State v. Veach

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90-568

                             MARCH TERM, 1991

State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Bennington Circuit
                                  }
Ronald Veach                      }          DOCKET NO. 770-771-5-90Bcr


             In the above entitled cause the Clerk will enter:

     Defendant appeals from a conviction, after a jury trial, of careless
and negligent operation (23 V.S.A. { 1091(a)) and leaving the scene of an
accident (23 V.S.A. { 1128).  We affirm.

     The central issue on appeal is the identity of defendant.  The accident
occurred at night, and the driver of the other car was "blindsided" and
could not identify the driver.  There were several occupants in the suspect
vehicle, and the State relies on the testimony of an eyewitness who was at
the gas station where the events occurred and who identified defendant as
someone she "recognized as seeing him before, but not knowing his name."
Asked about the lighting conditions, the witness stated that "[t]here was
[sic] a lot of lights over the pumps."  The witness was familiar with the
usual parking place of the suspect vehicle and later went to that spot and
obtained a license plate number, which she related to the accident victim
and to a police officer.

     The police officer testified that he ran a license check of Department
of Motor Vehicle records on the vehicle, but defendant raised hearsay
objections to his testimony about ownership of the car according to the
records.  The trial court overruled the hearsay objection, and the officer
testified that defendant was a co-owner of the suspect car.  Following a
guilty verdict on both charges, defendant filed post-trial motions based on
the court's hearsay ruling.  The motions were denied, and the present appeal
followed.

     We agree with defendant that the officer's testimony about relating the
information he obtained from Department of Motor Vehicle records was hearsay
as a "statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter
asserted."  V.R.E. 801(c).  The State was able to demonstrate that defendant
was a co-owner of the car, which fact was relevant to the issue of operation
of the vehicle, though clearly not conclusive.  The trial court erred in
concluding that the testimony was admissible as a public record or report
under V.R.E. 803(6), as there was no attempt to comply with the authen-
tication requirements for such admission.  See Cullimore v. Barnett Bank of
Jacksonville, 386 So. 2d 894, 895 (Fla. App. 1980) (business records
exception for license tag check through police dispatcher inapplicable
because no records or reports offered into evidence).

     However, the error was not significant.  Defendant was identified by an
eyewitness who knew the area where defendant lived and had "seen the car
around that area quite a bit."  She had also seen defendant "five or six"
times and was familiar with his identity.  She testified that she had an
opportunity to see the driver of the car when it passed her at the accident
scene and that there was adequate lighting to do so.  The eyewitness located
the suspect car after the accident without aid of state records.  She made a
positive in-court identification which did not depend in any way on estab-
lishing his ownership of the vehicle, which she identified as having two
neon colored bumper stickers bearing religious inscriptions.   And other
evidence further cemented the identity of the suspect car by relating the
damage to the victim's car to corresponding damage to the suspect car.

     Defendant's effort at trial was solely directed at attempting to shake
the eyewitness' credibility and reliability.  At no point did either the
State or defendant raise the question of who had title to the car.  In its
summation, the State argued that "[t]he State would submit that [the Motor
Vehicle records evidence] is good corroborating evidence as to which car was
involved, the defendant's car."

     It is clear that the jury would have returned a verdict of guilty,
regardless of the error by the trial court in admitting the officer's testi-
mony about the Motor Vehicle records.  See V.R.E. 103(a) (erroneous evident-
iary ruling that does not affect substantial right of a party is harmless
error);  V.R.Cr.P. 52(a) ("Any error, defect, irregularity or variance which
does not affect substantial rights shall be disregarded.")  See State v.
Hunt, 150 Vt. 483, 494, 555 A.2d 369, 376 (1988) (admission of gun into
evidence, even if error, was harmless, as confession included references to
and detailed descriptions of gun).

     Affirmed.



                                     BY THE COURT:

Dissenting:
                                     Frederic W. Allen, Chief Justice
John A. Dooley, Associate Justice

Denise R. Johnson, Associate Justice
                                     Ernest W. Gibson III, Associate Justice


                                     James L. Morse, Associate Justice

         [ ]  Publish

         [ ]  Do Not Publish


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                                     Dissenting


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, 111 State Street, Montpelier,
Vermont 05602 of any errors in order that corrections may be made
before this opinion goes to press.


                                No. 90-568


State of Vermont                             Supreme Court

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

Ronald Veach                                 March Term, 1991


Paul F. Hudson, J.

Matthew E.C. Pifer, Bennington County Deputy State's Attorney, Bennington,
  for plaintiff-appellee

David A. Howard, Bennington County Public Defender, Bennington, for
  defendant-appellant


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


     DOOLEY, J., dissenting.   Over objection, the State in this case had a
police officer testify that motor vehicle records showed that the hit-and-
run vehicle was co-owned by defendant.  The officer went on to testify that
the other owner, whom he named, looks nothing like defendant.  Following the
State's case, defendant made a motion to acquit stating that the State
failed to prove the identity of the hit-and-run driver.  The court denied
the motion but commented "On the matter of identity, the evidence is thin."
     As the majority notes, the prosecutor argued that the DMV report that
defendant owned the vehicle was "good corroborating evidence" of identifi-
cation.  Defendant's argument was that the eyewitness's identification was
unreliable because of major differences between her testimony and her
original report to the police.  Once the eyewitness testimony is dis-
counted, he argued "it is not enough that his name is on some registration
with someone else. . . ."
     Defendant raised the evidence issue again in his new trial motion.  The
court denied it because it found the evidence to be admissible.
     The trial judge and the prosecutor were present at this trial; we were
not.  The prosecutor put in the evidence over objection and argued from it.
The trial judge found that even with the DMV evidence the identification
evidence was thin.  It is a misuse of the harmless error doctrine for this
Court to come around using 20/20 hindsight from a cold, appellate record and
say no "substantial right" of defendant is affected.  Only by substituting
this Court for the jury can you reach the result of the majority in this
case.
     I am authorized to state that Justice Johnson joins in this dissent.





                                        Associate Justice