State v. Findlay

State v. Findlay (99-222); 171 Vt. 594; 765 A.2d 483 

[Filed 31-Oct-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-222

                              MARCH TERM, 2000


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 1, Windham Circuit
                                       }
Ian Findlay	                       }	DOCKET NO. 1121-7-97 Wmcr

                                                Trial Judge: Paul F. Hudson


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


       Defendant Ian Findlay appeals from his conviction for the sale of
  marijuana.  He alleges that the  court erred in (1) limiting the scope of
  cross-examination of a witness, (2) admitting a photograph into  evidence
  and identification testimony based on that photograph, (3) denying his
  request for jury  instructions on nullification, and (4) denying his motion
  for acquittal based on insufficiency of the  evidence.  We reverse and
  remand for a new trial.

       The Brattleboro police arranged a drug buy between defendant and an
  informant, Paul Roy, that  took place on the evening of November 21, 1995.
  (FN1)   Detective Michael Peterson searched Roy,  provided him with $130,
  and transported him to the parking lot of a local shopping center.  From
  this  point, Roy walked toward an adjacent parking lot.  Although Peterson
  lost sight of Roy, Lieutenant Steven  Rowell took up observation and
  watched Roy enter a second parking lot and witnessed a tan car pull into 
  that lot and park near a telephone booth.  Roy entered the car and, after a
  couple of minutes, exited and  made his way back to Peterson.  As the car
  left the parking lot, Rowell followed it to where it stopped at a  nearby
  convenience store.  When the driver stepped out of the vehicle, Rowell
  observed the driver's face.   Meanwhile, Roy returned to Peterson and gave
  him a bag of marijuana that he had allegedly purchased  from defendant. 
  Peterson again searched Roy and found no money or other contraband.



       After returning to the police station, Peterson showed Rowell a
  photograph of defendant that  appeared in a 1992 high school yearbook. 
  Rowell positively identified the person in the picture as the  driver of
  the tan car.  He based his identification on characteristics such as nose,
  ears and hair cut.  With  information and evidence gathered from this
  November 21 buy, the State charged defendant with selling  marijuana in
  violation of 18 V.S.A. § 4230(b)(2).  The State did not call informant Roy
  as a witness;  instead, the prosecution based its case mainly on testimony
  provided by Detective Peterson.  Defendant  was convicted and sentenced to
  three to twenty-four months incarceration, all suspended.

                                     I.

       Defendant argues that the trial court committed reversible error by
  limiting the scope of his  cross-examination of Detective Peterson.  Prior
  to trial, the court excluded, on the State's motion, all  evidence
  regarding other unsuccessful controlled buys involving Roy and arranged by
  Peterson,  including evidence that (1) during a November 8, 1995 sting
  using Roy to buy drugs from defendant,  Roy absconded with $300 in buy
  money; (2) after the police arrested Roy for stealing the buy money, Roy 
  agreed to cooperate and, on November 21, 1995, again tried to purchase
  drugs from defendant; and (3)  after a third sting targeting defendant, on
  May 28, 1996, Roy produced what he claimed to be LSD  purchased from
  defendant in exchange for buy money provided by the police, but the alleged
  contraband  was later determined not to be LSD. (FN2)  Defendant had sought
  to introduce the evidence to  demonstrate that Roy had a motive to "set up"
  the defendant and that Roy had the ability and know-how to manipulate
  controlled-buy situations. 

       In excluding the evidence, the court noted that it would have been
  relevant to Roy's credibility,  were he to testify, but that the evidence
  was not probative of the control under which the November  21 buy took
  place.  Furthermore, the court determined that "the integrity or lack of
  integrity of the  Brattleboro Police Department's procedure for working
  with undercover informants is essentially not  probative at this point and
  is a waste of the time of the court and the jury."  It concluded that
  generally  calling into question the control that the police exercised over
  Roy in controlled-buy situations would be a  distracting issue to the jury.

