State v. Rehkop

Annotate this Case

State v. Rehkop (2004-290); 180 Vt. 228; 908 A.2d 488

2006 VT 72

[Filed 25-Aug-2006]

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.

2006 VT 72

No. 2004-290

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit

John Rehkop September Term, 2005

Karen R. Carroll, J.
John P. Wesley, J.

William H. Sorrell, Attorney General, and Craig Matanle, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender
General, and Rebecca Turner, Law Clerk (On the Brief), Montpelier, for
Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. SKOGLUND, J. Defendant John Rehkop was convicted in Windham
District Court of three counts of sexual assault on a minor and sentenced
to nine years to twenty-four years of imprisonment. The offenses allegedly
occurred on the grounds of the Austine School for the Deaf in Brattleboro,
Vermont, where defendant was employed as a behavioral specialist and the
minor, N.K., was a fourteen-year-old student. The jury trial was
complicated by the fact that both defendant and N.K. are deaf. Defendant
appeals his conviction and argues that: (1) the pretrial-motions court
erred by refusing to conduct an in camera review of certain privileged
counseling files pertaining to N.K.'s history of untrustworthiness; and (2)
statements made by the prosecutor during closing arguments amounted to
plain error requiring reversal of the conviction and retrial. We agree
with both of defendant's arguments and reverse the conviction.

¶ 2. As in many cases of this nature, the trial was a credibility
contest between complainant and defendant. The evidence at trial included
neither physical evidence nor corroborating witnesses. The history of the
case is as follows.

¶ 3. N.K. attended the Austine School between 1994 and 1999. While
enrolled at another school in Massachusetts two years after she left
Austine, N.K. was traveling with the girls' basketball team and playing
"truth or dare" with her teammates. In response to the question of whether
anyone had had oral sex with a man, N.K. answered yes and said that it was
a staff member at Austine. Some time later, one of the teammates relayed
N.K.'s story to a school counselor named Allison Weiner. Weiner
interviewed N.K., and N.K. identified defendant as the man involved.
Weiner then contacted police, who charged defendant in July 2001 with four
counts of sexual assault on a minor.

¶ 4. Meanwhile, N.K.'s parents filed a civil suit in the United
States District Court for the District of Massachusetts seeking $5 million
in damages, alleging that Austine was negligent in its hiring, retention,
supervision, and entrustment of defendant and that the school, through
defendant, also committed assault and battery, deceit, and intentional
infliction of emotional distress.

¶ 5. During pretrial discovery in the criminal trial, defendant came
across records from the Austine School that documented a number of
incidents involving lies told by N.K. The documents included a prior false
allegation of improper sexual conduct made by N.K. against another student,
a counseling report describing N.K.'s counseling needs regarding "respect,
reputation, boundaries, defamation/character and the golden rule," a
counseling referral form describing N.K. as "less than truthful-could use
counseling to help her see the value of being truthful," a memo expressing
staff concern that "sometimes [N.K.] may lie," and an email from school
counselor Ina Schaeffer expressing concern over N.K.'s "ability to look you
in the eye and tell a lie."

¶ 6. Seeking to attack the veracity of N.K.'s accusations at trial,
defendant moved for deposition of Weiner and production of documents
pertaining to N.K. This discovery request, which was premised on
defendant's erroneous belief that N.K. had made the initial report of abuse
to Weiner, sought to uncover the therapeutic context of the allegations.
Defendant attached the Austine records to the motion as substantiated
examples of N.K.'s history of untrustworthiness, and argued a need "to
explore these credibility and emotional instability issues with the
complaining witness's therapist."

¶ 7. The court, Judge Carroll presiding, agreed that defendant "made
at least a prima facie showing that the victim has been untruthful in the
past, even about instances of sexual abuse," and noted that while
communications between therapists and patients are generally privileged
under Vermont Rule of Evidence 503, "[t]here is no privilege under this
rule for information indicating that a patient who is under the age of
sixteen years has been the victim of a crime," V.R.E. 503(d)(5). The court
accordingly allowed defendant to depose Weiner, but limited the scope of
discovery to: (1) details "surrounding the victim's report to the therapist
of the alleged abuse by the defendant," including any inconsistent
statements made by N.K. about the abuse; (2) whether N.K. had recanted any
portion of her allegation; and (3) whether Weiner was aware of any false
reports of abuse made by N.K. The court further limited the scope of
discovery by forbidding any questions concerning N.K.'s mental health
diagnosis or history of treatment.

