State v. Eddy

State v. Eddy (2004-337); 179 Vt. 296; 895 A.2d 162

2006 VT 7

[Filed 13-Jan-2006]


       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.


                                  2006 VT 7

                                No. 2004-337


  State of Vermont	                         Supreme Court

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

  Chad P. Eddy	                                 October Term, 2005


  Michael S. Kupersmith, J.

  Diane C. Wheeler, Franklin County Deputy State's Attorney, St. Albans, for
    Plaintiff-Appellee.

  Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and
    Rebecca Turner, Law Clerk (On the Brief), Montpelier, for
    Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  JOHNSON, J.   Defendant appeals his conviction for burglary
  after a jury trial.  Defendant argues that the trial court erred by
  admitting evidence of the guilty plea of a person who was accused of
  committing the burglary along with defendant.  We affirm.
   
       ¶  2.  Defendant and Joshua Ritchie were arrested and charged with
  committing a burglary of a private residence.  Ritchie pled guilty prior to
  defendant's trial.  At trial, defendant did not testify, and he called only
  one witness, Shanna Labelle.  Labelle testified that both defendant and
  Ritchie were with her at Ritchie's apartment for the entire day on the day
  of the burglary, with the exception of about fifteen minutes.  During
  cross-examination, after establishing that Labelle insisted that neither
  defendant nor Ritchie could have committed the crime because they were with
  her all day, the State asked Labelle whether she was aware that Ritchie had
  pled guilty to the burglary.  She answered no.  The State then offered to
  show Labelle a certified court document showing the docket sheet in
  Ritchie's case.  Defense counsel objected without stating any grounds.  The
  State responded that it was attempting to impeach the witness.  The trial
  judge, Judge Kupersmith, expressed concern that the document was hearsay. 
  Defense counsel then stated his position that Ritchie would have to be
  produced, and that the document could be admitted into evidence only if
  Ritchie denied the fact of his conviction.  The judge indicated that he
  understood the State was not trying to impeach Labelle with her own
  conviction, but he remained concerned that the document contained hearsay
  statements by Ritchie.  Defense counsel asked for a mistrial, reiterating
  that the evidence should not come in, but still failing to state a specific
  basis for his objection.  After considering the matter further, Judge
  Kupersmith ruled that the State could not admit a hearsay statement of
  Ritchie, who was a co-conspirator, without an opportunity for defendant to
  cross-examine him.  The trial court terminated the State's
  cross-examination of Labelle regarding Ritchie's guilty plea.
   
       ¶  3.  The State then called Ritchie to the stand and asked whether
  he was charged with the burglary of the Andy Naylor residence.  Ritchie
  confirmed that he had been charged and that he pled guilty to the offense. 
  On cross-examination, defense counsel asked Ritchie why he had pled guilty. 
  Ritchie gave a lengthy explanation related to the benefits of the plea
  bargain and claimed that he had no recollection of committing the offense
  because he was using certain drugs that resulted in his "blacking out" from
  Saturday night until Monday morning.  The State then brought to Ritchie's
  attention the details of his plea colloquy in which he had admitted the
  facts alleged in the information in court, under oath, after which the
  judge had accepted his plea.   During his testimony, the State's exhibits
  proving the plea and conviction were admitted without objection, as was the
  entirety of Ritchie's testimony.  The next objection defendant made was at
  the charge conference, challenging the court's instruction to the jury as
  to how Ritchie's conviction could be used.  The court overruled this
  objection, and the jury convicted defendant of burglary.

       ¶  4.  Defendant argues that the trial court erred in admitting
  Ritchie's guilty plea because: (1) Vermont Rule of Evidence 609 does not
  permit use of a conviction to impeach anyone's testimony but the person
  convicted; and (2) the court's limiting instruction was inadequate to
  prevent the jury from using Ritchie's conviction as evidence of defendant's
  guilt.  To the extent that these arguments rely on a coherent
  interpretation of the rules of evidence, they are simply different ways of
  phrasing the same assertion, made for the first time on appeal, that the
  court should have excluded Ritchie's guilty plea under Rule 403 because of
  its prejudicial effect.  We hold that there was no error in admitting
  Ritchie's guilty plea, and we affirm.
   
