State v. Quiroz

State v. Quiroz (99-263); 171 Vt. 509; 757 A.2d 464 

[Filed 23-May-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-263

                              APRIL TERM, 2000


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Bennington Circuit
                                       }
Daniel E. Quiroz	               }	DOCKET NO. 727-7-96 Bncr	
                                                Trial judge:  David Suntag


             In the above-entitled cause, the Clerk will enter:


       Defendant Daniel Quiroz was convicted by a jury of sexual assault on a
  minor.  He appeals,  claiming he was denied his right to confront the
  complaining witness when the court precluded him  from using a delinquency
  adjudication and specific instances of conduct to impeach her testimony  
  We affirm.

       Defendant was convicted of sexually assaulting his daughter, who was
  fourteen at the time she  reported the abuse.  The case against defendant
  rested on the victim's testimony; defendant denied  the allegations and
  attacked the victim's credibility.  During the course of the trial,
  defendant  impeached the victim by: eliciting testimony that the victim had
  been sent to counseling by her  stepmother for lying; by eliciting further
  testimony about her reputation for untruthfulness from  her stepmother and
  a school official; and by inquiring into specific instances when the victim
  lied  about stealing money, being neglected, making telephone calls,
  stealing a pocketbook and stealing  a ring.  However, when defendant
  attempted to introduce evidence of her adjudication of  delinquency for
  uttering a forged instrument, the court disallowed it.  Further, the court
  refused to  allow defendant to inquire in more detail about the specific
  instances of conduct.  Defendant  argues the court erred in disallowing the
  introduction of the delinquency adjudication and more  detail about the
  specific instances of conduct because these rulings denied him his
  constitutional  right to confront the witness.  

       The victim had previously been adjudicated a juvenile delinquent for
  stealing a pocketbook from a  teacher at school and forging and cashing
  checks that were in the pocketbook.  Rule 609(d) of the  Vermont Rules of
  Evidence provides that evidence of a juvenile adjudication is generally not 
  admissible to attack the credibility of a witness, unless "conviction of
  the offense would be  admissible to attack the credibility of an adult and
  the court is satisfied that admission in evidence 

 

  is necessary for fair determination of the issue of guilt or innocence." 
  V.R.E. 609(d).  Thus, to  be admissible a juvenile adjudication, like an
  adult conviction, must involve untruthfulness or  falsification, and the
  probative value must outweigh its prejudicial effect.  V.R.E. 609(a)(1). 
  In  addition, even if the evidence meets those criteria, the court must
  find the admission of the  juvenile conviction is "necessary" to a fair
  disposition of the case.

       The requirement that impeachment by a juvenile adjudication be allowed
  only where necessary is  intended to be interpreted consistently with Davis
  v. Alaska, 415 U.S. 308 (1974).  See Reporter's  Notes, V.R.E. 609(d). 
  Davis held that, although juvenile adjudications are generally
  confidential,  the Sixth Amendment right of confrontation required that the
  accused in that case be allowed to use  a juvenile adjudication to show the
  identifying witness may have felt pressured by the police to  make an
  identification.  415 U.S.  at 317-18.  The introduction of the juvenile
  adjudication in that  case was necessary because there was no other way for
  the defendant to prove his theory that the  witness's juvenile adjudication
  made him vulnerable to police pressure.  See id. at 318.  By  contrast,
  defendant here is attempting to utilize the juvenile adjudication to prove
  the victim is an  untruthful person and nothing more.  Defendant argues,
  essentially, that forgery represents a more  serious misrepresentation than
  the other lies told by the victim, and therefore the evidence was 
  necessary to prove that the victim was totally unbelievable.  Because there
  was other evidence of  lying, however, the delinquency adjudication was not
  necessary to the defense, and the court did  not err in excluding it.  See
  V.R.E. 403 (evidence may be excluded if cumulative); State v.  Larose, 150
  Vt. 363, 370, 554 A.2d 227, 232 (1988).

       Defendant also argues that his right to confront the witness was
  denied when the court limited his  cross-examination into specific
  instances of the victim's conduct.  Specific instances of the conduct  of a
  witness may be may be used to impeach the witness on cross-examination if
  they are probative  of untruthfulness.  See V.R.E. 608(b).  However, the
  decision whether to allow the inquiry lies  within the discretion of the
  court.  See State v. Fuller, 168 Vt. 396, 403, 721 A.2d 475, 481  (998);
  State v. French, 152 Vt. 72, 80, 564 A.2d 1058, 1063 (1989); Larose, 150
  Vt. at 368, 554 A.2d  at 232.  

       Defendant attempted to inquire into several incidents under rule
  608(b): lying to school authorities  about being neglected at home,
  stealing $150 from home and lying about it, stealing a ring from  her
  stepmother and lying about it, making up stories about her schoolmates,
  lying to her parents  about making phone calls, stealing the pocketbook and
  lying about it, and forging the checks from  the stolen pocketbook.  The
  court found that while the various incidents of stealing were not 
  probative of untruthfulness, the acts of lying were, making them admissible
  under Rule 608(b) to  impeach the victim.  See State v. Davis, 165 Vt. 240,
  250, 683 A.2d 1, 7 (1996) (specific  instances of conduct with minimal
  probative value not admissible to impeach witness).  Although  the court
  allowed defendant to ask the victim about the times she lied about
  stealing, it limited  defendant's ability to delve into the underlying acts
  of stealing because it determined that the  incidents of stealing were not
  independently probative of truthfulness.  We conclude that the court  did
  not abuse its discretion by imposing limits on defendant's inquiry.  See
  V.R.E. 403; Larose,  150 Vt. at 369-70, 554 A.2d  at 232 (court has wide
  latitude to impose reasonable limits



  on cross-examination).  

       We also conclude that the court did not abuse its discretion in
  precluding defendant from inquiring  into the forging of the stolen checks. 
  Again, notwithstanding that a specific act of conduct may be  probative of
  untruthfulness, the court has discretion to exclude it.  See Larose, 150
  Vt. at 368, 554 A.2d  at 231.  In ruling on each of these issues, the court
  considered the probative value, the  prejudice to the witness, and the
  cumulative nature of the evidence impeaching the witness.  These  are
  appropriate considerations, see V.R.E. 403, and we cannot say the court
  abused its discretion  in precluding defendant from inquiring into the
  forgery to attack the victim's credibility.


       Affirmed.




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice