State v. Carter

Annotate this Case
STATE_V_CARTER.94-412; 164 Vt 545; 674 A.2d 1258

[Filed 12-Jan-1996]

  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.

                                 No. 94-412

State of Vermont                                  Supreme Court

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

Bernard Carter                                    June Term, 1995

Walter M. Morris, Jr., J.

Jane Woodruff, Orleans County State's Attorney, Newport, for plaintiff-appellee

Norman R. Blais, Burlington, for defendant-appellant

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

       DOOLEY, J.   Defendant Bernard Carter appeals his conviction by jury
  of aggravated sexual assault, in violation of 13 V.S.A § 3253(a), raising
  three claims of error: (1) the trial court impermissibly excluded evidence
  that substantiated and explained his reasoning for leaving Vermont after he
  was charged with the crime; (2) the court erroneously allowed one of the
  State's witnesses to corroborate the victim's account of events through
  prior consistent statements; and (3) his Fifth Amendment rights under the
  United States Constitution were violated when the trial court allowed a
  state police officer to testify that defendant refused to discuss the
  charges with him.  We conclude that defendant's first two claims of error
  are valid, but because these errors were harmless beyond a reasonable
  doubt, we affirm.


       Defendant and the victim had separate apartments in the same complex
  in Newport, Vermont and were formerly romantically involved.  During the
  evening of October 24, 1992, defendant entered the victim's apartment and
  accused her of giving him a sexually transmitted


  disease.  Later that night, he entered the apartment again, accompanied by
  his nephew, and refused to leave.  According to the victim, defendant held
  a knife to her throat and threatened to forcibly rape her and to kill her. 
  Thereafter, according to the victim, he forcibly sexually assaulted her. 
  According to defendant, who also testified, he never threatened the victim,
  and they had consensual intercourse.

       Defendant was charged with aggravated sexual assault, unlawful
  mischief, and petty larceny.  He was eventually apprehended in Arizona in
  February 1993, and stood trial in May 1994.  Although he was acquitted of
  the unlawful mischief and petty larceny charges,(FN1) he was convicted of
  aggravated sexual assault.  The allegation on which he was found guilty
  specified that he sexually assaulted the victim, that at the time of the
  assault, he threatened to cause serious bodily harm to her, and that she
  reasonably believed he had the present ability to carry out the threat.(FN2)


       The first issue on appeal relates to the State's evidence that
  defendant fled the state to avoid prosecution.  The victim gave a statement
  to the police on October 26, 1992, and they went to defendant's apartment
  where he was seen running from the premises.  Along with his nephew and
  girlfriend, he traveled from state to state thereafter until he was finally
  apprehended in Arizona.  During his flight, defendant threatened to kill
  the victim and threatened to kill both his nephew and his girlfriend if
  they testified against him.


       The State called on both the nephew and the girlfriend to show
  defendant's flight.  The issue of an alternative explanation for the
  flight, consistent with innocence, first surfaced with the nephew, who
  wanted to testify that he fled in response to an inaccurate newspaper
  story. He offered a copy of the story, which said that both he and
  defendant had committed the crime, that they had used a knife to rape the
  victim, and that the maximum punishment faced was life imprisonment.  The
  court refused to allow the newspaper story to be introduced and also
  prohibited the nephew from describing it.

       The issue then arose with respect to defendant, who made a claim
  similar to that of the nephew.  When defense counsel asked defendant what
  he had heard about why the police were looking for him, the trial judge
  intervened and eventually ruled defendant could not testify to "any
  information gained from newspapers or the like" or make any statements
  about defendant's belief about the maximum punishment for the offense. 
  Defendant did testify that he understood the police were looking for him
  for a knife-point rape, that he did not commit such a rape, and that he
  fled out of fear.  On cross-examination, he testified that he learned about
  the charge from the newspaper, which had a front-page article with his
  picture and the statement that he and his nephew were wanted for a
  knife-point rape.

