State v. Wilkinson
Annotate this Case
State v. Wilkinson (2003-363); 178 Vt. 174; 879 A.2d 445
2005 VT 46
[Filed 08-Apr-2005]
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.
2005 VT 46
No. 2003-363
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit
Ricky N. Wilkinson October Term, 2004
David T. Suntag, J.
William D. Wright, Bennington County State's Attorney, and Brian K.
Marthage, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and
Allen, C.J. (Ret.), Specially Assigned
¶ 1. REIBER, J. Defendant appeals from a conviction of
first-degree aggravated domestic assault. Defendant contends that the
trial court violated his Sixth Amendment right to confront the victim, a
convicted perjurer, and his due process rights by barring the victim's
testimony at trial and by admitting into evidence an excited utterance the
victim made after the assault. We affirm.
I.
¶ 2. The State charged defendant with first-degree aggravated
domestic assault for pointing a gun at and threatening to kill his
step-son, Tom. See 13 V.S.A. § 1043(a)(2) (criminalizing the use or
attempted use of a deadly weapon against a family or household member). The
charge arose from events that took place at defendant's home while he was
intoxicated. Defendant and his wife had an argument that escalated to the
point where defendant threatened to kill the family dog. Someone present
in the home at the time called the police, and defendant fled. The police
arrived and eventually took defendant's wife to the police station so that
she could give a statement. When the wife returned home, she saw Tom and a
friend outside. The friend warned her that defendant had a gun. At some
point, Tom and defendant's daughter went inside the home and found
defendant with a gun, yelling, "[s]omebody's going to die today."
Defendant pointed the gun at Tom. The police were summoned again and
arrived shortly thereafter.
¶ 3. Before trial, the State informed the court that Tom had been
convicted of perjury, and therefore he was incompetent to testify pursuant
to 13 V.S.A. § 2907, which provides that "[t]he oath of a person convicted
of perjury . . . shall not be received in a proceeding in court." The
State intended to introduce Tom's statements about the events through
defendant's cousin. Tom visited defendant's cousin after defendant
threatened him. Tom apparently told the cousin that: (1) he was afraid;
(2) defendant had pulled a gun on him; (3) he had never been so scared in
his whole life; and (4) he thought defendant was going to kill him.
Defendant's counsel objected to the State's proffer and argued that
admitting Tom's hearsay statements would violate defendant's Sixth
Amendment right to confront his accuser. The trial court concluded that §
2907 precluded Tom from testifying in court and deferred ruling on the
admission of Tom's statements as the trial proceeded.
¶ 4. Ultimately, the trial court determined that Tom's statement
to defendant's cousin was admissible as an excited utterance. The court
concluded that an excited utterance falls within a firmly rooted hearsay
exception, and therefore the admission of Tom's statement did not violate
defendant's constitutional right to confront his accuser. At the
conclusion of the evidence, the jury found defendant guilty of aggravated
domestic assault, and the court sentenced him to a prison term of ten to
fifteen years. Defendant appealed.
II.
¶ 5. On appeal, defendant argues that admitting Tom's excited
utterance violated his Sixth Amendment right to confront his accuser.
Defendant also argues that the court should have excluded Tom's statement
because convicted perjurers are barred by 13 V.S.A. § 2907 from testifying
in court. Finally, defendant argues that he was deprived of his right to
present a defense. We address each claim in turn.
¶ 6. The Confrontation Clause states that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him." U.S. Const. amend. VI. After the trial
court's decision in this case, the United States Supreme Court decided
Crawford v. Washington, which held that "[w]here testimonial evidence is at
issue . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination." 541 U.S. 36, 68 (2004) (emphasis added). If a statement offered against a defendant
is not testimonial, its admission does not violate the Confrontation
Clause; rather, state evidentiary rules govern the admissibility of these
statements. Id. The statement at issue in Crawford was a recorded
statement that the defendant's wife made during a police interrogation.
Defendant had no opportunity to cross-examine his wife during the
interrogation. Due to the marital privilege, the wife could not testify
against defendant and was therefore unavailable at trial. The Supreme
Court concluded that admitting the wife's recorded statement violated the
Confrontation Clause because the statement-elicited by police
interrogation-was testimonial and the defendant had no opportunity to
cross-examine the wife. Id. at 68. Thus, defendant's Confrontation Clause
claim here turns on whether Tom's statement to defendant's cousin was
testimonial.
¶ 7. Defendant argues that Tom's statement was testimonial because
by the time Tom made the statement, the police were investigating the
incident at defendant's house. Thus, defendant contends, Tom knew that the
police would want to get a statement from him and that the prosecution
would use what he said at trial. We conclude that Tom's statement to
defendant's cousin was not testimonial and that no constitutional violation
occurred by admitting the statement into evidence.
