State v. Tester

State v. Tester (2006-051)

2007 VT 40

[Filed 11-May-2007]


       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.


                                 2007 VT 40

                                No. 2006-051


  State of Vermont                               Supreme Court

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

  Dwight Tester, Sr.                             December Term, 2006


  Katherine A. Hayes, J.

  David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro,
    for  Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


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

       ¶  1.  DOOLEY, J.   Defendant Dwight Tester, Sr., was convicted
  after a jury trial of aggravated sexual assault of his daughter, D.T. 
  While his direct appeal was pending, defendant  moved for a new trial under
  Vermont Rule of Criminal Procedure 33 on the grounds of newly discovered
  evidence.  The trial court denied his motion, concluding that there was no
  reasonable probability that defendant's proffered evidence would have
  changed the outcome of his trial.  Defendant appealed, arguing that the
  court erred in evaluating the relevance and admissibility of the evidence. 
  We affirm.  


       ¶  2.  The record indicates the following.  Defendant was charged with
  aggravated sexual assault in April 2003.  The State relied on D.T.'s
  hearsay statements at trial to establish defendant's guilt.  Its evidence
  showed that in April 2003, when D.T. was seven years old, she told her
  foster mother that defendant had come into her room, knelt by her bed, and
  touched her vagina.  See State v. Tester, 2006 VT 24, ¶ 4, 179 Vt. 627, 895 A.2d 215 (mem.).  Following this disclosure, D.T. was  interviewed by a
  Bellows Falls police detective, and an investigator with the Department for
  Children and Families (DCF).  At the interview, D.T. reiterated that
  defendant had come into her room and touched her, and she indicated that
  the touch was "inside" her vagina.  Id. ¶ 8.  The assault apparently
  occurred at defendant's home in Bellows Falls, not long after D.T. and
  several siblings relocated to Vermont from Texas, where they had been
  living with their mother.  We affirmed defendant's conviction on appeal,
  concluding that D.T.'s hearsay statements were properly admitted at trial,
  and that the evidence was sufficient to establish defendant's guilt.  Id. ¶
  1. 

       ¶  3.  In October 2004, more than one year after his conviction and
  during the pendency of his direct appeal, defendant filed a Rule 33 motion
  for a new trial.  He asserted that he had just discovered a videotaped
  interview of D.T. and her older sister K.T., which took place on December
  3, 2002, approximately four months before he allegedly sexually assaulted
  D.T.  Defendant argued that the videotape was exculpatory evidence that the
  State was constitutionally obligated to disclose under V.R.Cr.P. 16 and
  Brady v. Maryland, 373 U.S. 83, 87 (1963) and that the State's failure to
  disclose this evidence entitled him to a new trial.
   
       ¶  4.  The court denied defendant's motion after a hearing.  It made
  the following findings.  D.T. and K.T. were interviewed at the Springfield
  DCF office in December 2002 at defendant's prompting.  One week earlier,
  defendant had described alleged acts of sexual abuse perpetrated against
  D.T. by "her mother's boyfriend" to a detective in the Springfield Police
  Department.  At that time, defendant expressly acknowledged the children's
  upcoming DCF interview.  

       ¶  5.  The children's interview was conducted by the Springfield
  detective and the same DCF investigator who would later interview D.T.
  about her allegation that defendant sexually assaulted her.  The interview
  focused on whether the children had been abused by their mother or her
  boyfriends while they were living in Texas.  The interview consisted mainly
  of conversation between K.T. and the police detective.  K.T. described
  abuse and neglect in their mother's home.  She stated that her mother told
  her about sex and had sex in front of her.  K.T. theorized that D.T. had
  engaged in inappropriate sexual contact with their younger brother because
  her mother had "taught her" such behavior.  K.T. also stated that one of
  her mother's friends had touched her.  

       ¶  6.  D.T. spent most of the time during the interview playing with
  toys and wandering around the room.  Her statements were limited, but
  included descriptions of physical abuse by her mother, description of an
  incident where she was in the bathroom and one of her mother's adult male
  friends came in and pulled down his pants and boxers, a statement that her
  brother stabbed the friend  in the leg, a statement that the friend
  "touched me," and a nodding-of-the-head response to a question whether
  D.T.'s mother had taught her to engage in conduct that included improperly 
  touching her brother.
   