       We have held that the State may introduce evidence of flight by a
  criminal defendant to show consciousness of guilt.  At the same time, we
  have questioned the probative value of such evidence.  See State v.
  Pelican, 160 Vt. 536, 542, 632 A.2d 24, 28 (1993); State v. Giroux, 151 Vt.
  361, 366, 561 A.2d 403, 406 (1989); State v. Unwin, 139 Vt. 186, 193, 424 A.2d 251, 255 (1980).  Recently, in State v. Perrillo, ___Vt.___, ___, 649 A.2d 1031, 1034 (1994), we ruled that if evidence of flight is admitted
  "the defendant should in fairness be afforded the opportunity to explain
  why his absence was consistent with his innocence."  We reversed the
  conviction in Perillo because defendant was prohibited from showing his
  reason for leaving the state.  He testified that, although he had received
  a plea bargain offer that required no jail time,  he left the state to earn
  the money to hire a private lawyer, not to escape.  He wanted to testify to


  proposed plea agreement to show that he did not fear prosecution and he
  turned it down because he wanted to establish his innocence.  We held that
  the exclusion of the plea bargain evidence denied defendant the opportunity
  to refute the inference that his "flight" was motivated by consciousness of
  guilt.  Id. at ___, 649 A.2d  at 1034.

       We agree with defendant that the court's exclusionary ruling was error
  under Perillo. Apparently, the court was concerned about the jury being
  exposed to improper pretrial publicity and knowing the maximum punishment
  for the crime.  To the extent the information would prejudice defendant,
  however, he waived any objection by offering the newspaper headline and
  article.  To the extent it would prejudice the State, the prosecution
  necessarily accepted that prejudice by offering the flight evidence.  The
  alternative, if any, was to exclude the evidence of flight, not to prevent
  defendant from offering a plausible explanation for his actions.  It is
  inconsistent with our holding in Perrillo for the State to insist that
  evidence of flight be admitted and then to rely on other considerations,
  such as those contained in V.R.E. 403, to prevent defendant from providing
  a full explanation of his actions.


       Defendant next claims that the trial court erred by permitting the
  victim's sister's testimony as evidence of a prior consistent statement by
  the victim.  The victim disclosed the sexual assault to her sister, who was
  also her roommate, during the day following the assault. When asked how the
  victim described the attack, the sister responded, "She told me that he
  forced her to have sex with him.  She also said that he made her have sex
  with him."  When asked to describe other details of what happened, the
  sister testified, "She told me that he had her pushed against the wall,
  against the stove, had a knife to her throat.  Spit in her face. . . . You
  know, name calling, threatening her and her kids."  Defendant objected to
  this testimony because it was hearsay and was not authorized by the rule on
  prior consistent statements, V.R.E. 801(d)(1)(B).

       Hearsay is defined as an out-of-court statement offered in evidence to
  prove the truth of


  the matter asserted.  V.R.E. 801(c).  Hearsay has been traditionally
  rejected as substantive evidence because the declarant was not under oath
  and was not subject to cross-examination at the time the statement was
  made.  See generally 5 Wigmore on Evidence §§ 1362, 1367 (Chadbourn rev.
  1974).  Testimony regarding an out-of-court statement that is used not to
  prove the truth of the matter asserted, but is used instead to rebut an
  allegation of recent fabrication or improper motive or influence, is not
  hearsay.  V.R.E. 801(d)(1)(B).  When both the source of the statement is
  before the jury for scrutiny and the person who heard the prior consistent
  statement is in court to testify, the statement is as reliable as any other
  testimonial evidence, and is not regarded as hearsay.  See State v. Roy,
  140 Vt. 219, 227, 436 A.2d 1090, 1093 (1981); McCormick on Evidence § 251,
  at 604 (2d ed. 1972); Reporter's Notes, V.R.E. 801.

       The dispute over the admission of the prior consistent statement here
  involves timing. In State v. Roy, decided before the promulgation of the
  Vermont Rules of Evidence, we adopted the content of Federal Rule of
  Evidence 801(d)(1)(B), which is identical to V.R.E. 801(d)(1)(B). We held
  that the rule has three requirements:

       (1) the prior consistent statement corroborates the witness's in-
       court testimony; (2) the party offering the prior consistent
       statement establishes that the statement is being offered to rebut an
       express or implied charge against the witness of recent fabrication
       or improper influence or motive; and (3) the statement is shown to
       have been made prior to the time that the supposed motive to
       falsify arose.