¶ 8. The Crawford Court explained that testimony is "typically '[a]
solemn declaration or affirmation made for the purpose of establishing or
proving some fact.' " Id. at 51 (quoting 1 N. Webster, An American
Dictionary of the English Language (1828)). The Court declined to define
"testimonial" comprehensively, id. at 68, but it provided examples fitting
the above definition: prior testimony at a preliminary hearing; pretrial
statements that a declarant would reasonably expect to be used by the
prosecution; "extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or
confessions;" and "statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial." Id. at 51-52 (quotations and
citations omitted). These practices, the Court explained, bear the
"closest kinship to the abuses at which the Confrontation Clause was
directed." Id. at 68. And, the Court recognized, "[a]n accuser who makes
a formal statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not." Id. at 51.
¶ 9. Recent case law from other jurisdictions further defines what
statements are "testimonial." In United States v. Saget, the Second
Circuit Court of Appeals held that a statement made to a confidential
informant, whose status was unknown to the declarant, was not testimonial
under Crawford. 377 F.3d 223, 229 (2d Cir. 2004). The court reasoned that
the statement was not made in the context of a formal interrogation or
other structured environment, and the declarant had no knowledge that the
informant was an agent of law enforcement officials. Id. at 228. Other
examples of nontestimonial statements include a domestic assault victim's
call to a 911 operator, People v. Moscat, 777 N.Y.S.2d 875, 880 (N.Y. Crim.
Ct. 2004), and a child's excited utterance to her mother following a sexual
assault, In re Doe, 103 P.3d 967, 972 (Idaho Ct. App. 2004). In contrast,
a plea allocution is considered testimonial because the defendant is under
oath and the statement is given formally in court and in response to
questioning by the court or the prosecutor. United States v. McClain, 377 F.3d 219, 221 (2d Cir. 2004).
¶ 10. In the present case, Tom's excited utterance to defendant's
cousin shortly after defendant threatened to kill him was not testimonial.
In contrast to the wife's statement in Crawford, the statement at issue in
this case was not given to the police and did not occur during the course
of the police investigation. The statement was made to an individual who
had no relationship to the prosecution. Additionally, no police were
present at the cousin's home, Tom was not under oath, his statement was not
a product of the adversarial process, and no one was examining Tom for the
purpose of collecting information. Tom's statement, like the
nontestimonial statement in Saget, was not made in the context of a formal
interrogation or other structured environment. Rather, as the trial court
found, Tom was excitedly expressing his fear to a friend. We therefore
conclude that Tom's hearsay statement to defendant's cousin was not
testimonial and the Confrontation Clause did not bar its admission against
defendant.
¶ 11. Defendant next argues that Tom's excited utterance, while
admissible under V.R.E. 803(2) as a hearsay exception, is barred by 13
V.S.A. § 2907. Defendant contends that § 2907 prohibits the court from
admitting Tom's excited utterance because Tom is a convicted perjurer and
thus legally incompetent to testify in court. Defendant asserts that the
Legislature did not intend to permit a convicted perjurer's statements,
otherwise barred by § 2907, to come in under a hearsay exception.
¶ 12. Section 2907 states: "The oath of a person convicted of
perjury . . . shall not be received in a proceeding in court." The statute
prevents a court from accepting a convicted perjurer's oath, and thereby
excludes any sworn testimony by the perjurer-whether made in court or not.
Under the facts here, Tom, a convicted perjurer, did not make his statement
under oath. Therefore, § 2907 does not bar the statement's admission. (FN1)
¶ 13. Our conclusion comports with the purposes behind § 2907
and the excited utterance hearsay exception. To qualify as an excited
utterance under V.R.E. 803(2), the statement must "relat[e] to a startling
event or condition," and be "made while the declarant was under the stress
of excitement caused by the event or condition." Excited utterances are
admissible because, by definition, the declarant had no time to fabricate
her story at the time she made the statement rendering the statement
sufficiently reliable. Reporter's Notes, V.R.E. 803; In re Estate of
Peters, 171 Vt. 381, 391, 765 A.2d 468, 476 (2000). Thus, the inherent
trustworthiness of Tom's excited utterance made the statement admissible;
the fact that he had previously perjured himself under oath is irrelevant.
¶ 14. Finally, defendant claims that the court denied him his Sixth
Amendment right to present a defense. Defendant failed to raise this issue
at trial and thus we review for plain error. V.R.Cr.P 52(b). Plain error
exists only in exceptional circumstances where a failure to recognize the
error would result in a miscarriage of justice, or where the error is so
grave and serious that it strikes at the very heart of the defendant's
constitutional rights. In re Carter, 2004 VT 21, ¶ 21, 176 Vt. 322, 848 A.2d 281.
