State v. Palmer

State v. Palmer (98-415); 169 Vt. 639; 740 A.2d 356

[Filed 24-Aug-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-415

                               MAY TERM, 1999


State of Vermont	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	District Court of Vermont,
	                               }	Unit No. 2, Chittenden Circuit
Shelley D. Palmer	               }
	                               }	DOCKET NO. 4632-9-97Cncr


             In the above-entitled cause, the Clerk will enter:


       Defendant Shelley Palmer appeals from a conviction entered in the
  Chittenden District  Court on a charge of simple assault in violation of 13
  V.S.A. § 1023(a)(3) (attempting by  physical menace to put another in fear
  of imminent serious bodily injury).  His contentions on  appeal are that
  the trial court improperly denied him an opportunity to depose the
  complaining  witness, that he should have been granted a new trial when
  certain information came to light  about this witness and that the trial
  court committed reversible error by admitting evidence of an  association
  between defendant, who is a bail bondsman, and a person defendant
  characterizes as  a notorious murder suspect.  We affirm the conviction.

       The case concerns an incident that took place at defendant's home in
  Williston on the  evening of August 11, 1997.  It is undisputed that on
  that occasion defendant drew a gun in the  presence of Robert Gero, who had
  posted bond with defendant in the amount of $6,000 to secure  the release
  of Gero's nephew.  Also undisputed is that the nephew had fled the
  jurisdiction,  leaving Gero potentially liable for the sum posted.  The
  incident giving rise to this case occurred  when Gero went to defendant's
  house to provide evidence that his nephew had been arrested in  Florida. 
  At trial, the disputed issues were whether defendant actually pointed the
  gun at Gero  and whether defendant had the requisite wrongful intent to
  sustain an assault conviction.  When  the case went before the jury, it was
  essentially defendant's word against Gero's on these two  issues.

       During the pretrial phase of the proceedings, defendant moved pursuant
  to V.R.Cr.P. 15  to take Gero's deposition.  Defendant also moved to
  dismiss the proceeding under V.R.Cr.P.  12(d) for lack of a prima facie
  case.  The court convened a hearing on November 24, 1997, and  indicated on
  the record that it was taking up the dismissal motion.  Defense counsel
  raised the  issue of the deposition request, indicating that Gero had
  refused to speak with defendant's  attorney.  The prosecutor responded that
  the proceeding was an unexceptional assault case that  could be "tried in
  half an hour," and that the State did not "see setting aside an hour to do 
  depositions of Mr. Gero."  The prosecutor then advised the court that
  "[w]e're here to go ahead  on the 12(d) motion today."  The court
  responded: "All right.  This is what we're going to do.   We'll do a 12(d)
  motion.  I'll have you call Mr. Gero.  We'll do it all right now. . . . . 
  That  will give you the opportunity to hear his testimony so call Mr.
  Gero."  Gero was then examined  under oath, first by the State and then by
  the defense.  At the conclusion of the hearing the court 

 

  denied the dismissal motion and scheduled a trial date.

       Defendant argues that the court either failed to rule on the
  deposition request or  improperly denied it.  We believe that it is clear
  that the court intended to rule on the deposition  request.  Its ruling can
  be characterized either as a denial or a grant of a deposition in open
  court  as part of the Rule 12(d) hearing.  Although we have significant
  doubt that there was an adverse  decision we can review, we will assume for
  purposes of this decision that the deposition request  was denied.

       Defendant could take a deposition in this misdemeanor case only "after
  approval of the  court for good cause shown."  V.R.Cr.P. 15(e)(4).  One of
  the factors the court must consider is  the "other opportunities available
  to the defendant to discover the information sought by the  deposition." 
  Id.  The trial court has discretion in ruling on defendant's request to
  depose the  victim.  Thus, defendant must show that the trial court abused
  its discretion -- that is, that the  decision was untenable or clearly
  unreasonable.  See State v. Sims, 158 Vt. 173, 186, 608 A.2d 1149, 1156
  (1992).  Moreover, to prevail on appeal, defendant must also show prejudice
  from  the ruling.  See State v. Streich, 163 Vt. 331, 349, 658 A.2d 38, 51
  (1995) (concerning  discovery provisions in V.R.Cr.P. 16); State v. Olds,
  141 Vt. 21, 28-29, 443 A.2d 443, 447  (1982) (applying prejudice standard
  to trial court's refusal to permit defendant to copy sealed  deposition).