       ¶  5.  We first address defendant's contention that the trial
  court's jury charge was inadequate to prevent the jury from using Ritchie's
  guilty plea as evidence that defendant was also guilty.  This argument was
  not presented to the court at trial.  At the charge conference, defendant
  objected to the State's proposed jury instruction, which prohibited the
  jury from using Ritchie's conviction as evidence of defendant's guilt and
  explained that they could use the guilty plea only to help weigh the
  credibility of Labelle's testimony.  The trial court used the State's
  proposed instruction over defendant's objection.  Defendant objected to
  this charge because "the rules of evidence are zealous about not allowing
  in prior convictions except under very limited circumstances," and Rule
  609, governing the impeachment of a witness by a prior conviction, allows
  impeachment by a prior conviction of only the testifying witness.  This was
  the first time defendant stated a legal basis for objecting to the
  admission of the guilty plea; hearsay was the only basis discussed for
  excluding the evidence at the time it was introduced, and Judge Kupersmith,
  not defense counsel, was the one who raised the concern about hearsay. 
  Putting aside the admissibility of the evidence in general, there was no
  error in the court's jury charge.  Defendant's argument pre-charge seems to
  have been that the instruction was improper because the evidence should not
  have been admitted in the first place.  Having failed to make an objection
  to the evidence initially, except on hearsay grounds, it can hardly have
  been of benefit to let the evidence go to the jury without an instruction
  as to its proper use, which was to contradict Labelle's testimony that
  Ritchie could not have committed the crime.  
   
       ¶  6.  Defendant's claim of error actually relates to the court's
  admission of the evidence in the first place.  He contends that it was not
  permissible for the State to use Ritchie's guilty plea to impeach Labelle. 
  This argument relies on a misinterpretation of Rule 609, which governs the
  use of a prior conviction to impeach the credibility of a witness.  Here,
  the conviction the State used was not Labelle's, but Ritchie's.  Defendant
  is correct that Rule 609 does not contemplate this use of a prior
  conviction.  This does not mean, however, that Ritchie's conviction was
  inadmissible.  Instead, it means that consulting Rule 609 cannot help
  resolve the admissibility of the evidence.  Rule 609 allows the use of a
  witness's prior conviction when the conviction demonstrates the witness's
  character for untruthfulness, either because the crime's "statutory
  elements necessarily involve untruthfulness or falsification," or because
  the crime was a felony under Vermont law.  V.R.E. 609(a).  This rationale
  fails to apply in this case.  Ritchie's guilty plea was introduced not to
  show that Labelle was generally untrustworthy, but rather to contradict
  Labelle's assertion that neither Ritchie nor defendant could have committed
  the crime.   Rule 609 simply does not address the use of a prior conviction
  for the purpose of impeachment by contradiction.  See 4 J. Weinstein & M.
  Berger, Weinstein's Federal Evidence § 609.02[2], at 609-9 (2d ed. 2005)
  (stating that Federal Rule of Evidence 609 "does not govern the
  admissibility of convictions used to contradict a witness's testimony"). 
  Defendant interprets Rule 609's inapplicability to this situation as a bar
  on the admission of Ritchie's guilty plea.  Such an interpretation ignores
  the most basic principle of admissibility, Rule 402, which states that
  "[a]ll relevant evidence is admissible," unless some other rule, statute,
  or constitutional provision makes it inadmissible.  V.R.E. 402.  Thus, Rule
  609's inapplicability has no bearing on the admissibility of Ritchie's
  guilty plea; it was relevant evidence that contradicted defendant's alibi
  evidence, and it was therefore admissible unless prohibited by some other
  rule. 
   
       ¶  7.  Defendant cites several cases in support of his argument that
  one witness's prior convictions cannot be used to impeach another witness,
  but each statement that seems to support defendant's argument is cited out
  of context.  Defendant cites United States v. Lipps, 659 F.2d 960, 962 (9th
  Cir. 1981), which held that a witness's prior convictions could not be used
  to impeach the witness's common-law wife's testimony.  In Lipps, however,
  the witness whose convictions were used was the defendant, it was not
  obvious what value the convictions had for impeaching the defendant's
  common-law wife's testimony, and the defendant had already stipulated that
  he was a convicted felon.  Id.  Similarly, defendant relies on Commonwealth
  v. Degro, 733 N.E.2d 1024, 1033 (Mass. 2000), which held that one person's
  conviction could not be used to impeach another person's testimony.  In
  that case, though, the deceased victim's prior convictions were erroneously
  admitted to impeach the testimony of two other witnesses under
  circumstances where the relevance of the victim's prior convictions was
  unclear.  Id.  Finally, defendant cites State v. Martin, 827 A.2d 1, 9-10
  (Conn. App. Ct. 2003), which reversed a defendant's conviction after the
  trial court took judicial notice of a co-conspirator's conviction following
  a separate trial for the same offense.  In Martin, the defense counsel
  stated in his closing argument that neither the defendant nor the
  co-conspirator could have committed the crime, and the trial judge informed
  the jury that the co-conspirator had previously been convicted of the
  crime.  In reversing the defendant's conviction, the court held that the
  trial court's statement was more prejudicial than probative, and stated,
  "It is a well-accepted principle that evidence about the conviction of a
  co-conspirator is not admissible as substantive proof of the guilt of a
  defendant."  Id. at 8 (quotations omitted).  The court pointed out that the
  trial court could have avoided the prejudicial effect resulting from
  revealing the co-conspirator's conviction by simply instructing the jury to
  disregard the defense counsel's improper statements.  Id.
   
       ¶  8.  None of the cases cited by defendant establishes a clear rule
  prohibiting the use of a prior conviction to impeach a witness other than
  the person convicted.  Rather, each of these cases, especially Martin, in
  which the conviction at issue was for the same offense for which the
  defendant was on trial, held that, under the specific circumstances, the
  probative value of the conviction was substantially outweighed by its
  prejudicial effect.  Rule 609(a)(2) incorporates this weighing of probative
  value and prejudicial effect, but more importantly, Rule 403 applies a
  general balancing test for admitting evidence, stating, "Although relevant,
  evidence may be excluded if its probative value is substantially outweighed
  by the danger of unfair prejudice, confusion of the issues, or misleading
  the jury, or by considerations of undue delay, waste of time, or needless
  presentation of cumulative evidence."  V.R.E. 403.  Here, defendant
  contends that even if Rule 609 did not require the trial court to exclude
  Ritchie's guilty plea, Rule 403 required the court to weigh the plea's
  probative value against its prejudicial effect.  Defendant raises this
  argument for the first time on appeal.  "In order to claim error on appeal,
  a defendant is required to make a timely objection to the admission of
  evidence, and if it is not apparent from the context, he or she must state
  the specific ground for the objection."  State v. Shippee, 2003 VT 106, ¶
  10, 176 Vt. 542, 839 A.2d 566 (mem.) (citing V.R.E. 103(a)(1)).  We
  therefore review the trial court's admission of Ritchie's guilty plea for
  plain error, which occurs only "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. Franklin, 2005 VT
  90, ¶ 6, 15 Vt. L. Wk. 281, 883 A.2d 783 (mem.) ("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.").  Even when a defendant makes a timely
  objection, the trial court's discretion in balancing prejudice against
  probative value under Rule 403 is broad.  Shippee, 2003 VT 106, ¶ 13.
   
       ¶  9.  We hold that it was not plain error for the trial court to
  admit Ritchie's guilty plea for the limited purpose of impeaching Labelle's
  testimony by contradiction.  In contrast to the conviction in Martin,
  Ritchie's plea was probative of important facts independent of his own
  guilt.  Defendant presented only a single witness, Labelle, and his entire
  theory of the case relied on Labelle's statement that neither defendant nor
  Ritchie could have been present at the burglary.  Ritchie's guilty plea was
  compelling evidence that Labelle's testimony was either a mistake or a lie. 
  The guilty plea was also prejudicial; because the State's witnesses
  testified that Ritchie and defendant committed the crime together, there
  was a risk that the jury would presume defendant's guilt from Ritchie's
  plea, without making an independent determination of defendant's guilt. 
  See Martin, 827 A.2d  at 8 ("[A] defendant is entitled to have the question
  of his guilt determined upon the evidence against him, not on whether a
  codefendant or government witness has been convicted of the same charge.")
  (quotations omitted).  The court recognized this prejudicial effect, and it
  attempted to mitigate it through the jury charge.  We cannot say that it
  was plain error for the court to determine that the prejudicial effect of
  Ritchie's guilty plea did not substantially outweigh its considerable
  probative value.  While it is unfortunate from defendant's perspective that
  his alibi witness vouched for the innocence of a person who had already
  pled guilty, it was not error for the court to allow the State to point out
  this discrepancy, particularly when defendant did not call the court's
  attention to any arguable legal basis for excluding such evidence.

       Affirmed.   



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice