State v. Franklin
Annotate this Case
State v. Franklin (2003-280); 179 Vt. 521; 883 A.2d 783
2005 VT 90
[Filed 02-Aug-2005]
[Motion for Reargument Denied 06-Sep-2005]
ENTRY ORDER
2005 VT 90
SUPREME COURT DOCKET NO. 2003-280
NOVEMBER TERM, 2004
State of Vermont } APPEALED FROM:
}
} District Court of Vermont,
v. } Unit No. 3, Essex Circuit
}
Lynda L. Franklin }
} DOCKET NO. 46-4-02 ExCr
Trial Judge: M. Kathleen Manley
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant, Lynda Franklin, was convicted of perjury pursuant
to 13 V.S.A. § 2901 based on her testimony given during a prior prosecution
for driving while intoxicated (DWI), that she had not operated a vehicle
while she was intoxicated. Defendant appeals, and we affirm.
¶ 2. Defendant and Garth Ely were living together when police
responded to Ely's telephone call informing police that defendant was drunk
and had driven a vehicle while intoxicated. That day, Ely gave a statement
to the police that defendant drove a truck to her parent's house. Three
criminal proceedings arose out of this one incident. First, the State
charged defendant with DWI. During the DWI trial, the State asked
defendant if she had operated the vehicle on that day. She answered, "No I
did not. I didn't operate it." Contrary to statements he gave earlier, Ely
testified during defendant's DWI trial that defendant had not operated the
vehicle.
¶ 3. Second, Ely was charged with and convicted of perjury based
on the statement he made during defendant's DWI trial. This charge
resulted from an investigation of a domestic assault complaint made by
defendant against Ely. During the investigation, a police officer
videotaped Ely making a statement concerning the facts surrounding the DWI
charge against defendant. Ely's statement conflicted with his testimony at
defendant's DWI trial, and resulted in his conviction.
¶ 4. Third, the State charged defendant with perjury, and she was
convicted. Defendant appeals her perjury conviction, which was based on
her testimony during the DWI prosecution where she denied operating a
vehicle.
¶ 5. Defendant argues on appeal that: (1) it was plain error to
admit Ely's in-court testimony, Ely's videotaped statement, and Ely's
perjury conviction; (2) without Ely's testimony, insufficient evidence
existed to convict defendant of perjury; and (3) the court committed
reversible error when it did not rule on defendant's motion for judgment of
acquittal at the close of the State's case.
¶ 6. At trial, defendant failed to object to the admission of
Ely's testimony. As a result, we review for plain error only. Plain
error occurs when there is glaring error so grave that it strikes at the
very heart of defendant's constitutional rights or it affects the fair
administration of justice. State v. Oscarson, 2004 VT 4, ¶ 27, 176 Vt.
176, 845 A.2d 337; State v. Ladabouche, 146 Vt. 279, 281, 502 A.2d 852, 854
(1985). To reverse for plain error, we must find not only that the error
seriously affected defendant's substantial rights, but also that it had an
unfair prejudicial impact on the jury's deliberations. Oscarson, 2004 VT
4, ¶ 27; State v. Mears, 170 Vt. 336, 341, 749 A.2d 600, 604-05 (2000).
¶ 7. In the present perjury case against defendant for lying under
oath during her DWI trial, the State introduced Ely's perjury conviction,
Ely's in-court testimony regarding defendant's operation of the vehicle,
and Ely's statements given during a videotaped interview with a police
officer.
¶ 8. The trial court properly admitted Ely's perjury conviction of
February 25, 2002. Section 2907 of Title 13 prohibits a court from
receiving "[t]he oath of a person convicted of perjury . . . in a
proceeding in court." Contrary to defendant's argument, § 2907 does not
require exclusion of evidence of a perjury conviction because its admission
does not depend upon the perjurer's oath.
¶ 9. The trial court erred, however, by admitting Ely's in-court
testimony because earlier, Ely had been convicted of perjury for statements
he made during defendant's DWI trial. He was, therefore, not a competent
witness under § 2907. He was also incompetent to testify pursuant to 12
V.S.A. § 1608, which states that a person convicted of perjury is
incompetent to testify in court. Consequently, the court was not permitted
to accept his oath. (FN1) Even though this testimony added context for the
perjury conviction, the Information and Criminal Charge Disposition Report
filed against Ely and admitted into evidence, reflects that Ely lied under
oath at defendant's DWI trial. Thus, the perjury conviction is relevant
without Ely's testimony.
¶ 10. We conclude that defendant was not unfairly prejudiced by the
admission of Ely's testimony because the record reveals that, on balance,
Ely's live testimony actually supported the defense and not the
prosecution. Moreover, even if the videotaped statement was inadmissible,
we conclude that the admissible evidence supported defendant's conviction.
We, therefore, find no glaring error requiring reversal under our plain
error review.
¶ 11. During trial, the State called Ely to testify, but his
testimony largely supported defendant's claim that she did not lie when she
denied driving while intoxicated. First, Ely repeatedly testified that
defendant did not drive the truck. He testified that he lied when he told
the police that defendant had driven the truck, and testified that
defendant never started the truck. Ely also testified that he lied when he
gave the statement to police on the day of the incident because he was
upset, and he "shouldn't have said she drove the truck," but that a police
officer "told [him] to write that down" in his written statement. He
further explained that he "was pissed off," and he was "trying to get back
at her," when he lied to the police during the domestic assault
investigation. We therefore conclude that Ely's testimony during
defendant's perjury trial benefitted defendant.
¶ 12. Defendant contends that "[w]ithout [Ely's] testimony . . .
the evidence was necessarily insufficient to sustain a conviction for
perjury." We disagree. In a prosecution for perjury, previous
inconsistent statements given by the defendant standing alone are not
sufficient to support a perjury conviction. But a defendant's conflicting
statements are competent evidence of perjury if corroborated by the
testimony of other witnesses. State v. Woolley, 109 Vt. 53, 57, 62, 192 A. 1, 3-5 (1937) ("[T]he testimony of one . . . witness, corroborated by the
testimony of another or by circumstances, is sufficient, if thereby the
crime is proved beyond a reasonable doubt."); State v. Tonzola, 159 Vt.
491, 497-98, 621 A.2d 243, 246 (1993) (relying on Woolley). We have
further explained that: " '[T]he independent corroborating evidence must be
equal in weight to the testimony of another witness, and it must be, by
itself, inconsistent with the innocence of the defendant.' " Tonzola, 159
Vt. at 497-98, 621 A.2d at 246 (quoting People v. Fueston, 717 P.2d 978,
980 (Colo. Ct. App. 1985)). " 'Each witness or piece of corroborating
evidence, [however], need not independently prove false every aspect of the
allegedly perjured testimony.' " Id.
¶ 13. In the present case, independent evidence tending to
corroborate the State's case was introduced to prove, beyond a reasonable
doubt, that defendant committed perjury; thus, no plain error occurred.
Defendant gave a number of inconsistent statements. Defendant's previous
inconsistent statements were offered and properly admitted as competent
evidence supporting the perjury charge. See Woolley, 109 Vt. at 62, 192 A. at 5 (stating that defendant's conflicting statements are competent
evidence if corroborated by other witnesses). A police officer testified
that soon after the incident, defendant stated on two different occasions
that she had driven the truck. She told the officer at her home that
"she had dr[u]nk ten beers . . . and she had . . .[driven] the vehicle to
her parent's house." Further, the officer testified that on the way to the
police barracks, defendant stated that she had driven the vehicle.
¶ 14. Despite defendant's admissions that she drove the truck, she
testified during her DWI trial that she had not driven the vehicle. At the
perjury trial, this evidence was admitted through a state witness who read
defendant's testimony from her DWI trial. During the DWI trial, the State
asked defendant if she told the officer that she had driven the vehicle.
She said, "I did, but it wasn't-it was more like in the sarcastic way."
Shortly after she made this statement, she testified that she did not drive
the vehicle. Her previous admissions, together with her testimony at her
DWI trial, create two conflicting statements. See id. at 62-64, 192 A. at
5-6 (relying on two of defendant's conflicting statements, one after the
incident and the other under oath, to conclude that defendant committed
perjury); see also Tonzola, 159 Vt. at 498, 621 A.2d at 246 (relying on
defendant's false statement under oath and corroboration from testimony by
other witness as evidence of perjury).
