         hostility towards the principal witness.

3 Weinstein's Evidence  { 608[04], at 608-25 (1988).  Based on the
description of the evidence in the State's motion in limine, it met this
standard.
     The State now argues that it didn't meet the requirements of the rule
because the opinions of the persons who were deposed by the defendant were
based on "conjecture, rumor, or other inadmissible evidence."  We agree that
the grant of a motion in limine cannot be a ground for reversal if the
evidence excluded would not be admissible in any event and, thus, the
evidentiary ruling is harmless.  See State v. Griffin, 152 Vt. 41, 46, 563 A.2d 642, 645 (1989).  We also agree that the court has discretion under
V.R.E. 403 and 602 to exclude this kind of opinion evidence if "the witness
lacks sufficient information to have formed a reliable opinion."  3
Weinstein's Evidence { 608[04], at 608-25-26.  Even if we accept that we
can consider only the depositions taken by defendant in making that
evaluation, we cannot find the grant of the motion to be harmless.  In
general, the basis for an opinion is a matter for cross-examination, as
Weinstein states.  One of the inmates who gave a deposition stated that he
heard the victim describe the alleged sexual assault upon him "and I stood
up and I called him a liar because I knew that he was selling his ass and
his mouth for cigarettes and he said that he never said that."  He went on
to state that he knew personally people with whom the victim had engaged in
sexual acts in return for cigarettes. (FN2) We cannot find the evidence
inadmissible on the ground the state alleges.
     Nor can we find the exclusion of the evidence harmless beyond a
reasonable doubt, the standard when an alleged evidentiary error is
involved.  See, e.g., State v. Goodrich, 151 Vt. 367, 377-78, 564 A.2d 1346,
1352 (1989).  This was a credibility contest between the victim and the
defendant.  We can not say that a third party's opinion of the credibility
of the victim could not have tipped the scales such that defendant would
have been acquitted.
     Although the State has not argued it, there is a preservation issue in
this case.  It is not entirely clear that the trial judge recognized that he
was dealing with two types of evidence and that his ruling was excluding
both reputation and opinion evidence.  Certainly, defendant's attorney could
have been more clear on that point, and hindsight suggests that a request
for clarification of the trial court's ruling might have changed it.  For
three reasons, however, we believe that the issue was preserved.
     First, defendant met the basic requirements for preservation set forth
in our cases.  The grant of the motion in limine was a ruling excluding
evidence and thus is governed by V.R.E. 103(a)(2).  That rule states that
error can not be predicated on a ruling that excludes evidence "unless a
substantial right of the party is affected" and in the case of a ruling
excluding evidence, "the substance of the evidence was made known to the
court by offer or was apparent from the context within which questions were
asked."  As discussed above, the ruling excluded relevant evidence that
might have made a difference in the trial.  Unlike the recent decision in
State v. Ringler, 152 Vt. ___, ___, 571 A.2d 668, 670 (1989), the nature and
relevance of the testimony was apparent to the court although it was the
State that brought out that nature and relevance.  Defendant's counsel cited
to V.R.E. 608 and stated the proper ground for the admission of the
evidence.  The State's motion specifically described the proposed evidence
based on the depositions that defendant had taken. (FN3) The court did not
question the nature of the testimony in making its ruling.  This is not a
case where the pretrial ruling was conducted by one judge and the trial was
conducted by another.  See State v. Jewell, 150 Vt. 281, 282-83, 552 A.2d 790, 791-92 (1988) (where judge presiding at trial is different from the
judge who ruled on motion in limine, defendant must renew grounds in
evidentiary objection in order to preserve issue for review).
     Second, the confusion, if any, about the nature of the evidence was
caused by the State's motion in limine and not any action of the defendant.
The motion specifically covered "opinion and reputation evidence."  We have
emphasized that a motion in limine "'should be used, if used at all, as a
rifle and not as a shotgun.'"  State v. Dubois, 150 Vt. 600, 602, 556 A.2d 86, 87 (1988) (quoting Lewis v. Buena Vista Mutual Ins. Ass'n, 183 N.W.2d 198, 201 (Iowa 1971)).  The State filed a broad motion in limine, using a
shotgun rather than a rifle approach.  The State failed to distinguish the
requirements for reputation from those for opinion evidence and alert the
trial judge to this difference.  The motion in limine is an important way to
resolve issues prior to trial.  See State v. Hooper, 151 Vt. 42, 44 n.*, 557 A.2d 880, 881 n.* (1988).  The defendant, as well as the State, is entitled
to rely on that resolution.  We are reluctant to fault the defendant for
failing to convince the trial court that the State made a mistake in filing
such a broad motion or in failing to specify why opinion evidence should
have been excluded.
     Third, while it is possible that the trial judge would have
differentiated between opinion and reputation evidence if defendant's
counsel had sought a clarification, it is equally possible that the court
was aware of the distinction defendant was drawing and rejected it.  The
latter explanation is supported by the fact that defendant renewed the
argument in his motion for a new trial and specifically emphasized the lack
of a community requirement for opinion evidence.  The court's decision did
not differentiate between opinion and reputation evidence.  There is
nothing more that defendant could have done to have made the court aware of
the distinction.
     For the above reasons, we conclude that the exclusion of opinion
evidence of the victim's character for untruthfulness was error, the error
was not harmless, and defendant properly preserved it.  Accordingly,
defendant is entitled to a new trial.  Because the other asserted error
raised by defendant could result only in a retrial and is unlikely to arise
in a new trial, we do not reach it.
     Reversed and remanded.

                                        FOR THE COURT:




                                        Associate Justice



FN1.    This case does not involve V.R.E. 404(a)(2), which specifically
authorizes the defendant to show a character trait of the victim.  That rule
applies to any pertinent character trait, including the victim's character
for truthfulness.  However, under V.R.E. 405, character to be shown under
Rule 404(a) may not be proven by opinion.  See Reporter's Notes to V.R.E.
405 (Vermont did not adopt federal rule authorizing of opinion evidence of
character preferring to follow the Court's then recent decision in State v.
Sturgeon, 140 Vt. 240, 245, 436 A.2d 777, 780 (1981) excluding such
evidence).  Thus, the character evidence involved here becomes admissible,
if at all, because the victim was a witness in the trial, and it relates
solely to the victim's character for truthfulness.  The State has not argued
that the exclusion of opinion evidence of character in Rule 405 should apply
to a credibility challenge governed by Rule 608.  In light of the specific
authorization in Rule 608(a) of the use of opinion evidence, we see no
grounds for such an argument.

FN2.    We emphasize this evidence because it was based on personal
knowledge, contrary to the State's position in this Court.  The witness was
not directly asked his opinion in the deposition although we can fairly
infer he would have stated an opinion.  In any event, defendant had no
reason in the deposition to phrase his questions in terms of opinions.

FN3.    There is a question whether the State fully described the evidence
although that is not determinative of our conclusion.  Defendant's counsel
represented that "some of this information on veracity was not from just
inmates but were from several guards that were interviewed."  The attorney
for the State responded that "there was only one guard whose deposition
testimony I saw and I did not include any of his characterizations in my
motion" and that the guard to whom she referred was unavailable for trial.
The State's motion did not limit its effect only to the testimony of
inmates; it would have covered a guard if the guard were to testify as
defendant's counsel represented.  The court did not pursue this conflict.