In re Hamlin

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. 88-593


In re Louis Hamlin, III                      Supreme Court

                                             On Appeal from
                                             Chittenden Superior Court

                                             January Term, 1990

Arthur J. O'Dea, J.

Gear and Davis, Inc., Burlington, and Oreste V. Valsangiacomo, Barre, for
   petitioner-appellant

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for respondent-appellee


PRESENT:  Allen, C.J., Peck and Gibson, JJ., and Springer, D.J. (Ret.),
          Specially Assigned


     PECK, J.  Petitioner appeals from the superior court's denial of his
petition for post-conviction relief.  Petitioner argues that the court erred
by declining to recognize statements made by J.S. at Northern Tier Youth
Services as exculpatory and material evidence.  Specifically, he claims that
the State's nondisclosure of these statements violated his rights to due
process and confrontation, as well as V.R.Cr.P. 16(b)(2), and Chapter I,
Article 10 of the Vermont Constitution.  We affirm.
                                     I.
     On May 21, 1981, petitioner, age sixteen, and J.S., age fifteen, were
arrested for the brutal attack seven days earlier on two young girls on
their way home from school, while walking along a shortcut in the woods
often used by local school children.  One of the girls died as a result of
the attack, and the other suffered serious injuries.  Petitioner was tried
for and convicted of first degree murder, 13 V.S.A. { 2301, and aggravated
sexual assault, 13 V.S.A. {{ 3252 and 3253.  He was sentenced to forty-five
years to life for the murder, and fifteen to twenty-five years for the
sexual asault.  J.S. was classified as a juvenile under Vermont law at the
time, and therefore not prosecuted as an adult.
     The State sent J.S. to Northern Tier Youth Services in Blossburg,
Pennsylvania for evaluation, treatment, and rehabilitation.  In April, 1982,
J.S. reported to counselors that he had perpetrated the crimes after
receiving encouragement from petitioner.  These statements came to defense
counsel's attention inadvertently after the trial, while working on another
case.  The Northern Tier statements, according to petitioner, were
consistent with J.S.'s deposition testimony that was read to the jury at
trial.  Petitioner asserts that the statements that J.S. made at Northern
Tier exculpate petitioner and have a reasonable probability of changing the
outcome of the trial.  The following evidence from the trial is relevant to
our analysis of whether the Northern Tier statements are exculpatory and
material.
     J.S. gave a lengthy statement to the police when he was first
apprehended implicating petitioner as the actual killer.  The trial was
postponed from November 1981 to May 1982, so that the State could depose
J.S.  That deposition took place on January 7th, 8th and February 16th of
1982.  After the deposition had been transcribed, J.S. read over his
testimony and changed hundreds of answers -- approximately 225 -- in the
transcript.  At trial, the jury heard the oral deposition testimony and the
written alterations J.S. made to the deposition transcript.
     Glaring contradictions mark J.S.'s deposition testimony.  J.S. gave
conflicting answers pertaining to the facts repeatedly.  His oral answers
most often characterized petitioner as the initiator, leader and primary
perpetrator of the crimes, while his written changes shifted the blame from
petitioner onto himself as the party responsible for the brutal acts.
Responses by J.S. addressed to his truthfulness also abound with
inconsistencies.  Relevant illustrations of the testimony appear below with
the analysis of petitioner's claims.
     As shown below, the trial court acted well within its discretion by
concluding that the Northern Tier statements do not warrant post-conviction
relief.  The evidence supports the court's finding that the statements were
at least cumulative, and at most more inculpatory than the deposition of
J.S. read to the jury at trial.
                                    II.
     In his motion for post-conviction relief and now on appeal, petitioner
argues that under Brady v. Maryland, 373 U.S. 83 (1963), the Northern Tier
statements were exculpatory and should have been disclosed to him before
trial.
     We do not reach the questions of whether the State committed the
alleged procedural and constitutional violations in failing to produce the
allegedly exculpatory statements.  At oral argument, petitioner conceded
that he would consider this question resolved if the Northern Tier records
had not been received by the State until after trial.  The Northern Tier
records were date-stamped May 17, 1982.  The State did not have the
information in its possession, custody, or control until at least three days
after trial which concluded on May 14, 1982.  We therefore address
petitioner's only remaining claim of error.
                                   III.
     Petitioner asserts that even if the State obtained the Northern Tier
records after trial, these statements still constitute grounds for a new
trial.  The trial court applied the new trial standard set forth in