¶ 8. During the subsequent deposition, defendant learned that N.K.'s
basketball teammate, not N.K., had made the initial report of abuse to
Weiner. Defendant then re-deposed N.K. about the "truth or dare" game,
which N.K. characterized as involving both exaggerated stories and
believable ones. N.K. also testified that some of her teammates did not
believe she was telling the truth. Noting the new circumstances, defendant
moved to redepose Weiner on the issue of "whether the complaining witness
was being treated by her therapist for problems related to telling lies,
dishonesty, manipulation, improper boundaries, or emotional/psychological
instability." Defendant also requested production of Weiner's notes
regarding N.K., arguing that the documents were necessary to support his
theory of the case that "the complaining witness lied to her friends about
him and then was unwilling to admit that she lied when she was confronted
about it by her therapist." Defendant sought this discovery to show that
lying was a continuing problem for N.K.

¶ 9. Defendant also issued a subpoena duces tecum to Ina Schaeffer,
a counselor at the Austine School who had treated N.K., and noted that the
school records showed that Austine staff members had recommended counseling
for N.K. about lying. For example, a counseling referral form suggested
that, when confronted, N.K. "becomes very defensive and less than
truthful-could use counseling to help her see the value of being truthful."
Defendant reasoned that "[t]estimony from Ina Schaeffer may illuminate the
extent to which the complaining witness struggled with telling the truth,"
and therefore, the testimony would "have significant impeachment value."

¶ 10. In June 2002, defendant moved the court to order the
redeposition of Weiner, the deposition of Schaeffer, and the production of
their records. In addition to the points described above, defendant also
argued that the initiation of the civil suit diminished N.K.'s interest in
the confidentiality of the records. Defendant relied on the exception to
the general patient privilege contained in Rule 503(d)(3), which states,
"[t]here is no privilege under this rule as to a communication relevant to
an issue of the physical, mental, or emotional condition of the patient in
any proceeding in which he relies upon the condition as an element of his
claim or defense," and argued that the civil complaint "clearly puts her
mental state at issue in the federal case, and constitutes a waiver of the
patient privilege not only in that proceeding but [in the criminal case] as
well."

¶ 11. In granting the motion in part and denying it in part, Judge
Carroll first found that the documents requested by defendant were
privileged under Rule 503, and characterized our holdings in State v.
Percy, 149 Vt. 623, 548 A.2d 408 (1988), and State v. Roy, 151 Vt. 17, 557 A.2d 884 (1989), as standing "for the proposition that privileges held by
victims and witnesses will not be overcome easily." The court then
articulated a balancing test for determining whether the records were
discoverable: "if the defendant makes a showing of a compelling need for
information, the various privileges recognized by law may be overcome in
limited circumstances" (internal quotations omitted).

¶ 12. The court held that defendant did not show a compelling need
for several reasons. First, while acknowledging that the school records
provided by defendant showed "certain problems which the school has had
with [N.K.]," including "a prior false allegation of inappropriate
touching," the court reasoned that "defendant already has information
available to him which he may attempt to utilize to show the victim's
untrustworthy behavior and history of lying." Additional information, the
court held, "would be cumulative at this point." Second, the court
characterized the information as useful for impeachment purposes only and
not "sought in order to disprove an element of the offense or negate a
contested fact in the case." Third, the court held that defendant had made
"no showing that the information he seeks relates in any way to the
victim's ability to recall or perceive events with accuracy." Weighing
these concerns in the aggregate against N.K.'s confidentiality interests,
the court held that "defendant's need is far outweighed by the right of the
alleged victim to freely seek mental health counseling and to preserve her
privacy."

¶ 13. The court then ruled that N.K. had not waived her patient
privilege by bringing the civil suit against the Austine Schoool,
reasoning: (1) it was the State, not the victim, that was pursuing the
criminal case; (2) "[t]he information would be used for a totally different
purpose-to attack the patient's credibility"; and (3) a contrary holding
"would encourage victims to not seek redress in the civil courts when this
is available to them." Accordingly, the court denied defendant's request
for further deposition of Allison Weiner and for production of her records.
The court allowed limited deposition of Ina Schaeffer within the limits
previously imposed on the deposition of Weiner. Defendant was tried before
Judge Wesley and convicted of three counts of sexual assault on a minor.

