State v. Brewer, 2010 VT 110 (mem.).
By Gavin Boyles
The SCOV really had no choice but to affirm here, folks. Defendant, on trial for aggravated domestic assault, admitted that he had been so drunk on the night of the alleged offense that he didn’t remember anything that happened. Perhaps because of this, he chose not to testify in his own defense. Because, really, how effective would it be to say repeatedly “I can’t have done anything really bad, or I’d remember it better, you know”?
Anyway, the State moved in limine to introduce evidence of a litany of defendant’s prior offenses. The trial court said “no dice” as to all but one: an obstruction-of-justice conviction, which the court said the State could use only if defendant testified, and then only for impeachment. Defendant, as I said above, then chose not to testify. Thus, the State did not put the obstruction conviction in evidence, but defendant was convicted anyway, on the basis of testimony from two police officers and the complainant.
Defendant appealed the conviction, arguing that the trial court erred in ruling that the prior conviction could have come in if defendant had testified (which, again, he didn’t). The SCOV turned to VRE 609 to determine whether the trial court had abused its discretion in (conditionally) ruling the obstruction conviction admissible.
Defendant’s main problem was that neither the trial court nor the SCOV knew anything about his possible testimony other than . . . that it sure wouldn’t be about the night of the alleged crime. Recall that he was too drunk to remember it. To put it succinctly, as the SCOV did here, “[i]f defendant was too drunk to remember the events leading to his arrest, it is hard to imagine how he would have managed to testify credibly at all, even absent evidence of his prior conviction.” Thus, no prejudice and no reversal.