V.R.Cr.P. 33 when it evaluated petitioner's motion for post-conviction
relief.  On appeal, petitioner must show that the trial court abused its
discretion in denying the motion.  State v. Smith, 145 Vt. 121, 131, 485 A.2d 124, 130 (1984).
     Smith sets forth the stringent five-part test that petitioner must
satisfy in order to obtain a new trial based on newly discovered evidence.
          (1) [I]t must appear that the new evidence would
          probably change the result upon retrial; (2) the new
          evidence must have been discovered subsequent to trial;
          (3) the evidence could not have been discovered earlier
          by the exercise of due diligence; (4) the evidence is
          material; and (5) the evidence is not merely cumulative
          or impeaching.
Id., 485 A.2d at 130-31; see also State v. Jewell, 150 Vt. 281, 285, 552 A.2d 790, 792 (1988) (listing new trial criteria).  Failure to meet any one
of the five criteria results in the denial of a new trial.  Smith, 145 Vt.
at 131, 485 A.2d  at 131.
     The trial court determined after its in camera review that "the only
new information coming from the Northern Tier interviews were J.S.'s
statements that the defendant had encouraged and solicited the killings."
It found that "the statements made by J.S. could not have benefitted the
defendant at any stage of his trial.  Quite to the contrary, . . . the
Northern Tier records tended to reflect unfavorably on the defendant."
(Emphasis in original.)  The court described the content of the records,
stating:
          It is indeed true that J.S. in his Northern Tier
          statements, confessed to the murder for which the
          defendant was convicted.  It is also true that J.S.'s
          Northern Tier statements portray the defendant as an
          accomplice, and not a principal. . . .  [T]hese prior
          statements are hardly revelatory, as prior deposition
          testimony of J.S., which was read to the jury at trial,
          said essentially the same thing.  However, these
          statements were not merely cumulative, they were more
          damaging to the defendant than the deposed statements of
          J.S. which were introduced at trial.
(Emphasis in original.)
     We find no support in the record for petitioner's assertion that the
judge abused his discretion in concluding that J.S.'s Northern Tier
statements were cumulative and not material.  Our review of the deposition
and Northern Tier statements confirms the court's conclusions.  Amidst all
of the contradictions, the deposition read at trial contained ample evidence
of the same details that J.S. delivered to the Northern Tier treatment team.
     For example, J.S.'s deposition contains at least seven separate
statements explaining that he made the decisions and acted all on his own,
without petitioner's direction.  J.S. said that he had the idea to kill the
girls, and many times said that he wanted the girls dead so that he and
petitioner would not get caught.  Finally, J.S. vividly described how he
committed the offenses in at least thirteen sections of the deposition, many
at considerable length.  This evidence could have easily exculpated
petitioner if the jury had believed J.S.  The Northern Tier statements are
cumulative.
     We reject petitioner's assertion that J.S. was more inclined to be
truthful in a treatment setting.  The Northern Tier records explain why
J.S.'s statements in the context of treatment contain no additional
persuasive value.  Petitioner, however, has been unable to assess J.S.'s
honesty in the context of this treatment setting because he has not been
able to review the Northern Tier records.  The Northern Tier statements do
not exculpate petitioner any more than the deposition statements read at
trial.  The evidence supports the court's finding that the statements would
not benefit petitioner. (FN1)
     Where newly discovered evidence is merely cumulative, a new trial will
not be granted.  State v. Jewell, 150 Vt. at 285, 552 A.2d  at 792; see State
v. Potter, 148 Vt. 53, 64 n.6, 529 A.2d 163, 170 n.6 (1987) (although not
ruling on whether evidence was cumulative, Court noted trial court's problem
with witness's credibility: "'falsus in uno, falsus in omnibus' (false in
one thing, false in everything)").  We hold that J.S.'s Northern Tier
statements are cumulative and thus do not justify the grant of a new trial.
In the well-stated conclusion of the trial court, "it is difficult at best
to see how yet another, more inculpatory mutation of J.S.'s constantly
evolving account of the killing could have assisted the defendant."
     Affirmed.
                                             FOR THE COURT:
                                             _____________________________
                                             Associate Justice



FN1.     We note that this Court has reviewed this deposition before in a
prior appeal by petitioner.  State v. Hamlin, 146 Vt. 97, 106-07, 499 A.2d 45, 52 (1985).  At that time, we observed that J.S.'s "prior statements and
testimony are contradictory. . . .  nobody knew what [J.S.] might say on
the witness stand."  Id. at 108, 499 A.2d  at 53 (citations omitted).