  140 Vt. at 227, 436 A.2d  at 1094.  Defendant argues that the third element
  of Roy is not met because the motive to falsify was present from the

       The State answers by relying on State v. Robinson, 158 Vt. 286, 298,
  611 A.2d 852, 858 (1992), in which a similar argument was made with respect
  to a prior consistent statement made by a victim of child sexual abuse to a
  police officer.  Emphasizing that the trial court has discretion in
  determining whether to admit a prior consistent statement and that the
  child's motive to fabricate as claimed by the defendant was "highly
  speculative," we held it within the trial court's discretion to admit the
  evidence.  The State argues that timing is unimportant here


  because defendant claimed that the victim embellished the story over time,
  and as a result, admission was within the trial judge's discretion.

       The different results of Roy and Robinson reflect reliance on
  decisions from different circuit courts on an issue on which they were
  split.  Thus, the Second Circuit, the decision of which is relied upon in
  Roy, has required that the prior consistent statement be made before the
  declarant had a motive to fabricate the story.  See 4 J. Weinstein & M.
  Berger, Weinstein's Evidence  801(d)(1)(B)[01], at 801-196 (1995) (citing
  cases).  The Ninth Circuit, the decision of which is relied upon in
  Robinson, has not so required.  See id. at 801-197, 198.  The intra-
  circuit disagreement has now been resolved by the Supreme Court in Tome v.
  United States, 115 S. Ct. 696 (1995) in favor of the Second Circuit
  approach.  The holding of Tome is that Rule 801(d)(1)(B) "permits the
  introduction of a declarant's consistent out-of-court statements to rebut a
  charge of recent fabrication or improper influence or motive only when
  those statements were made before the charged recent fabrication or
  improper influence or motive."  Id. at 705.  In reaching its decision, the
  Court acknowledged that in some cases "it may be difficult to ascertain
  when a particular fabrication, influence or motive arose," but concluded
  that the timing could be determined.  Id.  The main reasoning of the Court
  was that "[a] consistent statement that predates the motive is a square
  rebuttal of the charge that the testimony was contrived as a consequence of
  that motive.  By contrast, prior consistent statements carry little
  rebuttal force when most other types of impeachment are involved."  Id. at
  701.  Based on the wording of the rule, we agree with the analysis in Tome.

       Even if there is a temporal requirement, the State argues that the
  trial court could find it was met because defense counsel argued to the
  jury that the victim's story changed over time. The defense theory, which
  was developed through cross-examination of the victim, was that her initial
  disclosures to the sister were incomplete and did not include the
  allegation that defendant had held a knife to her or forced her to have
  sex.  The sister's testimony, to which defendant objected, however,
  included the full disclosures the victim eventually made.  Thus, the prior


  consistent statement came after any claimed "recent fabrication."  There
  was no claim that the victim's motive changed after the statements were
  made to the sister; in fact, the defense claimed her motive to lie existed
  from the beginning.  Thus, we cannot hold that the timing element of Rule
  801(d)(1)(B) was met.  Admission of the prior consistent statement through
  the testimony of the sister was error.


       Defendant's third claim is that introduction of his failure to deny
  the crime to the police violated his self-incrimination right under the
  United States Constitution.  The issue arose with respect to the State's
  rebuttal witness, a police officer who testified that defendant called him
  a few days after the alleged assault.  During the telephone conversation,
  the officer asked defendant to tell his side of the story and defendant
  refused.  Although the trial court did let in this evidence, it instructed
  the jury that a citizen was not obligated to speak to a law enforcement
  officer and that claiming the right against self-incrimination should not
  be considered against the person.

       In this case, defendant was not under arrest when he refused to answer
  the question.  The United States Supreme Court has held that silence that
  precedes an arrest, or comes after an arrest but before Miranda warnings,
  can be introduced and commented upon to impeach defendant's testimony at
  trial.  See Fletcher v. Weir, 455 U.S. 603, 606-07 (1982); Jenkins v.
  Anderson, 447 U.S. 231, 239 (1980); see generally State v. Percy, 149 Vt.
  623, 628, 548 A.2d 408, 410 (1988).  Accordingly, there was no violation of
  defendant's federal self-incrimination right in allowing this impeachment


       Although we have concluded that the trial court erred by excluding
  rebuttal evidence to the State's evidence of defendant's flight and by
  admitting the victim's prior consistent statements, the State argues that
  these errors are not grounds for reversal of defendant's conviction because
  they were harmless.  This argument requires us to examine the standard for


  determining whether nonconstitutional errors are harmless in criminal
  cases, an issue that we have avoided in recent years.

       The basic premise that errors must have some relation to the outcome
  of a criminal case, or some independent right of the defendant, before
  appellate intervention is warranted is stated in both the criminal and
  evidence rules.  Both require that a substantial right of the party be
  affected by the error.  See V.R.Cr.P. 52(a); V.R.E. 103(a).  This brief and
  cryptic phrasing is, however, insufficient to establish a standard for
  appellate review.  It is the more modern equivalent of our often-stated
  proposition that where a defendant cannot show prejudice from an error, it
  is harmless.  See, e.g., State v. Oakes, 129 Vt. 241, 255-56, 276 A.2d 18,
  27 (1971).(FN3)  Because "[e]vidence tending to inculpate the defendant always
  carries with it some prejudice," State v. Kelley, ___Vt.___, 664 A.2d 708,
  711 (1995), this statement establishes only that some relationship between
  the error and the outcome, or a substantial right of defendant, is
  necessary, without defining the needed relationship.

       Our early decisions were clearer on the necessary relationship.  The
  issue is explored in some detail in State v. Meader, 54 Vt. 126, 130-32
  (1881), where the State put in evidence with the understanding it would
  later be tied to the defendant but failed to make that tie.  The State
  argued, in essence, that the evidence was harmless, but the Court rejected
  that argument using the following standard: "The question in all cases, is
  not whether the court, if trying the case, would disregard the obnoxious
  evidence, but whether the court is assured that the jury has done


  so."  Id. at 132.

       Up until the late 1960s, it was rare for this Court to affirm a
  criminal conviction by holding that an error was harmless.  Generally, it
  occurred in cases where there was no possibility that the error could have
  affected the conviction.  See, e.g., State v. Storrs, 105 Vt. 180, 186, 163 A. 560, 563 (1933) (error harmless where evidence excluded on hearsay
  ground is later testified to by person who made statement); State v. Roby,
  83 Vt. 121, 125, 74 A. 638, 639 (1909) (irrelevant evidence, improperly
  admitted, "was so entirely without significance" that error was harmless to
  defendant).  Some of the more recent cases purport to announce harmless
  error standards but they are not consistent and are difficult to reconcile.
  Compare State v. Hunt, 150 Vt. 483, 490, 555 A.2d 369, 374 (1988) (change
  of venue, if improper, was harmless error, even though it could have
  affected defendant's sentence, because his right to complete, fair and
  adequate trial was not jeopardized) and State v. Jacques, 150 Vt. 508, 511,
  554 A.2d 655, 656 (1987) (improper question was harmless error because it
  did not go to heart of close case, but instead there was overwhelming
  evidence of guilt) with State v. Catsam, 148 Vt. 366, 372, 534 A.2d 184,
  188 (1987) (improper expert testimony was not harmless because it could not
  be said beyond reasonable doubt that jury would have convicted defendant
  absent the error) and State v. Wright, 154 Vt. 512, 519-20, 581 A.2d 720,
  725 (1989) (error is harmless only if it is clear beyond reasonable doubt
  that jury would have convicted irrespective of the error; applied to error
  in charge to jury on lesser-included offense).  Most recently, in State v.
  Curavoo, 156 Vt. 72, 77, 587 A.2d 963, 966 (1991) and cases that follow it,
  we have noted the inconsistencies in our precedents and held the error
  involved was harmless under any standard.  See State v. Streich, ___Vt.___,
  ___, 658 A.2d 38, 49 (1995); State v. Weller, 162 Vt. 79, 84 n.*, 649 A.2d 839, 842 (1994).  In Curavoo, we stated that our "harmless-error rule
  appears [to be] in need of clarification."  156 Vt. at 76, 587 A.2d  at 966.