       ¶  7.  The Springfield detective forwarded copies of the videotaped
  interview to law enforcement authorities in Texas.  The DCF investigator
  retained an audiotape of the interview, which she turned over to a staff
  person at the Springfield DCF office responsible for such items.  The tape
  was not made part of the children's file or the family's DCF file, but was
  instead placed in a box of similar taped interviews that related to many
  Springfield DCF cases.  Neither the DCF investigator nor the Springfield
  detective made any report to the Windham County State's Attorney's office
  or to the Bellow Falls Police Department regarding this interview until
  June 2004,  when defendant requested a copy of the videotape.  The record
  does not indicate whether such a report would be normal, but we note that
  the Town of Springfield is in Windsor, not Windham, County.

       ¶  8.  As noted above, in April 2003, the Bellows Falls police
  detective interviewed D.T. with respect to the instant case, and the same
  DCF investigator was also present.  The Bellows Falls  detective did not
  learn that D.T. had been previously interviewed by the Springfield
  detective and the DCF investigator until June 2004, when, at defendant's
  request, he was asked to obtain any tape or other record of such an
  interview by the Windham County's State's Attorney's Office.   

       ¶  9.  Based on these and additional factual findings, the court
  turned to defendant's legal arguments.  While defendant filed his motion
  for a new trial based on "newly discovered evidence" under Rule 33, he
  argued that the State had committed a Brady violation by failing to
  disclose the videotape, and that the suppression of this information caused
  a due process violation sufficient to warrant a new trial.  The court
  evaluated the evidence in light of the standard applicable to this claim. 
  It explained that under Brady and its progeny, if the State failed to
  disclose exculpatory evidence in its possession, a new trial would be
  warranted only if the omitted evidence was material, that is, 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. Petrillo, 821 F.2d 85, 88-89 (2d Cir. 1987) (quoting United
  States v. Bagley, 473 U.S. 667, 682 (1985)); see also United States v.
  Agurs, 427 U.S. 97, 112 (1976).  
   
       ¶  10.  In this case, the court explained, D.T.'s credibility was the
  sole issue at trial.  Thus, if the State failed to disclose any evidence
  that directly bore on her credibility, it was potentially exculpatory, and
  if such evidence was in fact material, then a new trial would be required. 
  The court found D.T.'s statements regarding physical abuse and neglect by
  her mother irrelevant to any of the issues at trial.  The only arguably
  relevant statements, the court explained, were D.T.'s very equivocal
  statements about whether her mother may or may not have "taught her" to
  engage in sexualized behavior by engaging in sexual activities in her
  presence and her claims that: (1) mother's adult male friend came into the
  bathroom while D.T. was there and pulled down his pants and boxers; (2) the
  friend touched her; and (3) she touched her little brother in sexual ways. 
  The court concluded that all of these statements related to D.T.'s "prior
  sexual conduct," and thus, would have been inadmissible at trial under the
  rape-shield statute, 13 V.S.A. § 3255.  

       ¶  11.  In reaching its conclusion, the court rejected defendant's
  assertion that D.T.'s statements provided evidence that she may have been
  mistaken as to who assaulted her or that mother's adult friend, or some
  other person in Texas, committed the alleged offense.  As the court
  explained, identity was not at issue in defendant's trial.  D.T. repeatedly
  and clearly identified defendant as the person who touched her, and the
  fact that D.T. may have also been sexually assaulted by another man while
  in her mother's care was simply irrelevant.  The court thus concluded that
  defendant's motion was without merit.  This appeal followed. 
   
       ¶  12.  Defendant argues that the trial court erred in denying his
  motion because it failed to consider K.T.'s statements in its analysis, and
  it erred in concluding that certain evidence would have been inadmissible. 
  According to defendant, both children's statements were relevant and
  material because they could have been used to challenge the admissibility
  of D.T.'s hearsay statements before trial, and they could have been used as
  impeachment evidence during trial.  Defendant maintains that the admission
  of the videotape also would have allowed the jury to see and hear D.T. and
  her sister, and to contrast D.T.'s demeanor and acuity on the videotape
  with her trial testimony.  Defendant argues that evidence about abuse and
  neglect was relevant as "context" evidence, that part of the videotape
  evidence is not barred by the rape shield statute, and that the remainder
  must be admitted despite the statute to protect defendant's constitutional
  confrontation right. 

       ¶  13.  Although we adopt a different reason, we affirm the district
  court's decision. (FN1)  In evaluating defendant's claim, we must first
  identify what he is required to prove to prevail.  These elements have
  become somewhat confused because defendant has argued that he is entitled
  to a new trial due to the State's violation of its obligation under Brady. 
  In these circumstances, defendant has generally argued that the
  demonstration of a Brady violation is enough to obtain a new trial and he
  does not additionally have to prove the new-trial elements set out in Rule
  33.  The State has taken the opposite side of this argument, asserting in
  part that defendant was required to prove the elements for a new trial set
  out in Rule 33 and he failed to do so.
   
       ¶  14.  To support his claim of a Brady violation, defendant needed to
  show that: (1) the State suppressed evidence; (2) the evidence was
  favorable to him because it was either exculpatory or impeaching; and (3)
  he was prejudiced as a result of the suppression.  State v. LeClaire, 2003
  VT 4, ¶ 8, 175 Vt. 52, 819 A.2d 719.  To warrant a new trial on the basis
  of newly discovered evidence under Rule 33, defendant needed to establish
  all of the following:  (1) the new evidence would probably change the
  result upon retrial; (2) the new evidence was discovered after trial; (3)
  the evidence could not have been discovered sooner through due diligence;
  (4) the evidence was  material; and (5) the evidence was not merely
  cumulative or impeaching.  State v. Smith, 145 Vt. 121, 131, 485 A.2d 124,
  130-31 (1984).
    
       ¶  15.  Although the elements of the Brady violation and those
  required for a new trial  overlap, they are not the same and even appear
  inconsistent with respect to impeachment evidence.  Nevertheless, relying
  on this Court's decision in State v. Sird, 148 Vt. 35, 528 A.2d 1114
  (1987), the State argues that defendant must show all of the elements of a
  new-trial motion and a Brady violation to prevail.  It particularly draws
  on the holding of Sird that the failure to disclose the criminal record of
  a witness to allow cross-examination on that basis did not meet the
  new-trial  standard, despite the arguable Brady violation, where the
  defendant did cross-examine the witness on other points-specifically that
  she "could not remember the details of the evening in question."  Id. at
  40, 528 A.2d  at 1116.

       ¶  16.  We need not rely on the State's broad reading of Sird because
  defendant here fails, as a matter of law, to meet an element that is in
  both Brady and the new-trial standard-that is, the requirement that the
  evidence on the videotape be newly discovered.  For purposes of an alleged
  Brady violation, we held in LeClaire:

     The purpose of the first element, suppression of evidence by the
    State, and Brady as a whole is "to assure that the defendant will
    not be denied access to exculpatory evidence only known to the
    Government."  United States v. LeRoy, 687 F.2d 610, 619 (2d Cir.
    1982).  Therefore, where the defendant has notice of the essential
    facts which would allow the defendant to take advantage of any
    exculpatory evidence, and fails to do so, the defendant cannot
    then argue under Brady that the prosecution suppressed or failed
    to disclose such evidence. See United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993).

  2003 VT 4, ¶ 9.  For purposes of a new trial motion based on newly
  discovered evidence, the evidence must "be truly new and not undiscovered
  merely through a lack of diligence."  State v. Sheppard, 155 Vt. 73, 75,
  582 A.2d 116, 118 (1990).  However expressed, defendant cannot meet this
  element.

       ¶  17.  The record shows that defendant was well aware of allegations
  that D.T. and K.T. had been subjected to physical and sexual abuse while
  living with their mother in Texas.  Defendant reported these allegations to
  DCF, and as the trial court found, he provided more detail about the
  alleged abuse than did D.T.  Defendant knew that the children would be
  interviewed at the Springfield DCF office in December 2002, and the State's
  evidence also showed that in February 2003, defendant told a DCF employee
  that he had requested a copy of D.T.'s statement from the Springfield
  detective.  The issue of prior abuse in Texas was also discussed at trial. 
  Given defendant's extensive knowledge of these topics, he clearly could
  have discovered the videotape through the exercise of due diligence. 

       ¶  18.  Irrespective of any other grounds, defendant's motion for a
  new trial was properly denied because the evidence that was not presented
  at trial was not newly discovered.

       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Ordinarily, the standard of review is abuse of discretion.  See State
  v. Palmer, 169 Vt. 639, 640, 740 A.2d 356, 358 (1999) (mem.).  In this
  case, however, the district court's decision is based on a legal ruling-the
  court's interpretation of the rape-shield act and its applicability to the
  evidence in question.  Further, we have adopted a rationale different from
  that of the district court.  Our holding is that it would have been an
  abuse of discretion to grant the new-trial motion in view of the fact that
  defendant knew of the evidence prior to trial.