¶ 15. In addition, independent, corroborating evidence was
introduced at defendant's perjury trial demonstrating that defendant lied
during her DWI trial when she denied operation. Court records reflecting
that Ely lied under oath at defendant's DWI trial were admitted, including
the Information filed against Ely and the Criminal Charge Disposition
Report. These records show that Ely was convicted following his testimony
at the DWI trial for lying under oath when he testified that defendant did
not operate the vehicle.
¶ 16. Moreover, a witness, whose credibility is not questioned,
provided circumstantial evidence tending to show that defendant lied during
her DWI trial. See Woolley, 109 Vt. at 63, 192 A. at 5 (relying on
witnesses' credibility to support perjury conviction). A police officer
testified that, when he arrived at the scene, defendant was outside and
next to the vehicle that was parked in defendant's driveway, and the
vehicle's headlights were on. The officer testified without objection,
based on his experience, that "you get into a vehicle, you start it, you
turn on your headlights, you drive off, you shut the vehicle off," and that
he concluded that defendant had driven the vehicle and had forgotten to
turn off the headlights. Cumulatively, defendant's conflicting statements,
Ely's conviction for lying under oath about defendant not driving the
vehicle, and the officer's observations, were enough to support defendant's
perjury conviction. We recognize that the State did not present the
strongest case against defendant, but we find no obvious error so grave to
require reversal.
¶ 17. Defendant also argues that the court committed reversible
error when it failed to decide defendant's motion for judgment of acquittal
made at the close of the State's case. The trial court declined to rule on
defendant's motion because it wanted to "mull it over for a while," and
explained that this decision was permitted under Vermont Rule of Criminal
Procedure 29. Defendant did not object. The trial court later denied the
motion after the jury returned the guilty verdict concluding that
sufficient evidence existed to find defendant guilty beyond a reasonable
doubt. Defendant contends on appeal that had the court decided the motion
on the evidence admitted at trial when the motion was filed, it would have
granted it because the State failed to establish a prima facie case.
Defendant argues that she was prejudiced because the trial court considered
testimony admitted after the State rested its case, and there was
insufficient evidence to sustain a conviction. Because defendant failed to
make this objection at trial, we again review for plain error.
¶ 18. Rule 29 states in pertinent part:
(a) Motion Before Submission to Jury . . . The court on motion of
a defendant or of its own motion shall order the entry of judgment
of acquittal of one or more offenses charged in the indictment or
information after the evidence on either side is closed if the
evidence is insufficient to sustain a conviction of such offense
or offenses.
The reporter's notes explain that "[a] motion made at the end of the
state's case must be decided at that time because defendant should know the
court's ruling before he decides whether to rest or put in his evidence."
Reporter's Notes, V.R.Cr.P. 29.
¶ 19. Based on the statute's language and the reporter's notes, the
trial court erred when it did not rule on defendant's Rule 29 motion made
at the close of the State's case. We conclude, however, that when the
State rested its case, there was sufficient evidence in the record to prove
defendant's guilt beyond a reasonable doubt. See Rule 29 (state's evidence
must be insufficient for court to grant motion). At the end of the State's
case, upon reviewing the evidence in the light most favorable to the State,
we conclude that the State produced evidence fairly and reasonably tending
to show defendant guilty beyond a reasonable doubt. See State v.
Carrasquillo, 173 Vt. 557, 559, 795 A.2d 1141, 1145 (2002) (mem.) (setting
out appellate court's standard when reviewing the denial of a motion for
judgment of acquittal). Thus, defendant has not demonstrated that the
failure of the trial court to rule on her motion at the close of the
State's case amounted to plain error.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.).
Specially Assigned
------------------------------------------------------------------------------
Footnotes
FN1. Vermont is one of the few states that retains the per se incompetence
rule for convicted perjurers. Most state statutes and the Federal Rules of
Evidence provide that all persons are permitted to testify to relevant
facts within their knowledge. F.R.E. 601; Fuselier v. State,
95-CA-99960-SCT (¶¶ 15-20), 702 So. 2d 388 (Miss. 1997) (abandoning the
per se incompetence rule after recognizing that the "great weight" of
authority has rejected it). Until the Vermont Legislature amends 13 V.S.A.
§ 2907 and 12 V.S.A. § 1608, however, we must apply them.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