       Effectively, the issue of when a nonconstitutional error can be found
  harmless is an open one, on which we can start afresh.  We start with an
  examination of federal law because it


  provides the two most widely accepted alternatives.  The first, announced
  in Chapman v. California, 386 U.S. 18, 24 (1967), applies to constitutional
  errors and provides that such errors may be found harmless only if the
  appellate court can state "a belief that it was harmless beyond a
  reasonable doubt."  It was intended to be a restatement of the holding of
  Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963), that a constitutional error
  in admitting evidence could not be harmless if "there is a reasonable
  possibility that the evidence complained of might have contributed to the
  conviction."  It was also intended to adopt the common-law rule that the
  burden was placed on the beneficiary of the error to prove it was not
  harmful.  Chapman, 386 U.S.  at 24.

       The alternative is applicable to nonconstitutional errors and was
  first announced in Kotteakos v. United States, 328 U.S. 750 (1946).  The
  holding is in the following discussion:

        If, when all is said and done, the conviction is sure that the
        error did not influence the jury, or had but very slight effect, the
        verdict and the judgment should stand . . . .  But if one cannot
        say, with fair assurance, after pondering all that happened without
        stripping the erroneous action from the whole, that the judgment
        was not substantially swayed by the error, it is impossible to
        conclude that substantial rights were not affected.  The inquiry
        cannot be merely whether there was enough to support the result,
        apart from the phase affected by the error.  It is rather, even so,
        whether the error itself had substantial influence.  If so, or if one
        is left in grave doubt, the conviction cannot stand.

  Id. at 764-65 (citation omitted).  The inquiry under Kotteakos is whether
  the error substantially influenced the outcome or there is grave doubt that
  the outcome is free of substantial influence. See Bank of Nova Scotia v.
  United States, 487 U.S. 250, 256 (1988).

       Most states have adopted either the Kotteakos or Chapman standards, or
  variations on these standards.  In the New England states, for example, New
  Hampshire has adopted the Chapman test for nonconstitutional errors in
  criminal cases.  See State v. Vandebogart, 652 A.2d 671, 679 (N.H. 1994). 
  Massachusetts has adopted the Kotteakos standard.  See Commonwealth v.
  Flebotte, 630 N.E.2d 265, 268 (Mass. 1994).  Of the remaining states, the
  Rhode Island standard is similar to that in New Hampshire, see State v.
  Dinagen, 639 A.2d 1353, 1357 (R.I.


  1994) (nonconstitutional error is harmless if "`it is not reasonably
  possible that such evidence would influence an average jury on the ultimate
  issue of guilt or innocence'") (quoting State v. Bowden, 439 A.2d 263, 269
  (R.I. 1982)), and the Connecticut standard appears similar to that in
  Massachusetts, see State v. Sauris, 631 A.2d 238, 252 (Conn. 1993)
  (harmless error if defendant cannot show "`that it is more probable than
  not that the erroneous action of the court affected the result'") (quoting
  State v. Payne, 591 A.2d 1246, 1252 (Conn. 1991)).  The Maine standard
  appears to fall somewhere in between.  See State v. Shortsleeves, 580 A.2d 145, 148 (Me. 1990) (error is harmless "if it is highly probable that it
  did not affect the judgment").(FN4)

       For a number of reasons, we adopt the Chapman test for both
  constitutional and non-constitutional errors.  First, there is no logical
  reason to vary the standard based on whether the error has a constitutional
  or nonconstitutional source.  As the Maryland Court of Appeals observed in
  adopting the Chapman test:

