Tuesday, October 5, 2010

Court Issues Rote Smackdown on Prior Statement Challenge

The most interesting question raised by this appeal may be “Why wasn’t it on the rocket docket?” 

Defendant was charged with aggravated sexual assault on a child under eighteen years of age.  13 V.S.A. § 3252(d).  The victim was his stepdaughter, who was less than twelve years old.  After a jury trial in which certain recordings of the stepdaughter’s prior statements were played, defendant was convicted.

Defendant raised three claims on appeal:

1)                  that the court erred by admitting the victim’s recorded statements during the State’s case-in-chief under VRE 804a when the statements were really offered as corroborative evidence and should have been analyzed under VRE 801(d)(1)(B);
2)                  that the court violated the Vermont Rules of Evidence by not allowing the defense to cross-examine the victim after her recorded statements were played; and
3)                  that the court violated the United States and Vermont Constitutions by not allowing the defense to cross-examine the victim after her statements were played.

The Court rejected all three claims of error and affirmed the conviction.  The defense simply could not surmount the double problem that none of the claims were preserved at trial and only one of them was contrary to an express rule of evidence.

As to the first claimed error, the Court noted that, in enacting VRE 804a, the Legislature “intended that a child victim’s corroborative statements would be admissible, whether or not they met the requirements of Rule 801(d)(1)(B).”  The Court had already ruled in State v. Gallagher, 150 Vt. 341, 344 (1988), that the child victim’s testimony in the State’s case-in-chief did not preclude the later use of the child’s recorded statements under 804a.  Thus, the trial court “did not err in admitting recorded statements to buttress [the victim’s] live testimony.”

On the second claim, the Court held that defense counsel had actually stipulated at trial that she did not need to recall the victim: defendant had the opportunity to recall [the victim] but chose to play the tapes instead.”  Accordingly, the Court concluded that the issue was not preserved and thus would not be reviewed at all.

The third claim was likewise unpreserved but, being a constitutional claim, was reviewed for plain error.  See V.R.Cr.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”).  The Court concluded, however, that it was not plain error (if error at all) to admit, upon the parties’ stipulation, videotaped rather than live testimony.  See also State v. Koveos, 169 Vt. 62, 67 (1999).

This is a five-Justice opinion that would have been right at home on the rocket docket.  None of the claims required anything beyond straightforward application of settled law, and two of the claims were unpreserved.  Which raises a question—is the rocket docket overused or underused?

Gavin Boyles

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