       We find neither error nor prejudice.  Defendant's justification for
  the deposition was that  the victim refused to talk with defense counsel. 
  Responding to this justification, the court gave  defense counsel access to
  the victim through examination at the Rule 12(d)(2) hearing.   Defendant
  raised none of the objections that he now raises on appeal -- that is, the
  hearing cross-examination was too limited, and defense counsel did not
  have an adequate opportunity to  prepare.  See Streich, 163 Vt. at 350, 658 A.2d  at 51 (no error in refusing to exclude evidence  where only concern
  raised by defendant was cured by trial court).  We see no abuse of
  discretion  in requiring the victim to testify at the Rule 12(d)(2) hearing
  in lieu of a deposition.

       Defendant's argument on prejudice is equally unpersuasive.  He argues
  that in a deposition  he would have routinely inquired about the victim's
  employment history, and when he followed  up with employers and co-workers
  on the victim's credibility, he would have discovered the  critical
  impeachment evidence that the victim had tried to defraud an employer. 
  Where  defendant made no effort to describe the scope of the proposed
  deposition to the trial court, we  will not speculate on how thorough the
  deposition and follow-up investigation might have been.   All defendant can
  show is there might have been prejudice; we do not think this is enough.

       Defendant next contends that the district court should have granted
  his motion for a new  trial under V.R.Cr.P. 33 based on his discovery that
  the victim had engaged in fraudulent  conduct in connection with an alleged
  workplace injury.  It appears that a former co-employee of  the victim read
  a newspaper article about the trial in this case and came forward with an
  affidavit  charging that the victim had faked an accident to sue his
  employer and had offered the affiant ten  percent of the recovery if the
  affiant testified favorably on the victim's behalf.  We have  established a
  stringent five-part test for granting a V.R.Cr.P. 33 motion based on newly 
  discovered evidence.  See In re Hamlin, 155 Vt. 98, 101, 582 A.2d 129,
  130-31 (1990).  Under  this test, not only must the evidence be such that
  it "would probably change the result upon  retrial," but it cannot be
  "merely cumulative or impeaching" and it must be evidence that "could  not
  have been discovered earlier by the exercise of due diligence."  Id.  We
  review for abuse of  discretion.  See id. at 100, 582 A.2d  at 131.  The
  evidence at issue here is strictly of the  impeachment variety.  The trial
  court acted well within its discretion in denying defendant's 

 

  motion.

       Finally, defendant asks us to vacate his conviction based on his
  testimony, on cross-examination by the State, that he had received
  assistance in constructing the back porch of his  home from one Herman Yoh,
  who had been recently charged in the Chittenden District Court  with first
  degree murder in connection with the death of his wife.  The State offered
  this  testimony -- and similar testimony that defendant had on several
  occasions used former clients to  do work at his house -- to rebut
  defendant's contention that he did not typically have contact with 
  dangerous individuals at his home despite his profession.  The trial
  transcript reflects that when  Yoh's name first came up in defendant's
  testimony, defense counsel requested a bench  conference at which he
  complained that the State was improperly "trying to get the jury whipped 
  up" over defendant's "habit of dealing with dangerous people."  The
  prosecutor specifically  indicated that he would not ask defendant, in the
  hearing of the jury, whether Yoh was facing a  murder charge.

       We need not address the State's contention that defendant failed to
  preserve his claim of  error in these circumstances.  Even assuming it had
  been preserved, defendant's contention that  the proffered evidence was
  irrelevant is without merit.  The State was plainly entitled to rebut 
  defendant's contention that he was not accustomed to receiving dangerous
  individuals at his  home.  The only other basis for excluding the evidence
  is V.R.E. 403, which permits relevant  evidence to be withheld from the
  jury if its probative value is substantially outweighed by the  danger of
  unfair prejudice.  We review for abuse of discretion, see State v. Fuller,
  ___ Vt. ___,  ___, 721 A.2d 475, 481 (1998), and find none in these
  circumstances.


       Affirmed.	
  





	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice