State v. Wheel

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-326

                            FEBRUARY TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Rutland Circuit
                                  }
Jane Wheel                        }
                                  }          DOCKET NO. 1663-12-87Rcr


             In the above entitled cause the Clerk will enter:


     Defendant, who was convicted of three counts of false swearing and
whose conviction was affirmed in this Court, State v. Wheel, ___ Vt. ___,
587 A.2d 933 (1990), appeals from the district court's refusal to allow her
to conduct a post-trial deposition.  The proposed deponent is the counsel
for the Judicial Conduct Board.  Defendant seeks to use his deposition in
support of a future motion for a new trial based on newly discovered
evidence that the State's investigation into defendant's activities was
nothing more than a perjury trap.  According to defendant, the deposition
would yield evidence tending to show that the State conducted inquests for
the stated purpose of investigating defendant's filing of false pay vouchers
when, in fact, the State had concluded that it would be unable to prosecute
defendant on such charges because of this Court's expansive definition of
"official duties."  The district court granted the State's motion to strike
the notice of deposition, concluding that defendant failed to show that the
deposition testimony would lead to new evidence that would satisfy the
criteria for a new trial.

     Defendant's main argument here is that the threshold she was required
to meet to obtain the deposition was too high.  We need not reach that
argument because defendant was not entitled to any deposition at this stage
of the proceedings.  The only authorization for depositions in criminal
proceedings is contained in V.R.Cr.P. 15.  Rule 15 is found in Part IV of
the rules establishing procedures for "Arraignment and Preparation for
Trial."  It does not authorize post-trial depositions.  Our liberal
discovery rules end at conviction, where the interests of the State and
defendant become markedly different and the need for finality is great.  As
the California Supreme Court recently held, "[t]he trial court lacked
jurisdiction to order 'free-floating' post-judgment discovery when no
criminal proceeding was then pending before it."  People v. Gonzalez, 51 Cal. 3d 1179, ___, 800 P.2d 1159, 1203, 275 Cal. Rptr. 729, 733 (1990).

     We do not foreclose the possibility that a trial court could order
discovery in an exceptional case after a motion for a new trial has been
filed and the court has determined that the motion has sufficient merit to
warrant an evidentiary hearing.  See Hopkinson v. Shillinger, 866 F.2d 1185,
1220-21 (10th Cir. 1989); United States v. Wolfson, 413 F.2d 804, 808 (2d
Cir. 1969).  Even if defendant had filed a new trial motion here, her
showing would fall short of that required to obtain a new trial on grounds
of newly-discovered evidence.  See State v. Miller, 151 Vt. 337, 338, 560 A.2d 376, 377 (1989).  In light of the affidavit of the proposed deponent,
defendant has not made a showing that this evidence is newly discovered or
that it had any liklihood of changing the result of defendant's trial.  We
see nothing that would undercut the resolution of the perjury trap issue in
defendant's first appeal.  See State v. Wheel, ___ Vt. at ___ n.5, 587 A.2d 
at 939 n.5.

     Affirmed.





                                   BY THE COURT:




                                   John A. Dooley, Associate Justice


[X]  Publish                       John P. Meaker, Superior Judge,
                                   Specially Assigned

[ ]  Do Not Publish
                                   Dean Pineles, District Judge,
                                   Specially Assigned


                                   Albert W. Barney, Chief Justice (Ret.),
                                   Specially Assigned


                                   Lewis Springer, District Judge (Ret.),
                                   Specially Assigned