State v. Cartee

STATE_V_CARTEE.92-603; 161 Vt. 73; 632 A.2d 1108

[Filed 08-Oct-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-603


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Orleans Circuit

 Richard Cartee                               May Term, 1993


 Walter M. Morris, Jr., J.

 Jane Woodruff, Orleans County State's Attorney, Newport, for plaintiff-
    appellee

 Norman R. Blais, Burlington, for defendant-appellant


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



      MORSE, J.   Defendant Richard Cartee was tried by a jury and convicted
 of two counts of sexual assault of a person under the age of sixteen
 pursuant to 13 V.S.A. { 3252(a)(3) (statutory rape).  He appeals, claiming
 that the trial court abused its discretion and violated his Sixth Amendment
 right to confrontation in two ways: First, by excluding evidence that
 complainant may have fabricated the charges to protect his stepfather, who
 had been implicated by defendant in committing an insurance fraud, and,
 second, by excluding impeachment evidence of complainant's prior juvenile
 adjudication for sexual assault.  Defendant also claims that the trial court
 erred by admitting into evidence inconsistent hearsay statements to impeach
 an absent defense witness whose deposition was read to the jury. Defendant

 

 further claims plain error due to the exclusion of females under age sixteen
 from the courtroom during the complainant's testimony. Finally, defendant
 asserts that, in fashioning the sentence, the court violated his Fifth
 Amendment right against self-incrimination.  We decide only the first issue
 and reverse and remand for a new trial.
        In May 1991, complainant, a sixteen-year-old boy, accused defendant,
 a bookkeeper employed by the boy's mother, of committing two separate acts
 of oral sex on him during the summer of 1990.  The accusations surfaced when
 complainant was in residential treatment for drug and alcohol-related
 problems.  He disclosed the alleged assault to his drug treatment counselor
 after a group-therapy session where other residents related experiences of
 sexual abuse.  The Vermont Department of Social and Rehabilitation Services
 (SRS) was promptly informed. A few days later, on May 26, 1991, the boy told
 his mother about the incidents.  During a police interview on June 1, 1991,
 defendant was made aware of the charges against him and denied the
 allegations.
      About one month after the sexual assault charges were filed, defendant
 went to the police and gave incriminating information to both state and
 federal law enforcement officials concerning the alleged involvement of
 complainant's stepfather in fraudulent insurance practices. The stepfather's
 insurance business had been the subject of an ongoing investigation since
 the summer of 1990. That summer, complainant's stepfather was notified by
 the United States Attorney's Office in New Hampshire that the FBI was
 investigating him in connection with suspected insurance fraud. The
 stepfather received notification about the same time complainant alleges the
 sexual assault occurred.

 

      Prior to the investigation, defendant was employed for a time as a
 bookkeeper for the boy's stepfather.  At the police interview and before the
 judge at trial, defendant stridently argued that the sexual assault charges
 levied against him were fabricated by complainant in an effort to stop
 defendant from providing information to the authorities investigating
 complainant's stepfather.
      Before trial, the state moved to exclude any evidence that referred to
 the investigation of the stepfather. Defendant made an offer of proof that
 (1) the investigation of the stepfather for fraud was underway before any
 allegations of sexual assault; (2) soon after the investigation started, the
 stepfather threatened defendant in an attempt to get him to remain silent
 about his knowledge of the business; (3) complainant's mother met with
 defendant's brother and proposed an arrangement whereby the sexual assault
 charges would be dropped in return for defendant's signed agreement not to
 testify further against the stepfather; and (4) thereafter, complainant and
 his mother met with the state's attorney in an effort to have the sexual
 assault charges dropped.  Defendant argued that this evidence tended to show
 complainant fabricated sexual assault charges to dissuade defendant from
 implicating the stepfather in the federal investigation.
      The court ruled that the evidence contained in the offer was
 inadmissible because it amounted to no more than "mere speculation" that
 complainant knew of these offers, negotiations, and threats. The court also
 regarded the contended probative link as "defying logic" and stated that,
 even if there were some probative value, it was outweighed by the potential
 of confusing the issues, misleading the jury, and unfairly prejudicing the
 State's case. See V.R.E. 403 (relevant evidence may be excluded when

 

 substantially outweighed by countervailing factors). At trial, defendant
 renewed his request to explore complainant's motive for filing charges
 after complainant testified that he had gone to the state's attorney on the
 day of defendant's arraignment to drop the sexual assault charges because he
 "was going through a lot and . . . was sick of dealing with everything."
 Defendant argued that the prosecutor had opened the door to questioning
 about motive.  Standing on its earlier ruling, the court refused to allow
 the line of questioning.
      Our analysis begins with V.R.E. 403, which states: "Although relevant,
 evidence may be excluded if its probative value is substantially outweighed
 by the danger of unfair prejudice, confusion of the issues, or misleading
 the jury, or by considerations of undue delay, waste of time, or needless
 presentation of cumulative evidence."  The trial court has discretion to
 balance these factors.  Discretionary rulings of the trial court will not
 be reversed by this Court absent a showing of an abuse of that discretion.
 State v. McElreavy, 157 Vt. 18, 23, 595 A.2d 1332, 1335 (1991).  On appeal,
 the burden falls upon the defendant to show that the court's discretion was
 either withheld or exercised on clearly unreasonable grounds. State v. Dorn,
 145 Vt. 606, 616, 496 A.2d 451, 457 (1985). Finally, this Court will not
 disturb reasonable discretionary rulings of the trial court "even if another
 court might have reached a different conclusion." State v. Foy, 144 Vt. 109,
 115, 475 A.2d 219, 223 (1984).
      In cases of sexual assault or abuse where the complainant is the only
 witness, the presence of an ulterior motive for the victim's making the
 accusations is often a critical issue. Such was the case here. And though
 the evidence offered in this case to explain complainant's possible motive

 

 to falsely accuse defendant was of arguable probative value, it certainly
 was not a matter of "mere speculation."
      Our analysis of whether the trial court abused its discretion by
 unreasonably disallowing the evidence of motive is further amplified by
 defendant's constitutional right to confront witnesses against him. In Davis
 v. Alaska, 415 U.S. 308 (1974), the United States Supreme Court recognized
 that the primary purpose of confrontation is to guarantee a means for the
 opponent to test the truth and accuracy of a witness' testimony: "the
 exposure of a witness' motivation in testifying is a proper and important
 function of the constitutionally protected right of cross-examination." Id.
 at 316-17.  The Court concluded that the cross-examination permitted by the
 trial court was insufficient to develop the issue of bias, and having found
 a violation of defendant's Sixth Amendment right to confrontation, the Court
 stated:

           [W]e do conclude that the jurors were entitled to have
           the benefit of the defense theory before them so that
           they could make an informed judgment as to the weight to
           place on [the witness'] testimony which provided "a
           crucial link in the proof . . . of petitioner's act."
 Id. at 317 (quoting Douglas v. Alabama, 380 U.S. 415, 419 (1965)).
 Following Davis, this Court specifically acknowledged that a trial court's
 discretion "to restrict the impeachment of a key prosecution witness with
 evidence reflecting on his credibility is limited" by the protection
 afforded by the Confrontation Clause.  State v. Covell, 146 Vt. 338, 341,
 503 A.2d 542, 544 (1985) (reversing trial court's exclusion of impeachment
 evidence aimed at attacking witness's credibility based on both state and
 federal constitutions).

 

      We recognize that the Sixth Amendment and Chapter I, Article 10 of the
 Vermont Constitution do not prevent a trial court from imposing reasonable
 limits on cross-examination into the partiality of a prosecution witness.
 Insofar as the Confrontation Clause is concerned, a court retains wide
 latitude "to impose reasonable limits on such cross-examination based on
 concerns about, among other things, harassment, prejudice, confusion of the
 issues, the witness' safety, or interrogation that is repetitive or only
 marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); cf.
 State v. Johnson, 143 Vt. 355, 359, 465 A.2d 1366, 1368 (1983) (provisions
 of Chapter I, Article 10 do not guarantee admission of prejudicial or
 misleading evidence).
      In this case, however, the trial court allowed no inquiry into the
 possibility that complainant, given the ongoing investigation of his
 stepfather, was motivated to fabricate in order to undermine or to prevent
 damning testimony by defendant, who was his stepfather's former bookkeeper.
 Complainant's uncorroborated testimony was the only evidence of the alleged
 abuse.  Reasonable doubt about his believability would have necessarily
 resulted in an acquittal. Given that complainant's credibility was a
 pivotal issue bearing on defendant's guilt, the trial court should have been
 "particularly cautious in exercising its discretion to preclude impeachment
 evidence offered by a defendant" due to the state and federal constitutional
 issues implicated in such a decision.  State v. Covell, 146 Vt. at 341, 503 A.2d  at 544; see also State v. DeJoinville, 145 Vt. 603, 606, 496 A.2d 173,
 175 (1985) (greater reasons for exploring probative evidence offered to shed
 light on credibility when case turns on which of two witnesses is to be
 believed).

 

      By excluding the evidence about the investigation of complainant's
 stepfather, the jury was left without benefit of a reasonably complete
 understanding of complainant's account.  In this context, cross-
 examination was largely an empty gesture.  Considering the critical role
 complainant's testimony and credibility occupied in the trial, exclusion of
 the impeachment evidence regarding motive was prejudicial and cannot be
 considered harmless error. See Delaware v. Van Arsdall, 475 U.S.  at 684
 (Confrontation Clause issues subject to harmless error analysis). We
 conclude that the trial court went too far in excluding this evidence and
 that a new trial is required.
      Defendant also sought, unsuccessfully, to have admitted under V.R.E.
 609 evidence of complainant's prior adjudication of delinquency for sexual
 assault in order to attack complainant's credibility. The sexual assault by
 the boy took place during the summer of 1990, sometime before he claimed he
 was sexually assaulted by defendant. We do not decide this issue, but remand
 for reassessment on retrial considering its potential relevance to
 complainant's motive in bringing the particular accusation against
 defendant.
      Given our disposition, defendant's other claims on appeal need not be
 addressed.
      Reversed and remanded.
                                         FOR THE COURT:


                                         ____________________________
                                         Associate Justice