¶ 14. On appeal, defendant argues first that the court erred in
denying his motion seeking to redepose Weiner, to depose Schaeffer, and for
in camera review of their records to determine whether they contained any
evidence material to his defense, and second that certain statements made
by the prosecutor, without objection, during closing arguments require
reversal. In Section I, we hold that defendant was entitled to in camera
review of the counselors' records to enable the court to determine whether
any portion of the records supported defendant's theory that N.K. had a
history of lying. In so holding, we emphasize that N.K.'s veracity is the
only basis proffered by defendant that justifies in camera review, and we
recognize that in camera review could not be properly based on other
matters mentioned by defendant, such as "respect, reputation, boundaries,
defamation/character and the golden rule," or "manipulation, improper
boundaries, or emotional/psychological instability." In Section II, we
hold that the prosecutor's statements warrant reversal under the plain
error standard.(FN1)

¶ 15. In agreeing with defendant that due process requires in camera
review of any records of Weiner or Schaeffer concerning N.K.'s veracity, we
do not reach the question of whether any information contained in the
records would actually be admissible at trial. Our review is limited only
to the question of whether defendant's constitutional need for the
information outweighed whatever confidentiality interest remained in N.K.'s
counseling records to an extent that warrants an in camera review. Though
pre-trial discovery matters are generally within the discretion of the
trial court, we review de novo defendant's challenge to the
constitutionality of the discovery procedures at issue. State v. Roya, 167
Vt. 594, 595, 708 A.2d 908, 909 (1998) (mem.).

¶ 16. Central to this decision is the jurisprudential view of
privileges, which are protections from disclosure granted in narrow
circumstances. In United States v. Nixon, Chief Justice Burger discussed
various privileges, including the Fifth Amendment protection against
self-incrimination, attorney-client privilege, and executive privilege:

These and other interests are recognized in law by privileges
against forced disclosure, established in the Constitution,
by statute, or at common law. Whatever their origins, these
exceptions to the demand for every man's evidence are not
lightly created nor expansively construed, for they are in
derogation of the search for truth.

418 U.S. 683, 709-10 (1974).

¶ 17. When relevant evidence is excluded from the trial process for
some purpose other than enhancing the truth-seeking function, the danger of
convicting the innocent increases. To that end, "disclosure, rather than
suppression, of relevant materials ordinarily promotes the proper
administration of criminal justice." Dennis v. United States, 384 U.S. 855, 870 (1966). On the other hand, disclosure of privileged information
adversely affects the purposes underlying the need for confidential
relationships. Judicially-ordered disclosures of information also serve as
a disincentive to the maintenance of such relationships. Thus, though not
expansively construed, privileges held by victims and witnesses are not
easily invaded.

¶ 18. When the State possesses evidence that is material to the
guilt or innocence of a defendant, "[t]here can be no dispute that due
process principles guarantee the right of a defendant to discover relevant
evidence, whether favorable or harmful." State v. Dunbar, 152 Vt. 399,
408, 566 A.2d 970, 975 (1989) (citing Brady v. Maryland, 373 U.S. 83, 87
(1963)). The prosecutorial obligation to disclose evidence material to
guilt or innocence does not necessarily extend, however, to information
held by private entities, because the prosecution might otherwise be placed
"in the untenable position of facing an obligation to disclose a file that
it did not have and was unable to obtain." Roy, 151 Vt. at 34, 557 A.2d at
894. Although the United States Supreme Court relied on the prosecutorial
obligation to disclose material evidence as part of its rationale for
requiring in camera review of privileged records in Pennsylvania v.
Ritchie, 480 U.S. 39 (1987), there is little justification for applying a
different analysis when privileged records are held by private entities
rather than by the government. "[A] defendant's rights are no less worthy
of protection simply because he seeks information maintained by a
non-public entity." State v. Cressey, 628 A.2d 696, 704 (N.H. 1993).
Accordingly, we have recognized that a case may arise where due process
will require some access to privileged information about the victim not
held by the State. Percy, 149 Vt. at 635, 548 A.2d at 415.

