State v. Webster

State v. Webster  (94-106); 165 Vt 54; 675 A.2d 1330

[Opinion Filed 15-Mar-1996]

       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. 94-106


State of Vermont                                  Supreme Court

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

Roger Webster                                     January Term, 1996


Walter M. Morris, Jr., J.

       Robert L. Sand, Department of State's Attorneys, Montpelier, for
  plaintiff-appellee

       David J. Williams of Sleigh & Williams, St. Johnsbury, and Thomas P.
  Donnellan of Moore & Donnellan, Derby, for defendant-appellant


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


       JOHNSON, J.   Defendant appeals multiple assault convictions, arguing
  that the trial court erred by (1) excluding for substantive purposes
  certain evidence regarding an alleged affair between the complaining
  witness, defendant's wife, and the chief investigating officer, and (2)
  denying a motion for new trial based on newly discovered evidence, namely
  an answering machine tape purporting to show defendant's wife threatening
  the officer.  We affirm.

                                I.

       Defendant was convicted of seven counts of simple assault.  Five of
  the assaults were against his wife, one was against his older daughter,
  then eleven, and one was against his younger daughter, then eight.(FN1)
  Defendant's wife testified that she and her children had endured

 

  several years of physical and emotional abuse while living with defendant. 
  The two children also testified, describing the abuse they suffered, and
  corroborating some of the abuse directed at their mother.  The State also
  presented the testimony of several corroborating witnesses.  One witness
  testified that she had observed bruising on defendant's wife.  Another
  witness testified that he had counseled defendant's wife about the abuse. 
  The corroborating witnesses also established that defendant's wife had
  revealed the abuse and sought relief as early as February 1990, more than
  two years before the local sheriff, who was the chief investigating
  officer, became involved in the case.

       On appeal, defendant argues that his rights to confront witnesses and
  present a defense were violated because the trial court refused to permit
  defendant to pursue his theory of the case. Defendant sought to undermine
  the credibility of the complaining witness, defendant's wife, by presenting
  evidence regarding alleged romantic involvement between defendant's wife
  and the sheriff.  Although the court permitted much of the relevant
  testimony for impeachment purposes, the court instructed the jury that they
  were not to determine whether the affair took place, but only to consider
  the evidence in deciding whether or not they believed defendant's wife and
  the other witnesses.

       The trial court excluded the evidence under V.R.E. 403, which permits
  the exclusion of relevant evidence where the probative value of the
  evidence "is substantially outweighed by the danger of unfair prejudice,
  confusion of the issues, or misleading the jury."  The trial court has
  discretion to balance these factors, and we will not disturb the trial
  court's ruling absent a showing of an abuse of that discretion.  State v.
  Cartee, 161 Vt. 73, 75, 632 A.2d 1108, 1110 (1993).  In criminal cases,
  however, the broad discretion of the trial court in evidentiary matters is
  limited by defendant's constitutional right to confront witnesses against
  him and by the demands of due process.  Id. at 76, 632 A.2d  at 1110; State
  v. Covell, 146 Vt. 338, 341, 503 A.2d 542, 544 (1985).

 

       We note first that defendant has overstated the extent to which the
  trial court limited his presentation of his defense.  Defense counsel was
  free to cross-examine the three complaining witnesses about possible
  motives to fabricate the charges.  For example, defense counsel presented
  to the jury the possibility that defendant's wife had fabricated the
  charges either to gain advantage in her pending divorce action, or to
  divert attention from her own pending criminal charges.  Defense counsel
  did succeed in impeaching defendant's wife with respect to the alleged
  affair, by calling two witnesses to contradict her denial of the affair. 
  The first, an acquaintance of defendant's wife, testified that defendant's
  wife had confided in her about the affair; the second, a deputy sheriff,
  testified that he went to the sheriff's camp one night, saw defendant's
  wife's vehicle parked there, heard voices inside, but received no response
  to his greeting until the sheriff emerged and came down the driveway just
  before the deputy left.  As defense counsel stated more than once during
  the trial, the defense theory of the case was that "[defendant's wife]
  lacks credibility," and the trial court's limiting instruction was not
  inconsistent with that theory.  Rather, the court's instruction was
  intended to remind the jury not to be distracted by the conflicting
  evidence regarding the affair.(FN2)

       Regardless, the trial court acted within its discretion by limiting
  the evidence to

 

  impeachment purposes.  Defendant presents a theory that defendant's wife
  conspired with the sheriff to concoct a story of abuse and coach
  defendant's daughters to support the story.  Had defendant had evidence to
  support such a theory, that evidence certainly would have been admissible. 
  All defendant offered, however, was evidence tending to show that
  defendant's wife and the sheriff had an affair.  Defendant chose not to
  pursue the "coaching" theory during cross-examination of the children. 
  The sheriff was not called as a witness by the State, and gave no testimony
  in support of the charges against defendant, so any possible bias of the
  sheriff was not relevant.  As defense counsel repeatedly argued during the
  trial, the principal issue in this domestic abuse case was the credibility
  of the complaining witnesses.  Evidence as to the sheriff's actions and
  motives had no bearing on the credibility of defendant's wife and children.
  We agree with the trial court that evidence of the alleged affair had
  minimal probative value, but was very likely to confuse the issues at the
  trial and mislead the jury.

       Defendant argues that this case is analogous to Cartee, in which this
  Court reversed the defendant's sexual assault convictions and remanded for
  a new trial because the trial court excluded evidence that the complaining
  witness may have fabricated the charges.  In Cartee, however, the defendant
  presented a coherent theory explaining the claimed motive to fabricate, and
  made an offer of proof supporting that theory.  Specifically, the
  defendant, a bookkeeper who had worked for the complainant's stepfather,
  claimed

     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.


  161 Vt. at 74-75, 632 A.2d  at 1109-10.

       This case may be distinguished from Cartee on several grounds.  Here,
  the trial court

 

  was particularly concerned that the jury not be distracted by the
  conflicting evidence regarding the alleged affair, the fact of which was
  never conclusively established.  The possibility for prejudice was thus
  greater than in Cartee, where the fact of the fraud investigation was
  undisputed.  Also, we emphasized in Cartee that because the only evidence
  against the defendant was the victim's uncorroborated testimony, the
  victim's motivation was a "critical issue." Id. at 76, 632 A.2d  at 1110. 
  In this case the testimony of defendant's wife was corroborated by the two
  children and by the State's other witnesses.

       Moreover, defendant's "theory of the case" is just that: a theory, for
  which he offered no supporting evidence.  Unlike the evidence of harassment
  and dealmaking in Cartee, the mere fact of an affair between defendant's
  wife and the sheriff does not suggest that defendant's wife fabricated the
  charges against her husband.  Although in Cartee, the proffered evidence
  centered on actions of the complainant's family members, those actions
  suggested a reason why the complainant might have fabricated the charges
  against the defendant.  Here, after impeaching the credibility of
  defendant's wife, defendant in essence sought to impeach the sheriff as
  well, by creating a mini-trial on the issue of the affair.  As the
  sheriff's credibility was not in issue, however, evidence tending to show
  his bias was not relevant.

                                II.

       Defendant's second claim of error is that the trial court improperly
  denied his motion for a new trial based on newly discovered evidence.  The
  new evidence was an audio tape from a telephone answering machine that
  contained four statements made by defendant's wife.  The statements, which
  were recorded on the sheriff's answering machine on a single day several
  months before defendant's trial, read as follows:

     This is a message to you, Jim, I'm not fooling around, you best be
     doing something.

     Just another message I can turn over those pictures.  I just wanted
     to let you know I am not going to give up this time because you
     lied and got caught in your own lie, goodbye.

 

     Just want you to know that I know that you are still not home, that
     you lied to me.  And I also want you to know that I don't
     appreciate lies and we need to talk and get this straightened out.
     I know that you spent the night in Island Pond, because I have
     checked it out, good night.

     Jim, I suggest you call me soon or there is going to be big trouble
     in Island Pond today.  We need to really discuss this thoroughly,
     thank you.


       The trial court evaluated this evidence in light of the standard for a
  new trial on grounds of newly discovered evidence.  To prevail on a motion
  for a new trial on these grounds, defendant must meet five requirements:

     "(1) it must appear that the new evidence would probably change
     the results 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."

  State v. Miller, 151 Vt. 337, 338, 560 A.2d 376, 377 (1989) (quoting State
  v. Smith, 145 Vt. 121, 131, 485 A.2d 124, 130-31 (1984)).

       The trial court found that defendant had met the second, third, and
  fourth requirements, and noted that the tape "piqued curiosity" and
  possibly could be construed as an attempt by defendant's wife to threaten
  or blackmail the sheriff into continuing the investigation against
  defendant.  Nonetheless, the court concluded that the new evidence was
  "merely impeaching" and that defendant had not shown that the evidence
  would change the outcome upon retrial.

       The decision to grant or deny a new trial rests within the sound
  discretion of the trial court.  We will overturn the trial court's decision
  only upon a showing that the court abused or withheld its discretion.  Id.
  at 339, 560 A.2d  at 377.  Moreover, as we have previously recognized,
  meeting the first requirement is "particularly difficult . . . because it
  requires the probability of a different result, not simply a possibility of
  a different result."  Id.

       In light of the substantial evidence presented by the State in this
  case, we agree that a different result was not probable as a result of the
  new evidence.  The tape-recorded statements may have provided additional
  ammunition for impeachment of defendant's wife, but defense

 

  counsel managed quite extensive impeachment of defendant's wife without the
  tape.  Although the statements may support defendant's claim that
  defendant's wife was romantically involved with the sheriff, the statements
  do not undermine the credibility of the State's other witnesses, including
  the two children.  Nor do the statements explain a principal flaw in the
  defense theory, namely that defendant's wife began complaining of abuse
  more than two years before the sheriff entered the investigation. 
  Considering the overall strength of the case against defendant, the trial
  court did not abuse its discretion in denying defendant's motion for a new
  trial.

       Affirmed.



                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes


FN1.  Defendant faced thirteen counts of simple assault and one count
  of lewd and lascivious conduct.  He was acquitted of four of the simple
  assault charges and the lewd and lascivious conduct charge; the jury was
  unable to reach a verdict on two simple assault charges, and the court
  declared a mistrial as to those charges.


FN2.  Defendant also points to three items of testimonial evidence
  excluded by trial court.  First, the acquaintance would have testified
  further that defendant's wife made statements to her regarding the
  sheriff's sexual performance.  The acquaintance's testimony about the
  affair was properly admissible to impeach defendant's wife, but we agree
  with the trial court that the additional testimony was cumulative,
  unnecessary, and likely to distract the jury.  Second, defendant sought to
  present testimony of a bank official that the sheriff had tried to subpoena
  defendant's bank records back to 1970.  The state's attorney explained that
  the subpoena, which specifically requested name changes on the account, was
  an attempt to verify allegations that defendant had controlled the family
  finances and kept his wife's name off the family bank accounts.  The trial
  court, within its discretion under V.R.E. 403, properly concluded that the
  probative value of the evidence, if any, was outweighed by its prejudicial
  impact.  Finally, the trial court excluded a deputy sheriff's testimony
  about a conversation with the sheriff in which the sheriff admitted his
  involvement with defendant's wife.  That testimony was hearsay not within
  any exception and was properly excluded under V.R.E. 802.