       Under the Sixth Amendment to the United States Constitution and
  Chapter I, Article 10 of the  Vermont Constitution, a "defendant has a
  right to present exculpatory evidence to aid his defense and to  confront
  witnesses brought against him," where the evidence is relevant and
  admissible under the rules of  evidence.  State v. Corliss, 168 Vt. 333,
  337, 721 A.2d 438, 441 (1998).  This right is not absolute, and  evidence
  may be excluded when it is irrelevant, see V.R.E. 402, or when its
  probative value is  substantially outweighed by its potential for confusing
  the issues, misleading the jury, or unfairly  prejudicing the State's case,
  see V.R.E. 403.  The trial court's resolution of evidentiary issues is 
  discretionary, and we will not reverse them absent an abuse of discretion. 
  See Corliss, 168 Vt. at 337,  721 A.2d  at 442; State v. Cartee, 161 Vt. 73,
  75, 632 A.2d 1108, 1110 

 

  (1993).  As we noted in Cartee, however, a trial court's discretion may be
  limited by constitutional  protections afforded a defendant.  161 Vt. at
  76, 632 A.2d  at 1111. 

       In Cartee, where defendant was accused of sexually assaulting a
  sixteen-year-old boy, we held that  the trial court erred in restricting
  defendant's cross-examination of the complainant.  The court in that case 
  did not allow defendant to inquire about the possibility that complainant
  was motivated to fabricate the  charges in order to protect his stepfather,
  who had been implicated by defendant in committing insurance  fraud.  The
  court reasoned that defendant's offer of proof was mere speculation and,
  even if there existed  some probative value in the evidence contained in
  the offer, it was outweighed by the countervailing  factors enumerated in
  V.R.E. 403.  We reversed, finding that, in light of defendant's right to
  confrontation,  the court both abused its discretion and committed
  reversible error because the complainant's testimony  played a critical
  role in the State's case and his credibility was a "pivotal issue bearing
  on defendant's  guilt."  Cartee, 161 Vt. at 77, 632 A.2d  at 1111.

       Here, similar to the situation in Cartee, Roy's role as an informant
  in the November 21 transaction  and the control the police exercised over
  Roy in the transaction, as elicited through Peterson's testimony,  were
  pivotal factors bearing on defendant's guilt.  Thus, rather than being
  simply a distracting issue, the  overall picture of Roy's relationship with
  the police, the circumstances surrounding his cooperation, and  the facts
  relevant to his role as an informant were highly probative of the integrity
  of the November 21  buy.  Without evidence of Roy's actions in drug
  purchases both prior to and after November 21, the jury  was left without
  the benefit of a reasonably complete understanding of the November 21
  operation as  presented by Peterson; thus, cross-examination was
  significantly undermined. 

       The error was not harmless.  Because Roy himself did not testify at
  trial, the State's case was based  solely on the following circumstantial
  evidence: prior to the transaction, Roy was searched and Peterson  found no
  contraband; Roy was then given money; he entered a car driven by an
  individual identified by  Officer Rowell as defendant; Roy exited the car
  and returned to Peterson; he then gave a bag to Peterson  containing what
  was later identified as marijuana; Peterson again searched Roy and found no
  money.  The  strength of the inference to be drawn from this evidence,
  i.e., that Roy exchanged the money for  marijuana while in the automobile,
  is dependent on the degree to which the transaction and Roy's  activities
  in the course of it were controlled by the police.

       If the court had allowed defendant to cross-examine Peterson about
  Roy's manipulation or potential  manipulation of other buys, he may have
  created a reasonable doubt in the minds of the jury about the  November 21
  transaction that, in turn, might reasonably have resulted in his acquittal. 
  The State concedes  that Peterson lost sight of Roy momentarily during the
  November 21 buy.  Assuming that it can be shown  by admissible evidence,
  Roy's deftness and apparent willingness to manipulate his relationship with 
  defendant for monetary gain coupled with the less-than-airtight supervision
  of the November 21 operation  leave room to doubt that Roy did in fact
  purchase marijuana from defendant on that date.  Therefore, the  court
  erred in excluding this evidence and defendant is 

 

  entitled to a new trial.  We address defendant's remaining claims because
  the issues raised may recur on  remand. 

                                     II.

       Defendant next contends that the court erred in allowing into evidence
  both Rowell's pretrial  identification of him and the yearbook photograph
  upon which that identification was made.  He argues  that the pretrial
  identification was impermissibly suggestive, thus violating his right to
  due process, and  that the State failed to lay a proper foundation for
  admission of the photograph.  We disagree.

       On the same night as the November 21 operation, Peterson showed Rowell
  a high school yearbook  and pointed to defendant's photograph.  Rowell then
  positively identified defendant as the driver of the tan  car into which
  Roy had entered.  The suggestiveness of this single photograph
  identification is obvious.   See State v. Smith, 140 Vt. 247, 253, 437 A.2d 1093, 1095 (1981) ("The practice of one-to-one showups  'has been widely
  condemned.'") (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)); State
  v. Kasper,  137 Vt. 184, 192, 404 A.2d 85, 90 (1979) (suggestiveness of
  including two photographs of defendant in  photo array was patent).  A
  suggestive pretrial identification procedure, however, does not necessarily 
  violate a defendant's right to due process.  See id. at 192, 404 A.2d  at
  90.  The admission of identification  testimony predicated upon a
  "'suggestive and unnecessary identification procedure does not violate due 
  process so long as the identification possesses sufficient aspects of
  reliability.'"  State v. Baxter, 145 Vt.  295, 297, 487 A.2d 163, 164
  (1984) (quoting Manson v. Brathwaite, 432 U.S. 98, 106 (1977)).  
  Reliability is determined by looking at five factors: (1) the opportunity
  the witness had to view the  defendant at the time of the crime, (2) the
  degree of attention paid to the witness, (3) the accuracy of the 
  description, (4) the level of certainty demonstrated at the time of the
  show-up, and (5) the time elapsed  between the crime and the show-up.  See
  id. (quoting Manson, 432 U.S. at 114).

       We find Rowell's identification sufficiently reliable.  First, Rowell
  had an opportunity to witness  defendant as he exited his car after
  stopping at the convenience store, and had a clear look at his face.  
  Second, Rowell is a trained police officer who knew that he would be
  identifying defendant; therefore, it  is assumed that he paid a high degree
  of attention to defendant.  In Manson, the Court recognized that a  trained
  police officer "could be expected to pay scrupulous attention to detail"
  when observing a suspect.   432 U.S.  at 115.  Other courts have weighed
  this prong in favor of reliability when the identification was  made by a
  police officer.  See, e.g., United States v. Williams, 999 F. Supp. 412,
  415 (W.D.N.Y. 1998),  aff'd United States v. Lumpkin, 192 F.3d 280 (2d Cir.
  1999); State v. Smith, 516 S.E.2d 902, 906 (N.C.  Ct. App. 1999); State v.
  Abdo, 518 N.W.2d 223, 226 (S.D. 1994).  Third, Rowell testified to the high 
  level of certainty with which he made the identification, explaining that
  the body characteristics such as  nose, ears, and hair cut of the person
  depicted in the photograph matched those of the driver of the tan car. 
  Finally, Rowell made the identification within hours of the November 21
  buy, it having occurred on the  same evening of the operation.  Under these
  circumstances, although Rowell's pretrial identification of  defendant was
  based on a suggestive procedure, we find the identification sufficiently
  reliable.  Cf. 

 

  Neil v. Biggers, 409 U.S. 188, 200-01 (1972) (permitting eyewitness
  testimony where initial identification  occurred seven months after crime
  and was prompted by suggestive pretrial showup); State v. Savo, 141  Vt.
  203, 212-13, 446 A.2d 786, 791 (1982) (permitting in-court identification
  by victim of robbery where  pretrial identification occurred two days after
  crime); Kasper, 137 Vt. at 192-93, 404 A.2d  at 90-91  (permitting
  eyewitness testimony preceded by suggestive and unnecessary pretrial
  identification of robber,  who had worn nylon stocking mask, that occurred
  more than one month after robbery).

       The court, moreover, did not abuse its discretion in admitting the
  yearbook photograph.  The  admissibility of photographic evidence is
  largely a matter of discretion for the trial court.  See State v.  Colby,
  139 Vt. 475, 478, 431 A.2d 462, 464 (1981).  "The test of admissibility is
  that the photographs . . .  are a fair and accurate representation of their
  subject." State v. Howe, 136 Vt. 53, 66, 386 A.2d 1125,  1132 (1978).

