State v. Heath

ENTRY_ORDER.92-126; 162 Vt. 618; 649 A.2d 243


[Filed:  11-Aug-1994]

NOTICE:  This opinion is subject ot 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.


                                 No. 92-126


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Orleans Circuit

 Stephen J. Heath                             October Term, 1993


 Walter M. Morris, Jr., J.

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

 Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
   Montpelier, for defendant-appellant


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


              In the above entitled cause the Clerk will enter:

      Defendant, Stephen Heath, was convicted of sexual assault, 13 V.S.A. {
 3252(a)(1)(A), and appeals from the denial of his motion to suppress and his
 motion for a new trial.  We reverse and remand.

      The assault occurred after the victim left a bar in Newport and was
 sitting along the shore of Lake Memphremagog.  Her attackers pulled her to
 the ground and one penetrated her vagina with his penis.  The assault was
 discontinued because of an approaching vehicle.  After showering at the home
 of a friend, the victim reported the assault to the police.  An examination
 of the victim was done at North Country Hospital.  Bodily fluids and hair
 samples were taken for laboratory analysis.  Also taken were the clothes she
 was wearing at the time of the assault.  Examination of the victim's
 underpants turned up an unidentified foreign hair sample.  The victim later
 identified defendant as her assailant.

      Because the State believed that physical evidence would help in
 building its case against defendant, the State sought and obtained a
 nontestimonial identification order for defendant to produce samples of
 bodily fluids and hair.  The samples were produced on November 4, 1990.  The
 analysis of the bodily fluids by the state lab was inconclusive, as was the
 DNA analysis by the Federal Bureau of Investigation (FBI).

      The analysis of the hair sample from the victim's clothing was on a
 different track.  It, along with hair samples from defendant, was sent to
 the FBI in January 1991.  Despite a series of discovery motions by
 defendant, the FBI analysis was not provided to defendant by the date of
 trial, June 26, 1991.  Consequently, defendant filed a new motion to compel
 production of the analysis on the eve of trial and a motion for continuance
 based in part on nondisclosure of the FBI analysis.  The court failed to
 rule on the motion to compel and denied the motion for continuance.

      At trial, defendant argued that the victim misidentified him as the
 assailant.  The jury rejected this theory and returned a guilty verdict on

 

 June 27, 1991.  After the trial was concluded, an FBI lab report, dated June
 24, 1991, was received and provided to defendant.  The report concluded that
 the defendant's hair samples did not match the hair found in the victim's
 underpants.

      Defendant filed a motion for a new trial based on the State's failure
 to provide the FBI report.  Analyzing defendant's claim for a new trial as
 based on newly discovered evidence, the trial court held that defendant
 failed to sustain his burden of showing that the FBI hair analysis probably
 would have changed the result of the trial.  On appeal, defendant argues
 that he need not make such a showing under the circumstances.  We agree.

      Criminal Rule 33 authorizes the grant of a new trial "if required in
 the interests of justice."  The standard is intentionally broad so that the
 courts can ensure that trials are fair without necessarily having to pigeon-
 hole the grounds into narrow and specific findings of error.  See United
 States v. Narciso, 446 F. Supp. 252, 304 (E.D. Mich. 1977) (wording of rule
 "mandate[s] the broadest inquiry into the nature of the challenged
 proceeding"); State v. Talbot, 408 So. 2d 861, 887 (La. 1980) (in ruling on
 new trial motion, court is not confronted with "narrow, merely technical,
 question").  Thus, the court can grant a new trial when it "has any doubt
 about the fairness or impartiality of a trial."  Sterling v. State, 791 S.W.2d 274, 276 (Tex. Ct. App. 1990).  Grant of a new trial can be warranted
 by the cumulative effect of numerous concerns, no one of which can be
 characterized as reversible error, when the court is convinced that a
 miscarriage of justice ensued.  See Collins v. State, 423 So. 2d 516, 518
 (Fla. Dist. Ct. App. 1982).

      The normal remedy for failure of the State to meet a discovery
 obligation is a continuance until defendant can receive the discovered
 material and prepare a case in response to it.  See V.R.Cr.P. 16.2(g)(1).
 This Court has long held that a criminal defendant "is entitled to a
 reasonable opportunity to procure and present the witnesses necessary to his
 defense including a postponement of his trial if need be."  State v.
 Maguire, 100 Vt. 476, 480, 138 A. 741, 743 (1927).   Failure to provide a
 continuance when the State fails to fulfill a discovery obligation is
 reversible error if defendant demonstrates resulting prejudice.  See State
 v. Evans, 134 Vt. 189, 192, 353 A.2d 363, 365 (1976).  The FBI laboratory
 analysis is exactly the kind of evidence needed to prepare a proper case.
 See State v. Stroud, 459 N.W.2d 332, 335 (Minn. Ct. App. 1990) (reversible
 error to deny prosecution continuance to obtain FBI DNA analysis when
 victim unable to give more than general description of her attacker); Lomax
 v. Commonwealth, 319 S.E.2d 763, 764-66 (Va. 1984) (when state produced
 critical lab report at trial, defendant entitled to continuance to
 investigate and evaluate evidence).

      Defendant was prejudiced by the denial of the continuance.  The
 evidence was relevant and exculpatory.  Defendant's theory that another
 person committed the assault was supported by the fact that the unidentified
 hair sample from the victim's underpants did not match the sample given by
 defendant.  Only a short delay was necessary to secure the lab analysis.

 

      Although the trial court has discretion in determining whether to grant
 a continuance and a new trial, there was no exercise of discretion in this
 case.  The trial court failed to respond to the motion to compel and ignored
 the absence of important evidence, denying the motion to continue only
 because a trial date had been set.  A new trial is required in the interests
 of justice.

      Defendant has also argued on appeal that a statement given by him at
 the police station should have been suppressed because he was given no
 opportunity to consult with an adult as required by In re E.T.C., 141 Vt.
 375, 379, 449 A.2d 937, 940 (1982).  The issue was not preserved below, and
 we do not consider it.  See State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330,
 333 (1987).

      Reversed and remanded.


--------------------------------------------------------------------------------
                                 Dissenting


      ALLEN, C.J., dissenting.   The majority faults the trial court for
 analyzing defendant's claim for a new trial as based on newly discovered
 evidence.  This, however, is precisely the claim that defendant made to the
 trial court.  The motion for a new trial was not, as suggested by the
 majority, based on the failure to provide the FBI report.  This ground was
 not even mentioned in the supporting memorandum or in argument on the
 motion.
      At argument on the motion, defendant conceded that the prosecution did
 not have the FBI report, and went on to argue that the results of the hair
 testing should be subjected to the analysis for newly discovered evidence
 mandated by State v. Miller, 151 Vt. 337, 560 A.2d 376 (1989).  The court
 examined the claim under the new evidence standard.  Defendant cannot
 complain on appeal of action that he requested the court to take.  State v.
 Grenier, 158 Vt. 153, 157, 605 A.2d 853, 856 (1992).
      The majority also concludes that defendant was prejudiced by the
 denial of the continuance.  The request for a continuance came in a letter
 requesting a two-week delay in the start of the trial because of the death
 of the father of defense counsel's investigator.  The letter also stated
 that the defense was awaiting discovery, but was prepared to proceed to
 trial in two weeks and did not condition this willingness upon the receipt
 of the discovery.  The motion was denied by a judge other than the trial
 judge.  At the argument on the new trial motion, defense counsel stated that
 the trial judge strongly implied that he wanted to proceed to trial, to
 which the defense attorney responded, "Fine."  Defense counsel also said
 that, at the time, he might have preferred not to proceed with the trial,
 but he also admitted that he had not argued strenuously for a continuance.
 By responding that it was "Fine" to proceed to trial, defendant abandoned
 the earlier request for continuance, which was not based on the ground now
 asserted.
      The majority opinion also states that there was a failure on the part
 of the State to meet a discovery obligation.  Defendant was seeking the
 results of the FBI testing requested by the State.  He did not ask for

 

 independent testing or a delay to have that done.  The prosecution was
 obligated to provide such results if "within the prosecuting attorney's
 possession, custody or control."  V.R.Cr.P. 16(a)(2)(C).  Under the
 circumstances of this case, the discovery obligation of the prosecutor did
 not arise until the test result was received.  Unlike the majority opinion,
 the record makes clear that the prosecution had not received the FBI report
 prior to the conclusion of the trial.  Also, defense counsel stressed in the
 new trial hearing that he did not believe that the prosecution should be
 held accountable for the reporting delay, or that defendant was the victim
 of any prosecutorial misfeasance.
      The majority's assertion that only a short delay was needed to secure
 the lab analysis is pure hindsight.  A State chemist had called the FBI one
 week before trial to inquire about the testing, and was informed that
 testing had not begun.  There was no failure to comply with the discovery
 obligation and the trial court was not required to grant a continuance on a
 ground that defendant had not suggested.
      I also fail to see how defendant was prejudiced by the court's denial
 of the motion to continue.  In cross-examination of the investigating
 officer, defendant established that evidence was sent to the FBI, and that
 if any such evidence tended to tie defendant into the case, the officer
 would know about it.  The obvious inference from the State's failure to
 present FBI test results linking defendant to the case is that such
 inculpatory evidence did not exist.  Defendant argues that the test results
 showing no match would have exculpated him.  But considering that a hair
 sample was taken from the victim of a brief sexual assault after she had
 showered, changed her clothes and gone to bed, the FBI report would not have
 altered the inference of guilt that the jury already had derived from other
 substantial evidence, including the victim's eyewitness identification.
 Thus, the FBI report would not have changed the result and defendant was not
 prejudiced.
      I would affirm.
                                     BY THE COURT:


 Dissenting:
                                     Ernest W. Gibson III, Associate Justice


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


                                     James L. Morse, Associate Justice
 [ ]  Publish

 [ ]  Do Not Publish                 Denise R. Johnson, Associate Justice