¶ 19. Ritchie is the leading case on the issue of pre-trial access
to privileged records. In that case, a father appealed his conviction for
sexually assaulting his thirteen-year-old daughter and argued that the
trial court erred by denying his request for access to state juvenile
records pertaining to the alleged abuse. 480 U.S. at 43. The father
argued that the records "might contain the names of favorable witnesses, as
well as other, unspecified exculpatory evidence." Id. at 44. Because the
juvenile records were held by a state agency, the United States Supreme
Court analyzed the claim as a due process challenge based on the
prosecutorial obligation to disclose evidence that is material to the
defense. Id. at 57; see also Brady, 373 U.S. at 87 (holding that "the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt
or to punishment").

¶ 20. The Court did not hold, however, that the due process
obligation to disclose material evidence necessarily outweighed a statutory
privilege in every case. The records at issue in Ritchie were juvenile
records, compiled by the state, that documented a past investigation into
allegations of sexual abuse. Ritchie, 480 U.S. at 43. While the Court
acknowledged that "the public interest in protecting this type of sensitive
information is strong," id. at 57, the Court noted that the statute
protecting the files in question allowed for their disclosure pursuant to
court order. Id. at 57-58. The Court distinguished this type of
conditional privilege from "a case where a state statute grants [the state
agency] the absolute authority to shield its files from all eyes," and
reasoned that Brady required disclosure of any material evidence contained
in the files. Id. at 57.

¶ 21. The Ritchie Court, however, did not allow the defendant
unfettered access to the information. The Court instructed the trial court
to conduct an in camera review of the privileged files to determine whether
they contained any evidence material to the defense, but not before
requiring the defendant to make a particularized showing that the files
were likely to contain such evidence. See id. at 58 n.15 (holding that
"Ritchie, of course, may not require the trial court to search through the
[privileged] file without first establishing a basis for his claim that it
contains material evidence"). The Court thus remanded the case to the
trial court to allow the defendant an opportunity to make this showing.
Id. at 58. Upon such a showing, the trial court was instructed to review
the files as follows:

Ritchie is entitled to have the [state agency] file reviewed
by the trial court to determine whether it contains
information that probably would have changed the outcome of
his trial. If it does, he must be given a new trial. If the
records maintained by [the state agency] contain no such
information, or if the nondisclosure was harmless beyond a
reasonable doubt, the lower court will be free to reinstate
the prior conviction.

Id.

¶ 22. We first applied the Ritchie analysis in Percy, where a
defendant appealed his conviction for sexual assault and kidnapping and
argued, among other things, that the trial court erred by denying his
request for discovery of privileged communications between the victim and a
sexual assault therapist. 149 Vt. at 631-32, 548 A.2d at 413. The
defendant argued that disclosure was necessary because "the victim had
disclosed she was receiving professional counseling in a deposition," and
this fact warranted investigating "the veracity and reliability of [her]
statements as well as [her] mental, emotional, and psychological
condition." Id. at 632, 548 A.2d at 413 (internal quotations omitted).

¶ 23. We found significant differences between Percy's request and
the circumstances in Ritchie. First, we identified the compelling public
interest in protecting communications between sexual assault therapists and
victims, and found no exception to that privilege. Id. at 635, 548 A.2d at
415. We noted the level of candor required of such communications and
explained that "[w]e are particularly solicitous of the need of a victim of
a sexual assault to seek and receive mental health counseling without fear
that her statements will end up in the public record." Id. Thus, in the
absence of an exception to an important privilege, we held that the privacy
interest at stake was more compelling than in Ritchie.

¶ 24. Furthermore, unlike in Ritchie, the defendant had already had
an opportunity to make a particularized showing with respect to the
information. We found that the defendant had "made virtually no showing
that the information sought includes material evidence-indeed, defendant
essentially admitted the underlying acts." Id. at 634, 548 A.2d at 414-15.
In our line of post-Ritchie cases, the quality of the defendant's
showing-or the lack thereof-has been a central reason for our denial of
access to privileged records. For example, in Roya, where the defendant
challenged the constitutionality of a provision of our rape-shield statute,
13 V.S.A. § 3255(c), which prohibits a defendant from questioning a
complaining witness during deposition about prior sexual conduct except in
limited circumstances, the defendant "made no offer of proof to show that
the evidence is material to his defense and not otherwise available." 167
Vt. at 596, 708 A.2d at 910. In Roy, where a defendant sought access to a
police officer's personnel file in order to explore the officer's
"reputation for use of excessive force," 151 Vt. at 31, 557 A.2d at 893,
the defendant made only a "vague reference to the officer's reputation" and
did not make an offer of proof or argue in any way the information might
actually be admissible at trial, id. at 34-35, 557 A.2d at 895.