          As we see it, there is no sound reason for drawing a
          distinction between the treatment of those errors which are of
          constitutional dimension and those other evidentiary, or
          procedural, errors which may have been committed during a trial.
          Although the Amendments to the United States Constitution are
          commonly considered a source of fair judicial procedure, other
          nonconstitutional evidentiary and procedural rules, signifying state
          policy with respect to judicial fairness, are often a defendant's
          primary source of protection.  An evidentiary or procedural error
          in a trial is bound, in some fashion, to affect the delicately
          balanced, decisional process.  The abnegation of a particular rule
          upon which the defense intended to rely may often inflict more
          damage than initially apparent; a meritorious line of defense may
          be abandoned as a result; an important witness may not be called;
          strategies are often forsaken.  The future course of the trial
          inevitably must be changed to accommodate the rulings made.  It
          is the impact of the erroneous ruling upon the defendant's trial and
          the effect it has upon the decisional process which is of primary


          concern, not whether the error is labelled as constitutional or

  Dorsey v. State, 350 A.2d 665, 677 (Md. 1976).  See Commonwealth v. Story,
  383 A.2d 155, 163 (Pa. 1978) (source of error is irrelevant in determining
  whether error is prejudicial to accused); Saltzburg, The Harm of Harmless
  Error, 59 Va. L. Rev. 988, 1025 (1973) ("[I]t is erroneous to say that
  constitutional errors are more likely to have an injurious effect at trial
  than other errors.").  Indeed, the effect of adopting different rules for
  constitutional and non-constitutional errors is to require us to engage in
  an unnecessary inquiry into whether the error is constitutionally based. 
  This inquiry is particularly required for evidentiary issues because they
  almost always have a constitutional dimension.  See State v. Cartee, 161
  Vt. 73, 77, 632 A.2d 1108, 1111 (1993) (limits on cross-examination imposed
  by trial court under V.R.E. 403 analyzed as confrontation clause issue, and
  Chapman standard used to determine whether error was harmless); State v.
  Lynds, 158 Vt. 37, 41-42, 605 A.2d 501, 503 (1991) (ruling that witness was
  unavailable so deposition could be admitted analyzed as confrontation
  clause issue to determine harmless error standard).  We note in this regard
  that the New England states that have adopted the Kotteakos standard for
  nonconstitutional errors have required the Chapman standard for state
  constitutional errors, further blurring the distinction.  See State v.
  Oquendo, 613 A.2d 1300, 1314 (Conn. 1992); Commonwealth v. Rios, 588 N.E.2d 6, 9 (Mass. 1992).

       Either of the errors present in this case is arguably constitutional. 
  We are reluctant to analyze them as such in light of our strong preference
  to resolve issues on nonconstitutional grounds where possible.  State v.
  Curtis, 157 Vt. 275, 277, 597 A.2d 770, 772 (1991).

       Second, the Chapman standard is most consistent with the standard of
  proof in criminal trials and thus accords the greatest deference to the
  jury as trier of fact.  As Professor Saltzburg points out, it makes "little
  sense to adopt . . . the standard, which is designed to prevent criminal
  convictions if there is even a reasonable doubt in the minds of the jurors
  as to the guilt of the person charged, and then on appeal to emasculate
  that evidentiary standard by allowing


  a conviction to stand when the trial court has violated evidentiary rules
  which might have influenced the jury by creating the requisite doubt." 
  Saltzburg, supra, at 992.

       Third, the Chapman standard is in wide use, and we have used it
  frequently.  The Supreme Court has developed factors to consider for its
  implementation.  See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986);
  Lynds, 158 Vt. at 42-44, 605 A.2d  at 503-04 (applying Van Arsdall factors). 
  Thus, we believe application of the Chapman standard will lead to the most
  predictable results in an area where appellate analysis is often criticized
  as result-oriented.  See, e.g., F. Allen, A Serendipitous Trek Through the
  Advance-Sheet Jungle: Criminal Justice in the Courts of Review, 70 Iowa L.
  Rev. 311, 332 (1985).

       Finally, we agree with the oft-repeated counsel that we must approach
  harmless error arguments cautiously.  See State v. Randolph, 462 A.2d 1011,
  1019 (Conn. 1983); Shortsleeves, 580 A.2d  at 148.  The Chapman standard is
  the most consistent with careful and prudent use of harmless error.

       Using the Chapman standard, we have no difficulty in concluding that
  the errors were harmless under that standard.  Although the exclusion of
  the newspaper article was wrong, defendant testified on cross-examination
  that he read a newspaper that had his picture and stated, "Two sought for
  knife-point rape."  He testified that he fled in response to this story. 
  Thus, the only impact upon defendant was that he was unable to show the
  actual newspaper story and its statement that the crime carried a maximum
  punishment of life imprisonment.

