State v. Houle

STATE_V_HOULE.92-327; 162 Vt. 41; 642 A.2d 1178

[Opinion Filed March 18, 1994]

[Motion for Reargument Denied May 5, 1994]


 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. 92-327


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Mary Houle                                   December Term, 1993



 Linda Levitt, J.


 Jeffrey L. Amestoy, Attorney General, and Seth A. Steinzor, Assistant
    Attorney General, Montpelier, for plaintiff-appellee

 Henry Hinton, Appellate Attorney, office of the Defender General, and Lisa
    Werner, Law Clerk (On the Brief), Montpelier, for defendant-appellant


 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.     Defendant appeals her convictions, after a jury trial,
 of two counts of simple assault and one count of unnecessary cruelty to a
 person in her care.  13 V.S.A. {{ 1023, 1305.  We affirm.
      Defendant was a licensed practical nurse at the Medical Center Hospital
 of Vermont.  The criminal charges against her, which stemmed from defend-
 ant's treatment of a stroke patient, alleged that defendant slapped the
 victim's legs repeatedly and shackled him to his bed at the wrists and
 ankles with his legs crossed.  By the time of trial, the victim had died of
 causes unrelated to the charged conduct.  During the trial, the State

 

 presented the testimony of an eyewitness who was present throughout the
 abusive incident, the victim's wife, employees of the hospital, and an
 investigator for the Office of Attorney General.  Defendant did not deny
 that she had restrained the victim, but claimed that her actions were
 necessary for the patient's protection and her own, and were neither
 assaultive nor cruel.  Defendant also produced the testimony of a nurse who
 was familiar with the victim's medical condition and care and his need for
 restraint.  This nurse was also used to impeach, through reputation
 evidence, the credibility of one of the State's witnesses.
      Defendant's claims of error all relate to the admission of evidence.
 Evidentiary rulings will not be disturbed on appeal "unless it clearly and
 affirmatively appears that the trial court withheld or abused its
 discretion."  State v. Catsam, 148 Vt. 366, 383, 534 A.2d 184, 195 (1987).
 Thus, a ruling will stand if it has a reasonable basis.  State v. Goodrich,
 151 Vt. 367, 375, 564 A.2d 1346, 1351 (1989).
                                     I.
      Defendant's first claim is that the trial court improperly admitted,
 over objection, evidence that the victim gave consistent accounts of the
 incidents underlying the charges to a hospital employee named Jean Herrick.
 At a pretrial conference, defendant objected on hearsay grounds.  The court
 overruled the objection, but questioned the relevance of the evidence.  The
 State argued that the evidence would prove that the victim was conscious at
 the time of the incident, and thus was able to suffer from defendant's
 cruelty.  The Court ruled that the evidence was admissible for the limited
 purpose of proving the victim's consciousness.  At trial, defendant renewed
 her objection.  On appeal, defendant argues that the evidence was improperly

 

 admitted because it was not relevant.  Although the record is ambiguous on
 preservation, the State does not argue that defendant's first claim of error
 was not preserved.  We therefore treat the error as preserved and review the
 court's ruling for an abuse of discretion.
      Defendant contends that the testimony was not relevant because: (1) the
 State was not required to show that the victim was "aware" of the crime to
 prove cruelty, and (2) even if the victim was conscious of the cruelty
 inflicted upon him, the fact that his statements were consistent over time,
 without evidence of the content of those statements, proves nothing.  In
 fact, evidence of a victim's state of mind is admissible to prove an element
 of a crime.  State v. Derouchie, 153 Vt. 29, 34, 568 A.2d 416, 418 (1989).
 In this case, the victim's awareness was relevant to the State's case
 because the trial court, in its instructions to the jury, defined cruelty as
 "intentional and malicious infliction of physical or emotional pain or
 suffering upon a person."  By showing that the victim was aware of what had
 happened to him, the State allowed the jury to infer that he had suffered
 physical or emotional pain.  It is true in the abstract, as defendant
 argues, that cruelty may also be shown by evidence of physical injury.  It
 does not follow, however, that because other kinds of evidence may prove the
 crime, the State's evidence was not relevant here.  See V.R.E. 401, 402.
      Nevertheless, defendant argues that the State's use of this evidence in
 closing argument reveals its hidden agenda -- to suggest to the jury that
 the victim's account of the events was consistent with that of the State's
 key eyewitness, Lena Fasser, thereby accomplishing the admission of the
 deceased victim's account of the events.  This testimony had been offered by
 the State, but excluded at trial.  The prosecutor's statement that the

 

 victim "would tell you just the same thing as what Lena Fasser told you"
 was, therefore, a reference to facts not in evidence.  It was made without
 objection.  The objection relied on by the defense for preservation of this
 issue was made in relation to a different statement, i.e., the number of
 times Ms. Herrick had spoken with the victim.  Thus, defendant can prevail
 only upon a showing of plain error.  See State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989).
      To meet the plain error standard, the prosecutor's statement must have
 been "so egregious that there is no room for doubt as to its prejudicial
 effect and this Court is convinced that affirmance would result in a mis-
 carriage of justice."  State v. Cohen, 157 Vt. 654, 655, 599 A.2d 330, 331
 (1991) (mem.).  It was patently inappropriate for the prosecutor to imply to
 the jury what the victim's testimony would have been had he testified at the
 trial.  But we do not conclude that the comment went "to the heart of a
 close case," State v. Gates, 141 Vt. 562, 569, 451 A.2d 1084, 1087 (1982),
 or could have "tipped the scales" in the State's favor, State v. Blair, 155
 Vt. 271, 276, 583 A.2d 591, 594 (1990).  The State presented a witness who
 was present when the incident occurred and who was able to describe the acts
 of abuse in detail.  The credibility of this eyewitness's testimony, and not
 what the victim's testimony would have been, was the centerpiece of the
 trial.  Though we disapprove of the prosecutor's statement, we do not con-
 clude that defendant's conviction was a miscarriage of justice.
                                     II.
      Defendant's second claim is that the State's use of her statements to a
 supervisor violated her right against self-incrimination under the Fifth

 

 Amendment to the United States Constitution (FN1) and Chapter I, Article 10 of
 the Vermont Constitution.(FN2) The State introduced evidence that defendant,
 when informed by her supervisor that she would be suspended pending investi-
 gation of the incident, responded by asking, "Should I get a lawyer?" and
 then left without making any other comment.  Defendant contends that she
 exercised her right against self-incrimination by referring to a lawyer and
 that use of this reference and of her failure to respond in any other way
 violated her right against self-incrimination.  She also argues that the
 wrongfully admitted evidence forced her to testify.
      Accepting at face value that defendant's response to her suspension was
 intended to invoke her right to remain silent, that right did not attach in
 a meeting with defendant's supervisor at which no police officers were
 present and at which defendant was entirely free to leave.(FN3)  State v.
 McElreavy, 157 Vt. 18, 25, 595 A.2d 1332, 1336 (1991).  In McElreavy, we
 held that the right against self-incrimination, under both the United States
 Constitution and the Vermont Constitution, does not attach absent custodial
 interrogation or a situation approximating incommunicado interrogation in a
 police-dominated atmosphere.  Id.  The confrontation that defendant
 questions took place at the Medical Center Hospital with no police officers
 present.  Defendant chose not to respond to the charges and left.  Nothing
 about the meeting remotely suggests the kind of coercive setting necessary

 

 to invoke the right protected by the Fifth Amendment and Article 10.
 Defendant's reliance on Commonwealth v. Harvey, 491 N.E.2d 607 (Mass. 1986),
 in which a police officer voluntarily participated in questioning by his
 superiors about theft from an arrestee, does not support her argument that
 the employment setting here was coercive.  Thus, admission of defendant's
 pre-arrest silence and her comment regarding the necessity of counsel to her
 private employer did not violate her right to remain silent.
                                      III.
      Finally, defendant claims that the trial court improperly admitted
 evidence that defendant threatened the State's key witness, even though the
 State had failed to notify the defense that it intended to introduce evi-
 dence of another criminal offense as required by V.R.Cr.P. 26(c).  An
 objection was made on relevance grounds, but not on lack of notice.  There-
 fore, our review is limited to plain error.  Roy, 151 Vt. at 23, 557 A.2d  at
 888 (1989).
      The State concedes that it failed to give notice, but argues that it
 substantially complied by disclosing the information in discovery.  The
 State misses the point of the rule.  Evidence of other crimes is particu-
 larly prejudicial if introduced at trial, and is subject to special rules of
 admissibility.  See V.R.E. 404(b), 609.  The purpose of Rule 26(c) is to
 inform the defendant of crimes the State intends to introduce and to allow
 the defendant time to respond by a motion in limine or otherwise.  This
 burden is not met by general discovery, in which the State discloses only
 what evidence it has.  It was error to admit the evidence when the State had
 failed to comply with the notice requirements, but it was not plain error.
 As noted above, the jury had before it substantial evidence from which it