¶ 15. The Sixth Amendment right to present a defense includes the
right of the defendant to offer the testimony of witnesses, to compel their
attendance, and to present the defendant's version of the facts.
Washington v. Texas, 388 U.S. 14, 19 (1967). Defendant contends that the
Sixth Amendment gave him the right to present Tom as a witness so that
defendant could challenge the truth and circumstances of his statement and
present defendant's version of the facts. Defendant recognizes, however,
that 13 V.S.A. § 2907 prevented Tom from taking an oath and precluded him
from testifying in court. But defendant contends that "the statute . . .
did not . . . create this dilemma, its implementation in this case has."
¶ 16. Defendant relies on Washington to support his claim of error
but that case is inapposite. In Washington, the United States Supreme
Court considered the validity of a state statute that allowed convicted
coparticipants to testify for the prosecution, but prohibited them from
testifying for the defense. 388 U.S. at 17. The Court concluded that the
defendant's right to compulsory process had been violated because he had
arbitrarily been denied the right to "put on the stand a witness who was
physically and mentally capable of testifying." Id. at 23; see also id. at
24 ("This is . . . a case in which the State has recognized as relevant and
competent the testimony of this type of witness but has arbitrarily barred
its use by the defendant.") (Harlan, J., concurring). In contrast to
Washington, the statute at issue in this case does not arbitrarily prevent
defendant from calling the victim to testify-the victim cannot testify for
either party. See id. at 24 (citing Vermont's perjury statute, and
implying that such statutes, which disqualify convicted perjurers from
appearing as witnesses "across-the-board," are not arbitrary because they
are based on "general experience with a particular class of persons")
(Harlan, J., concurring). Defendant maintains that his right to compulsory
process was nonetheless violated because the State was able to elicit the
victim's testimony through its hearsay witness. As previously discussed,
however, the victim's hearsay testimony was properly admitted. Defendant's
attempt to draw an analogy to Washington fails. Defendant does not argue
that 13 V.S.A. § 2907 is unconstitutional, or raise any other claim under
the Sixth Amendment, therefore, no plain error appears.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Under 12 V.S.A. § 1608, a person is incompetent as a witness in any
court if convicted of perjury. In the present case, defendant was not a
witness in the court proceeding, but rather the court admitted his excited
utterance through a competent witness. Thus, § 1608 does not bar the
admission of Tom's excited utterance and we held above that the
Confrontation Clause does not prohibit the admission of the out-of-court
statement.
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State v. Wilkinson (2003-363)
2005 VT 46
[Filed 01-Jun-2005
ENTRY ORDER
2005 VT 46
SUPREME COURT DOCKET NO. 2003-363
MAY TERM, 2005
State of Vermont } APPEALED FROM:
}
} District Court of Vermont,
v. } Unit No. II, Bennington Circuit
}
Ricky N. Wilkinson }
} DOCKET NO. 1475-11-01 Bncr
In the above-entitled cause, the Clerk will enter:
Upon consideration of appellant's motion for reargument, the opinion
issued by this Court in this matter on April 8, 2005 is modified as
follows:
Paragraph 16 is deleted, and replaced by the following paragraph:
¶ 16. Defendant relies on Washington to support his claim of
error but that case is inapposite. In Washington, the United
States Supreme Court considered the validity of a state statute
that allowed convicted coparticipants to testify for the
prosecution, but prohibited them from testifying for the defense.
388 U.S. at 17. The Court concluded that the defendant's right to
compulsory process had been violated because he had arbitrarily
been denied the right to "put on the stand a witness who was
physically and mentally capable of testifying." Id. at 23; see
also id. at 24 ("This is . . . a case in which the State has
recognized as relevant and competent the testimony of this type of
witness but has arbitrarily barred its use by the defendant.")
(Harlan, J., concurring). In contrast to Washington, the statute
at issue in this case does not arbitrarily prevent defendant from
calling the victim to testify-the victim cannot testify for either
party. See id. at 24 (citing Vermont's perjury statute, and
implying that such statutes, which disqualify convicted perjurers
from appearing as witnesses "across-the-board," are not arbitrary
because they are based on "general experience with a particular
class of persons") (Harlan, J., concurring). Defendant maintains
that his right to compulsory process was nonetheless violated
because the State was able to elicit the victim's testimony
through its hearsay witness. As previously discussed, however,
the victim's hearsay testimony was properly admitted. Defendant's
attempt to draw an analogy to Washington fails. Defendant does
not argue that 13 V.S.A. § 2907 is unconstitutional, or raise any
other claim under the Sixth Amendment, therefore, no plain error
appears.
In all other respects, the motion for reargument fails to meet the
criteria set forth in V.R.A.P. 40 and it is denied.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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