       Defendant emphasizes that the State offered extensive evidence of his
  flight, that the jury acquitted him of the lesser charges and believed only
  one of the State's sexual assault theories,(FN5) and that his sentence is
  long.  None of these points, however, go to the significance of the
  evidence actually excluded.  The excluded evidence could have improved the
  persuasiveness of defendant's explanation for his flight only marginally. 
  It did not address at all the State's


  evidence that defendant fled from his apartment to avoid arrest before he
  read any newspaper articles.  We can say beyond a reasonable doubt that
  introduction of the newspaper article would not have changed the outcome of
  defendant's trial.

       We have a similar reaction to the prior-consistent-statement evidence. 
  Defense counsel's opening statement to the jury stated that the victim told
  her sister she had been sexually assaulted by defendant.  Without
  objection, the State elicited this information from the victim.  In cross-
  examination, defense counsel asked in detail about the numerous
  conversations the victim had with her sister to show that she did not tell
  the sister the full story until the last conversation. Thus, the testimony
  of the sister simply confirmed what defense counsel had elicited from the
  victim, and we can say that admission of the sister's testimony that the
  victim did relate the events consistent with her testimony at trial was
  harmless beyond a reasonable doubt.

       Again, defendant argues that the overall case was close so that
  individual evidentiary items were important.  Our focus on the evidence in
  issue should not be taken as acceptance of this position.  Although
  defendant testified that he did not sexually assault the victim, the State
  offered extensive corroboration of the victim's version.  Her physical
  condition and demeanor, defendant's threats to his nephew and girlfriend as
  well as other statements he made, the defendant's destruction of the
  victim's shirt on which she testified he ejaculated after assaulting her,
  defendant's failure to deny the crime and his flight to avoid arrest even
  before he knew the charge, all supported the State's case.  Perhaps the
  strongest corroboration was defendant's own explanation of events.  He
  asked the jury to believe that the victim consented to sex immediately
  after a fight in which he spat upon her, pushed her, and called her
  offensive names.  According to defendant, the victim's only concern about
  having sex with him was whether he wore a condom.  Moreover, he testified
  that despite his anger because he thought he had contracted herpes from the
  victim, he nonetheless decided to have unprotected sex with her.

       We conclude that any errors were harmless beyond a reasonable doubt.


                              FOR THE COURT:

                              Associate Justice


FN1.  The unlawful mischief charge was that defendant broke the front
  door of the victim's apartment when he slammed it shut to prevent her from
  escaping.  The petty larceny charge was that defendant took eight to ten
  dollars from a drawer in the victim's kitchen while he was looking for a

FN2.  The jury was presented with three alternative ways in which
  defendant was alleged to have committed the crime of aggravated sexual
  assault.  The jury chose this method and did not reach the lesser-included
  offense of sexual assault.

FN3.  Oakes is an example of the common, but often imprecise, use of
  the term "prejudice." A number of the issues in this multi-issue murder
  case were decided based on a lack of showing of prejudice.  For some, the
  presence or absence of prejudice appears to go to whether there was error
  at all.  See 129 Vt. at 254, 276 A.2d  at 26 (prosecutor's comments during
  voir dire and opening statement not error because no showing of prejudice
  to defendant); id. at 255, 276 A.2d  at 27 (photographs shown to the jury
  not "prejudicial as a matter of law").  For others, it goes to whether any
  error is harmless.  See id. at 256, 276 A.2d  at 27 (since objection to
  improper question was sustained, ruling is not prejudicial); id. at 259,
  276 A.2d  at 29 (no errors in charge were "so prejudicial as to require

FN4.  The Maine standard is apparently derived from the recommendation
  of Justice Traynor of the California Supreme Court.  See R. Traynor, The
  Riddle of Harmless Error 34-35 (1970). Although viewed as a restatement of
  the Kotteakos standard, this standard is likely to produce results similar
  to those from the Chapman standard.  See Comment, Harmful Use of Harmless
  Error in Criminal Cases, 64 Cornell L. Rev. 538, 550 (1979).

FN5.  This point gains defendant nothing because the theories were
  presented as alternatives.

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