Friday, December 10, 2010

SCOV Sets Up Third Trial for Alleged Sex Offender


State v. Herring, 2010 VT 106

Defendant was convicted of several counts of aggravated sexual assault, sexual assault on a minor, and lewd or lascivious conduct with a child, and sentenced to thirty-years-to-life in prison.  All charges were based on defendant’s alleged abuse of his daughter from the time she was five years old until she was sixteen.  On appeal, defendant claimed that the trial court erred in multiple evidentiary rulings and in refusing to grant defendant a continuance.  The SCOV agreed with defendant on his first claim of error—that the trial court improperly excluded evidence the defense proffered to impeach his daughter’s testimony—and proceeded to rule that this was not a harmless error.  Therefore, the Court vacated defendant’s conviction and remanded the case for a new trial.  This is not a pretty case, and the evidence being debated is both sad and disturbing.  Reader, take warning.


At trial, daughter testified about a certain incident during which her father forced her to have oral sex, then to drink Alka Seltzer.  After drinking the Alka Seltzer, daughter vomited profusely.  Daughter testified that this episode happened at her home.  After hearing this testimony, Defendant sought to introduce a videotaped police interview of daughter in which she recounted the same episode, but stated that it took place in a hotel in a different county.  Defendant was seeking to offer this evidence as a prior inconsistent statement to impeach daughter’s testimony. 

However, when defense counsel proffered the videotaped testimony during a bench conference, the trial court ruled that it must be excluded.  Here is where the trouble lies.  Defendant was proffering the evidence, but the trial court decided to exclude because it would be too prejudicial to Defendant.  This is a novel application of Rule of Evidence 403, which is usually asserted against the State to shield a Defendant from a particularly shocking and prejudical fact (think Jeffrey Dahmer contesting a parking ticket).  The SCOV determined that even under the highly deferential standard it applies to evidentiary rulings, this decision was error.  The SCOV noted that it is generally not up to the trial court to weigh the risks of a chosen defense strategy, and that an attorney’s decisions at trial “are generally given effect” unless there has been a “demonstration of ineffectiveness.”  There was no question as to defense counsel’s competence here, and thus there was no basis for the trial court to second-guess the defendant’s strategic trial choices by barring evidence defendant sought to introduce, which was otherwise admissible.  Furthermore, the SCOV had a difficult time seeing how the earlier inconsistent version of the Alka-Seltzer incident would be prejudicial to Defendant, and the SCOV could see obvious ways in which the impeachment evidence would have bolstered Defendant’s case. 

After determining that the exclusion of the impeachment testimony was error, the SCOV proceeded to examine whether the conviction could nonetheless be upheld on the basis that the error was harmless.  In a criminal case, error is harmless only if the Court determines that it is harmless beyond a reasonable doubt.  Here, the SCOV reasoned that the error went to the heart of the case and could not be categorized as harmless.  This case was mainly “a swearing contest between the complainant and defendant” (not the four-letter-word kind of swearing, but the he-said, she-said kind).  Thus, the exclusion of evidence that could create a reasonable doubt, about daughter’s testimony, could have changed the outcome of the case.  Additionally, the Court made clear that barring the impeachment evidence squarely implicated defendant’s constitutional right to confront the witnesses against him.  When error is of a constitutional magnitude, the SCOV is even less likely to conclude that it is harmless.  In this case, the combination of the constitutional dimension of the error, and the centrality of daughter’s testimony to the prosecution’s case, made it clear to the SCOV that the error was not harmless and the conviction must be reversed. 

Postscript:  The Legally Irrelevant Trial Court Decision and the Unexplained Nuttiness

To be fair to the trial court, a few more background facts are in order here—facts that help put the exclusionary ruling in context, but that leave you feeling like the knots that the trial court had tied itself up in were even more complicated that the summary above would lead you to imagined (so maybe I’m not actually providing this background to be fair to the trial court, but it is interesting; so I just want to tell you about it).  The trial in which Defendant was convicted was actually his second trial.  His first trial had ended with a hung jury.  But prior to the first trial, the defense had won a motion to exclude all of the State’s evidence of Defendant’s actions against his daughter, which had occurred outside of Windham County—the county in which this case was brought.  The trial court’s ruling to exclude the videotaped police interview of daughter (in which she stated that the Alka-Seltzer incident occurred outside of Windham County) was in one sense an apparent effort to maintain some consistency in the pretrial exclusionary rulings and the subsequent trial rulings.  In other words, if the evidence would have been inadmissible for the State to introduce it, then it should be inadmissible for the defense as well.  Call it the even-steven theory of evidence.  As the SCOV points out in its decision, that sounds kind of crazy all on its own because if the defendant wanted to waive his claim of prejudice as to this incident, then he is allowed to make that choice. 

But the part that is even crazier sounding is described in a footnote in this decision.  The SCOV explained that the trial court’s pretrial ruling excluding evidence related to defendant’s outside-of-Windham-County acts against his daughter was apparently based on the trial court’s decision that it did not have jurisdiction over any acts outside of Windham County.  This decision seems a bit odd intuitively, but it is also plainly contrary to the statutory provision establishing that there is but “one district court having statewide jurisdiction.”  The pretrial ruling thus appears to be premised on murky jurisdictional grounds.  On appeal, the State apparently argued in support of the trial court’s ruling—perhaps hoping to bolster the trial court’s decision to exclude daughter’s prior inconsistent statement—but in doing so the State had to ignore the statutory provision granting the district court statewide jurisdiction—a fact that does not escape the SCOV’s attention.  Be that as it may, this issue really plays no part in the SCOV’s decision.  Presumably it is a polite way for the SCOV to chide the trial court and the state, but I suspect its true impact will be rhetorical with the expected re-match of trial number three. 

In sum, I wish I knew what the moral of this story is.  Could it just be that the State should have appealed the pretrial ruling that excluded all of the outside-of-Windham County evidence instead of moving forward and then supporting that ruling in the appeal?  Or is it an even broader moral—what would you have done with that set of rulings as the prosecution or as the defense?  Perhaps some of our faithful SCOVLaw blog readers have some insight?

3 comments:

  1. OK, I'll bite. I'm puzzled. There must have been other evidence against this defendant. If I understand the description above correctly, his first trial ended in a hung jury despite the exclusion of the out-of-Windsor County evidence. So there must have been "something" else, eh? Juries, even Vermont juries, would acquit if ALL the evidence against a defendant was excluded.

    Now, in the second trial, surely that other evidence was introduced. Shouldn't SCOV have engaged in some consideration of the other evidence, assessing whether or not the defendant would have been convicted even if the contested evidence had been admitted? After all, that evidence could have had two possible effects on the jury, as I see it: they could have been led by the inconsistency to distrust the daughter's testimony on other matters; or they could have concluded that the daughter was consistent in testifying that the defendant did the dastardly deeds and dismissed the inconsistency as to where he did them as a product of distraught daughterhood (given what he allegedly did to her, she could easily have been distraught, eh?). So that evidence could have cut either way, and there's no way to tell how the jury would have taken it. So, were I SCOV (which, thankfully I am not) I would have spent my energies evaluating whether there was enough other evidence to convict. It doesn't sound like that was where they spent their energies. Odd.

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  2. I agree with you KR. I am sure the Defense is going to go back to the trial court, if the State is still prosecuting, to make motions to strike the daughter's testimony as unreliable or that it is insufficient as a matter of law. On the other hand, I had a civil case that went up on appeal twice and was reversed in our favor both times. That still did not stop a jury from coming back with a verdict against our client for the third time in a row.

    This case might be indicative of the weakness of a system with only one appellate level court. When the SCOV rules on a case, it rules for both minor trial defects and substantive analysis of major case law issues. Sometimes, the decisions focus on one to the detriment of the other, and the tendency to opine as a Supreme Court sometimes overshadows the need for specific direction to the trial court for remand. This case here did not scream out "major declaration in new case law." (What does?) Rather it seemed to be a trial that had gotten out of hand, needed to be sorted out, and returned to trial court with clear instructions and directions for the inevitable re-do.

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  3. @ daniel: well said

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