¶ 25. Thus, in balancing the compelling privacy interests at stake
in Percy with the defendant's weak showing of constitutional need, we
concluded that "[w]e are unwilling to require the victim to forego
counseling or risk disclosure absent the most compelling justification-none
has been asserted here." 149 Vt. at 635, 548 A.2d at 415. We
acknowledged, however, "the possibility that a case will arise where due
process will require some access to privileged information about the victim
not held by the State." Id.

¶ 26. We agree with defendant that this is that case. Because
defendant made a sufficiently particularized showing that the counseling
files in question may indeed contain material evidence bearing on the
question of N.K.'s veracity, we hold that the court erred in its balancing
of the interests involved. Therefore, defendant is entitled to have the
court conduct an in camera review of the requested documents.(FN2)

¶ 27. We note that the privileged relationship between sexual
assault therapist and victim is not implicated here. This is not a case
where a sexual assault victim has sought counseling after the attack, and
defendant then seeks discovery of those communications to test her
recollection or her ability to remember events. Rather, the only
counseling records eligible for in camera review in this case are those
pertaining to issues of trustworthiness addressed by N.K. and her school
counselors at times unrelated to the alleged offenses.

¶ 28. Furthermore, when the patient declares his or her willingness
to disclose privileged information outside of the protected relationship,
the public policy reasons for non-disclosure are greatly weakened. In
general, "[a] patient has a privilege to refuse to disclose and to prevent
any other person . . . from disclosing confidential communications made for
the purpose of diagnosis or treatment of his physical, mental, dental, or
emotional condition . . . ." V.R.E. 503(b). The purpose of this privilege
is to protect patients from unwanted disclosures of sensitive information
to third persons. Preservation of confidentiality beyond the point of
voluntary disclosure by the patient is to "'preserve a privacy which exists
in legal fiction only.'" State v. Mincey, 687 P.2d 1180, 1194 (Ariz. 1984)
(quoting 8 Wigmore, Evidence § 2389(4), at 860-61 (McNaughton rev. 1961)).
While it is unnecessary today to rule on whether N.K. actually waived her
patient privilege pursuant to Rule 503(d)(3)(FN3) by filing a civil claim
for damages for emotional distress, her claim to privacy is diminished by
her demonstrated willingness to openly discuss at least some of the
contents of her mental health records in pursuit of money damages. In
balancing defendant's request for potentially material evidence with N.K.'s
interest in preserving confidentiality, the confidentiality interest is
lessened because the asserted privacy interest exists largely as a legal
fiction.

¶ 29. We turn now to the analysis of defendant's showing of need for
the privileged information. We hold that defendant made a particularized
preliminary showing that the counselors' privileged records likely
contained material evidence necessary to his defense. The school records
that defendant attached to his motion demonstrated a series of events,
occurring around the general time of the alleged offenses, that cast doubt
upon N.K.'s truthfulness. The records reflected problems that Austine
staff members had with N.K. as a result of her lying, including a prior
false allegation of improper touching, and revealed that N.K. had received
at least some counseling for issues relating to trustworthiness. Because
these records related specifically to N.K.'s truth-telling, they suggest
that in camera review of Weiner's and Schaeffer's counseling records might
have revealed evidence bearing on N.K.'s veracity, supporting defendant's
theory that N.K. struggled with telling the truth. As stated above, supra,
¶ 14, N.K.'s documented problems with truthfulness form the only proper
basis for in camera review here.

¶ 30. Despite the quality of defendant's offer of proof, the court
denied his motion for further discovery. The court's conclusion was based
on two erroneous determinations: first, that the evidence was not sought
for exculpatory purposes; and second, that the evidence sought by defendant
would be cumulative to evidence already in his possession. We address each
of these in turn.