       Here, the court admitted a photograph printed in a 1992 Brattleboro
  Union High School yearbook,  under which defendant's name appeared. 
  Peterson testified that he had observed defendant prior to the  November 21
  buy, knew who he was, and had the ability to recognize him.  Peterson,
  furthermore,  testified that the yearbook photograph was a fair and
  accurate depiction of defendant.  In light of these  circumstances, and
  without any countervailing testimony that the photograph is not one of
  defendant nor  an accurate depiction of him, we find that the photograph
  was properly authenticated and that the court  did not abuse its discretion
  by admitting it.  Cf. id. at 66, 386 A.2d  at 1132 (transparency of victim's
  body  made from film shot by state pathologist properly admitted into
  evidence where pathologist testified that  transparency was accurate
  representation of its subject and there was no countervailing testimony);
  State  v. Acker, No. L-89-238, 1990 WL 152141, at *2 (Ohio Ct. App. Oct.
  12, 1990) (yearbook photograph of  defendant properly authenticated and
  admitted into evidence where defendant's mother testified that  photograph
  "was a picture of [defendant]").

                                    III.

       Next, defendant contends that the court erred in failing to instruct
  the jury, as he requested, on its  inherent right to acquit or nullify. 
  Defendant recognizes, nevertheless, that juries do not have the power  to
  decide questions of law in Vermont.  See State v. Burpee, 65 Vt. 1, 25 A. 964 (1891) (overruling State  v. Croteau, 23 Vt. 14 (1849)).  In Burpee, we
  acknowledged that:

    [J]urors cannot be called to account for their verdict.  This,
    however, is far  from saying that it is their legal province to
    override the law laid down by the  court, and to declare it for
    themselves.

         We think such a rule contrary to the fundamental maxims of
    the  common law, and to adjudged cases in England and the uniform
    practice of its  highest courts.

 

  Burpee, 65 Vt. at 16, 25 A.  at 968.  This is the perspective shared by
  every federal jurisdiction and by  almost every state jurisdiction.  See N.
  Mader, The Interplay of Race and False Claims of Jury  Nullification, 32 U.
  Mich. J. L. Reform 285, 310 n.116 (1999).  As a result, the common view is
  that  courts "refuse[] to instruct the jury of its right to decide
  questions of law; in other words, the right to  acquit against the weight
  of the evidence."  D. Brody, Sparf and Dougherty Revisited: Why the Court 
  Should Instruct the Jury of Its Nullification Right, 33 Am. Crim. L. Rev.
  89, 102 (1995).  Defendant  offers no persuasive basis for rejecting the
  majority rule, and we decline to do so.

                                     IV.

       Finally, defendant seeks acquittal for lack of sufficient evidence to
  support his conviction.  He  highlights the fact that the officers never
  witnessed him exchange marijuana for money with Roy.  The  State's
  evidence, argues defendant, merely gives rise to a suspicion of guilt that
  is dependent upon  conjecture, which is insufficient to sustain his
  conviction.

       "The standard of review for denial of a V.R.Cr.P. 29 motion for
  judgment of acquittal is whether  the evidence, when viewed in the light
  most favorable to the State and excluding any modifying evidence,  fairly
  and reasonably tends to convince a reasonable trier of fact that the
  defendant is guilty beyond a  reasonable doubt."  State v. Delisle, 162 Vt.
  293, 307, 648 A.2d 632, 641 (1994) (internal quotation marks  and
  alterations omitted).  While it is true that evidence leaving a
  determination of guilt wholly dependent  upon conjecture is insufficient,
  circumstantial evidence may serve as proof of guilt beyond a reasonable 
  doubt.  See State v. Durenleau, 163 Vt. 8, 12, 652 A.2d 981, 983 (1994). 
  Here, we find that the State's  circumstantial evidence may fairly convince
  a reasonable trier of fact that defendant sold marijuana.   Whether the
  jury will in fact be so convinced in defendant's second trial remains to be
  seen.

 

  Reversed and remanded for a new trial.



                                       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



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                                  Footnotes


FN1.  Although there was no explanation as to how or why Roy became an
  informant initially,  the police obtained Roy's cooperation for this
  particular drug purchase in return for the State's  promise not to
  prosecute him for stealing money with which he had been entrusted for a
  previous  drug buy.

FN2.  The court also excluded testimony from another witness that Roy had
  manipulated the  May 28 buy in order to obtain money to pay his rent. 
  Defendant does not appeal that ruling.