 

 could find guilt.  The evidence about the threat did not result in a
 miscarriage of justice.
      Affirmed.


                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice
         
------------------------------------------------------------------------------
                               Footnotes

FN1.  "No person . . . shall be compelled in any Criminal Case to be a
 witness against himself . . . ."  U.S. Const. amend. V.

FN2.  "[I]n all prosecutions for criminal offenses, a person . . . [cannot]
 be compelled to give evidence against himself . . . ."  Vt. Const. ch. I,
 art. 10.

FN3.  Similarly, because the privileged right did not attach in the
 meeting, V.R.E. 512(a) does not apply.


------------------------------------------------------------------------------
                        Concurring and Dissenting

 

 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. 92-327


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Mary Houle                                   December Term, 1993


 Linda Levitt, J.


 Jeffrey L. Amestoy, Attorney General, and Seth A. Steinzor, Assistant
    Attorney General, Montpelier, for plaintiff-appellee

 Henry Hinton, Appellate Attorney, Office of the Defender General, and Lisa
    Werner, Law Clerk (On the Brief), Montpelier, for defendant-appellant


 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J., concurring and dissenting.  I would affirm on point III but
 because I disagree with the Court's reasoning there, I write separately.  I
 respectfully dissent on points I and II.
                                     I.
      The Court's rationale for justifying admission of the hearsay to prove
 the victim-patient was conscious is remarkable for what it omits.  The
 patient's telling to head-nurse Jean Herrick consistent accounts of how
 defendant treated him not only proved the patient was conscious, it tended
 to prove exactly what the prosecutor argued to the jury: "He would tell you
 just the same thing as what Lena Fasser told you."  Lena Fasser, a nurse's

 

 aid, testified about the sadistic details of defendant's abuse of the
 patient.  The jury would have well understood that had the patient's answers
 to Herrick's questions not implicated defendant in the crime, Herrick would
 not have testified for the State.  In fact the testimony left no doubt about
 the content of the patient's communication.  The questioning of Herrick
 began by the State asking her when and from whom she first learned of the
 "allegations of events involving" defendant and the patient, and then
 continued:
           Q.  And you testified earlier that you visited [the
               patient] regularly.  When you visited him did
               you speak with him?
           A.  Yes.

           Q.  And could he respond to you when you spoke with him.
           A.  Yes.

           Q.  How did he manage his part of the conversation?
           A.  He couldn't speak words because he had a
               tracheotomy.  He was very expressive facially and
               with his hands.

           Q.  Did you ever speak with him regarding these
               allegations that Lena Fasser had made to you?
           A.  Yes.

           . . . .

           Q.  And were [the three] conversations [with the
               patient] substantially different or did each one
               proceed pretty much the same way?
           A.  Pretty much the same way.

           Q.  And why did you talk to him so many times?
           A.  I wanted to make sure that he was able to have an
               understanding of what was going on and be able to
               say the same things.

           Q.  What was [the patient's] demeanor like when you
               talked with him in these conversations?
           A.  Sad.

           Q.  Did his demeanor change as you talked?
           A.  Yes.

 


           Q.  And in what way did it change?
           A.  He would become excited, trying to get me to
               understand something he wanted me to understand.  He
               would become excited.

           . . . .

           Q.  Now, without telling me anything that [the patient]
               said how did you begin the conversation?
           A.  Letting him know that I wanted to talk to him.

           Q.  And what kind of things did you talk to him about?
           A.  Why he was sad.

           Q.  And did you ask him any questions specifically
               regarding Miss Fasser's allegations?
           A.  Yes.

           Q.  And what were those questions?
           A.  Did something happen to him?  Did it happen at the
               hospital?  Did it happen in the daytime?  Did it
               happen in his room?  Was the person wearing blue
               clothes.

           . . . .

           Q.  Did you ask him any questions specifically directed
               to determining what if anything had happened to him?
           A.  Yes.

           Q.  And what were those questions?
           A.  . . .  Were you punched, were you slapped, were
               you hit, were you restrained, were you tied down?

           Q.  Did he provide specific answers to these questions?
           A.  Yes.

           . . . .

           Q.  And how did he communicate those answers?  Not
               telling me what he said, but what was his manner?
               How did he get it across?
           A.  Hand gestures, facial gestures, mouthing words.

           Q.  Did he provide consistent answers from one time to
               the next during those three conversations you had
               with him?
           A.  On some of the information, yes.

           Q.  And the things that he said that were consistent
               from one time to the next, were they also consistent

 

               with what Lena Fasser had told you and with your
               personal knowledge of the hospital?

               THE COURT:  I just don't think that's admissible.

               THE STATE:  I'll move on, Judge.

 The court stopped the line of questioning, but the jury had already gotten
 the point.  Yet, the State was not content to stop and proceeded.
           Q.  The matters that you were discussing with [the
               patient] in these conversations that you had with
               him did they have implications for the way that the
               nursing staff would care for him?
           A.  Yes.

           Q.  What were the implications?
           A.  Were people following procedure and safety?  If
               people were not following procedure what would be
               the implication?  Need for education.

           Q.  And what would the implications for safety have to
               do with it?
           A.  For the patient.  Was the patient put in a safe
               environment and were we providing a safe environ-
               ment.

           Q.  Would his answering affect how you went about
               providing that safe environment?
           A.  Possibly.

           Q.  If he told you one thing would you respond a certain
               way and if he told you another thing would you
               respond a different way?
           A.  Yes.

               DEFENSE COUNSEL:  May we approach the bench?

               THE COURT:  Not yet.  I can already tell you what
               the answer is.  If there's going to be an objection
               it will be sustained.

               DEFENSE COUNSEL:  We'll object then.


 At that point, the State turned to another subject.
      It is hard to tell what the Court thinks of this evidence conceded by
 the parties and recognized by the trial court as hearsay.  The Court states:

 

 "Evidence of the victim's state of mind is admissible to prove an element of
 the crime."  That may be true, but the end does not justify the means.  The
 only exception to the hearsay rule allowing such evidence is V.R.E. 803(3).
 Rule 803(3), however, applies only to "then-existing" states of mind:
             A statement of the declarant's then-existing state of
           mind, emotion, sensation, or physical condition (such as
           . . . mental feeling, pain and bodily health), but not
           including a statement of memory or belief to prove the
           fact remembered or believed . . . .

 V.R.E. 803(3) (emphasis added).  Consequently, though relevant, the evidence
 is nevertheless inadmissible hearsay.
                                     II.
      I profoundly disagree with the principle of governing law expressed in
 part II.  On a related issue, I had my say as the lone dissenter in State v.
 McElreavy, 157 Vt. 18, 27, 595 A.2d 1332, 1337 (1991) (Morse, J.,
 dissenting) (failure to attend civil deposition noticed to ask defendant
 about his involvement in arson was not relevant evidence of defendant's
 guilt in criminal case).  McElreavy, however, does not control here.
      McElreavy's "silence" in failing to attend the deposition was at best
 equivocal.  He may not have attended because he wished to remain silent,
 which was his Fifth Amendment right.  It is not more likely that a guilty
 person will remain silent in the face of an accusation than an innocent
 person.  We knew as much at least thirty years ago, when it was said, "[T]he
 privilege, while sometimes a 'shelter to the guilty,' is often 'a protection
 to the innocent.'"  Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)
 (quoting Quinn v. United States, 349 U.S. 155, 162 (1955)).
      Here, when defendant was confronted by her supervisor, she said,
 "Should I get a lawyer?" -- which is, I submit, the rhetorical way under the

 

 circumstances of asserting the right to remain silent.  The Court agrees
 that is what the words mean.  Had defendant not uttered a single word when
 confronted by her supervisor, McElreavy would control.
      Griffin v. California, 380 U.S. 609, 615 (1965), held that "the Fifth
 Amendment . . . forbids either comment by the prosecution on the accused's
 silence or instructions by the court that such silence is evidence of
 guilt."  Hence, neither the prosecution nor the judge may suggest to the
 jury that defendant's silence is substantive evidence of guilt.  Otherwise,
 defendant would suffer a penalty for exercising the right.  This rationale
 extends to prearrest silence, which under federal law may be offered in a
 criminal case for the limited purpose of impeaching the credibility of the
 defendant.  See Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980) (Fifth
 Amendment self-incrimination privilege not violated when prosecution
 impeaches defendant with prearrest silence).  No United States Supreme Court
 case has permitted a suspect's prearrest silence or assertion of the
 privilege to be used as substantive evidence of guilt.  See Coppola v.
 Powell, 878 F.2d 1562, 1563, 1566, 1568 (1st Cir.) (defendant's prearrest
 statement in response to noncustodial interrogation, "if you think I'm
 going to confess to you, you're crazy," was invocation of Fifth Amendment
 and inadmissible evidence against defendant), cert. denied, 493 U.S. 969
 (1989).
      Contrary to the Court's view, the right against "self-incrimination"
 operates prospectively even if invoked in a private setting.  One always has
 a right not to incriminate oneself even though the criminal proceeding has
 not yet been instituted.  The right is not merely contemporaneous with the
 trial.

 

     If all of this is not clear, V.R.E. 512(a) explicitly forbids comment on
 defendant's invocation of the privilege, no matter when invoked.  It states:
 "The claim of a privilege, whether in the present proceeding or upon a prior
 occasion, is not a proper subject of comment by judge or counsel.  No
 inference may be drawn therefrom."  (Emphasis added.)  Vermont could not
 provide a plainer rule.  Under today's ruling, I fear, prosecutors may
 routinely introduce evidence that defendant did not come forward and speak
 after being implicated in a crime.
      Under the Court's view, defendant was faced with a dilemma when her
 employer confronted her with misconduct.  She could have talked about it,
 which would have been admissible evidence against her.  She could have said
 nothing, which would have been admissible evidence against her.  Or she
 could, as she did here, invoke her constitutional right to remain silent,
 which under today's ruling is admissible evidence of guilt against her at
 trial.  These  choices leave a suspect no Fifth Amendment protection at
 all.  Ironically, the fact that defendant here did invoke her privilege was
 used to arouse prejudice against persons who "plead the fifth."
                                    III.
      The Court analyzes, under "our plain error standard," defendant's
 contention that the State's failure to give V.R.Cr.P. 26(c) notice requires
 a new trial.  In my view, no error was committed.  The State was not
 required to give notice under V.R.Cr.P. 26(c).  Not every "act," "bad" or
 otherwise, committed before or after the alleged offense is subject to Rule
 26(c).  Rule 26(c) refers only to V.R.E. 404(b) evidence, that is, evidence
 of "other crimes, wrongs, or acts" relevant to prove conformity with a
 particular character trait.  Thus, evidence relevant, although

 

 inadmissible, to show that defendant "acted in conformity therewith on a
 particular occasion," V.R.E. 404(a), may be admitted under Rule 404(b), if
 relevant for "other purposes."  In other words, evidence that is relevant to
 prove that a person acted in conformity with a particular character trait
 and therefore inadmissible may be admitted if it is relevant for another
 reason.  Rule 26(c) simply requires notice when the State intends to take
 advantage of V.R.E. 404(b).  V.R.E. 404(b) did not apply in this case
 because the evidence that defendant threatened a witness, although relevant
 to her character as a bad person, was not relevant for the purpose of
 proving that she acted in "conformity therewith" when she allegedly molested
 the patient.
      Intimidating a witness may be obstruction of justice, but it has no
 bearing on how a nurse treats a patient on a particular occasion.  Rather,
 the evidence was introduced as tending to prove defendant's consciousness of
 her guilt because she attempted to frighten a witness from testifying
 against her.  This evidence was no different than evidence of "flight" or
 destroying evidence to escape punishment.  We hardly require V.R.Cr.P. 26(a)
 notice for the State to introduce such evidence.  On the other hand, had the
 State sought to prove that defendant abused other patients, notice under
 V.R.Cr.P. 26(c) would have been required.
      For the reasons stated in points I and II, I would reverse and remand.


                                    ____________________________________
                                    James L. Morse, Associate Justice