¶ 31. Because the evidence at trial included neither physical
evidence nor testimony from corroborating witnesses, N.K.'s credibility was
one of the "the core issue[s] to be resolved by the jury." Commonwealth v.
Sheehan, 755 N.E.2d 1208, 1212 (Mass. 2001) (internal quotations omitted).
Evidence pertaining to the extent to which N.K. struggled with lying "could
have been helpful for the jury to determine whether the complainant was
telling the truth or whether [she] imagined the entire incident." Id.
(internal quotations omitted). Furthermore, because the Due Process Clause
requires the government to disclose evidence in its possession that is both
favorable to the accused and material to guilt or punishment, Brady, 373 U.S. at 87, the United States Supreme Court has "disavowed any difference
between exculpatory and impeachment evidence for Brady purposes." Kyles v.
Whitley, 514 U.S. 419, 433 (1995). Evidence is material "if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." United
States v. Bagley, 473 U.S. 667, 682 (1985). Thus, the court's emphasis on
the exculpatory value of the information was misplaced because, in this
case, evidence of the extent to which lying was a problem for the
complaining witnesses may well have been material and thus affected the
outcome of the trial.

¶ 32. Furthermore, the court erred by concluding that the
sought-after information would be cumulative before examining the contents
of the records. Such a procedure would satisfy the constitutional concerns
raised by the denial of access, Ritchie, 480 U.S. at 61, as we "rely
particularly heavily on the sound discretion of the trial judge to protect
the rights of the accused as well as the government." Rubalcada v. State,
731 N.E.2d 1015, 1018 (Ind. 2000) (internal quotations omitted).

¶ 33. Nonetheless, defendant is not entitled to unfettered access.
As limited as the privacy interest may be in this case, there is still no
reason to "sacrifice unnecessarily" the confidential nature of N.K.'s
communications with her counselors. Ritchie, 480 U.S. at 60. The purposes
behind statutory privileges "would be frustrated if this confidential
material had to be disclosed upon demand to a defendant . . . simply
because a trial court may not recognize exculpatory evidence. Neither
precedent nor common sense requires such a result." Id. at 61. In camera
review "provides a useful intermediate step between full disclosure and
total nondisclosure." State v. Gagne, 612 A.2d 899, 901 (N.H. 1992)
(internal quotations omitted). Thus, we hold that the balance between
statutory privileges and a defendant's right to a fair trial can be
adequately protected by in camera review of privileged records by the trial
court. Accord Ritchie, 480 U.S. at 60; Commonwealth v. Bishop, 617 N.E.2d 990, 996 (Mass. 1993); People v. Stanaway, 521 N.W.2d 557, 574 (Mich.
1994); Gagne, 612 A.2d at 901; State v. Kelly, 554 A.2d 632, 636 (R.I.
1989).

II.

¶ 34. We turn now to the prosecutor's closing arguments at trial.
At trial, defense counsel presented a series of school witnesses who
contradicted portions of N.K.'s account of the underlying events. In many
places, the witnesses testified that they did not remember certain
incidents that N.K. described. During his closing, the prosecutor
suggested that he would have charged several defense witnesses with
perjury, but for their claimed lack of memory:

There is a difference between perjury and very biased
testimony, as I'm sure all of these witnesses know, and
that's why you get a lot of, "I don't remember," because how
can I prove whether or not they remember something when I now
charge them with perjury? How can I prove that? There's no
way to prove that.

(Emphasis added.) Even if inadvertent, the statements amounted to an
expression of personal belief that the defense witnesses were lying-a
belief backed by the prosecutor's declaration that a perjury charge was
deliberately frustrated by the witnesses. We have long condemned
prosecutors' statements conveying their beliefs or opinions about a case.
See State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330, 333 (1987) (faulting a
prosecutor's statement of personal belief that the defendant was guilty);
State v. Messier, 146 Vt. 145, 159, 499 A.2d 32, 42 (1985) ("It is
axiomatic in criminal jurisprudence that prosecutors must refrain from
expressing their personal belief as to the defendant's guilt in their
closing argument."); State v. Parker, 104 Vt. 494, 500, 162 A. 696, 699
(1932) (denouncing as "prejudicial" a prosecutor's statement that "I
naturally believe that this complaint is warranted and I think that I was
justified in issuing it"). We disapprove of such statements because they
create "a great risk that the jury will give special weight to this opinion
because of the prestige of the prosecutor and the fact-finding facilities
available to the office." Ayers, 148 Vt. at 425, 535 A.2d at 333.

¶ 35. The prosecutor also made representations about an Austine
School lawyer's statements during the civil proceedings that undermined the
veracity of the defense witnesses. He said:

I was, in preparation for the trial, looking through some
transcripts related to the civil proceeding and I was reading
something from one of the Austine School lawyers and it says
something like, "Well, you know, we've got nothing against
[N.K.]. We don't know whether or not she's telling the
truth. We don't know."

There was no evidence introduced on this point during the criminal trial.
"The long-standing rule in Vermont is that counsel should confine argument
to the evidence of the case and inferences properly drawn from it." State
v. Lapham, 135 Vt. 393, 406, 377 A.2d 249, 257 (1977). While prosecutors
are entitled to a good deal of latitude in their closing arguments, they
are "bound to keep within the limits of fair and temperate discussion . . .
circumscribed by the evidence in the case." State v. Hannett, 54 Vt. 83,
89 (1881).

¶ 36. On appeal, the State concedes that the prosecutor should not
have raised in closing arguments material not introduced as evidence at
trial. The State argues instead that, because defense counsel did not
object to either the perjury comments or the reference to the civil
proceedings, we may not reverse absent plain error.

¶ 37. A finding of plain error "require[s] a showing that the error
strikes at the heart of [a] defendant's constitutional rights or results in
a miscarriage of justice." Ayers, 148 Vt. at 426, 535 A.2d at 333.
Because we afford prosecutors a great deal of latitude when making their
closing arguments, we have found plain error "only if the argument is
manifestly and egregiously improper." Id. (internal quotations omitted).
Thus, in the context of a challenge to a closing argument, a finding of
plain error is supported only when the defendant "establish[es] that the
prosecutor's closing argument was not only improper, but also that it
impaired the defendant's right to a fair trial." State v. Gates, 141 Vt.
562, 566-67, 451 A.2d 1084, 1086 (1982).

¶ 38. Though the threshold for plain error is high, the prosecutor's
statements in this case went beyond a general attack on the "veracity,
consistency, or bias" of the defense witnesses. Id. at 567, 451 A.2d at
1086. The prosecutor's representation that he would have considered
charging the defense witnesses with perjury went beyond the "limits of fair
and temperate discussion," Hannett, 54 Vt. at 89, by stating blatantly his
opinion that the defense witnesses lied under oath when they testified.
This opinion plainly prejudiced the defendant's right to a fair trial
because the credibility of the defense witnesses was a critical issue to be
resolved by the jury. Furthermore, the attempt to undermine the
credibility of the defense witnesses by purporting to quote from
transcripts not in evidence was "manifestly and egregiously improper."
Ayers, 148 Vt. at 426, 535 A.2d at 333. The portion of the transcript
described by the prosecutor suggested that the lawyers for defendant's
employer had no reason to disbelieve N.K. This directly undermined
defendant's presentation of a series of reasons as to why the allegations
should not be believed and created an unsupported inference that
defendant's theory of the case was fabricated.

¶ 39. The statements in this case both expressed a personal belief
about the case and drew on material not admitted as evidence in a manner
calculated to prejudice the jury's resolution of the core issue of the
case. For these reasons, we conclude that the prosecutor's errors during
his closing argument deprived defendant of his right to a fair trial and
require reversal of the conviction.(FN4)

Reversed and remanded for further proceedings consistent with this
opinion.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. Defendant also argues on appeal that the court committed plain error
by omitting from the jury instructions the precise locations of the alleged
sexual encounters as described in the charging documents. In light of our
decision, we need not address this issue.

FN2. In this connection, we note that the trial court enjoys discretion to
direct limited discovery reasonably necessary to minimize either any
privacy intrusion or the time required to conduct an in camera inspection
of documents, or both. See Schmitt v. Lalancette, 2003 VT 24, ¶ 9, 175
Vt. 284, 830 A.2d 16 (observing that "trial court rulings on discovery . . .
are left to the sound discretion of the trial judge").

FN3. Rule 503(d)(3) provides that "[t]here is no privilege under this rule
as to a communication relevant to an issue of the physical, mental, or
emotional condition of the patient in any proceeding in which he relies
upon the condition as an element of his claim or defense."

FN4. Just prior to oral argument, defendant moved for leave to submit
additional briefing on the denial of his motion for a new trial.
Defendant's motion is denied as moot in light of this decision.

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