Friday, February 24, 2012

I’ll Take “Modifying Evidence,” For One Thousand, Alex

By Michael Tarrant

State v. Stolte, 2012 VT 12 (mem.).

The criminal justice system is serious business—all the more so when the charge is murder.  And whatever you believe “justice” means, one thing is certain: the ultimate result means a great deal to the person sitting in the defendant’s seat.  With dire consequences at stake, it’s a curious thing that often one’s fate can hinge on the meaning of a single term.  A picture might be worth a thousand words, but a word can be worth a life in prison.

Here, Defendant has been charged with second-degree murder for the death of the one-year old daughter of his then-girlfriend in March, 2010.  But today’s SCOV case does not delve into an appeal for a murder conviction.  No, in fact, Defendant apparently has yet to be tried.  Rather, today’s case deals with bail, or—perhaps more accurately—the denial of bail.

Back on March 17th, 2010, Defendant was babysitting his then-girlfriend’s daughter.  In the early morning hours of March 18th, the one-year old daughter passed away from head injuries.  After being interviewed by the Vermont State Police on five separate occasions, the Defendant explained the events leading up to the young girl’s death as follows.  Defendant and his then-girlfriend and her daughter were at the Defendant’s mother’s house.  Around 3pm that day, the mother of the child left for work.  Defendant’s mother had stopped by early in the evening, but she too had left for work around 6:30pm.  

Defendant told the police that he had put the young girl to bed around 9:30pm with a bottle, and at that time noticed that one of her eyes was “drooping.”  Defendant called his then-girlfriend and expressed his concern, but she thought the drooping eye might be a symptom of the girl’s cold. Defendant claims that he subsequently checked on the child periodically until just after 11pm when he found her to be barely breathing.  At this point, he called 911 and an ambulance brought her to the hospital where she died shortly thereafter.

On March 19th, Defendant was charged with second-degree murder and held without bail.  On March 30th, following a bail review hearing, the criminal division ordered Defendant held without bail pending trial under Chapter II, § 40 of the Vermont Constitution and section 7553 of the Vermont statutes.  Section 7553 permits denial of bail when “the evidence of guilt is great.”  In the criminal division’s written opinion, it described the evidence against Defendant as “circumstantial, but . . . substantial nevertheless.”  Referencing certain parts of the autopsy findings, the court found that the evidence strongly suggests the young victim’s injuries were sustained at a time when she was in the “defendant’s exclusive care” and that there was strong evidence that Defendant was “the only possible source of the injuries.”  The opinion did not mention other parts of the autopsy indicating possible sexual abuse.

In October 2011, Defendant filed a motion to review bail based on evidence discovered since the earlier bail review hearing.  Defendant argued that DNA evidence reported in June 2011 had eliminated him as the source of certain hairs found on the victim’s body, and that this evidence undermines the State’s position that he was the only person who could have committed the murder.  Based on this and other evidence, Defendant argued to the court that the evidence against him was no longer “great” and that the court should therefore set conditions of release under section 7554.  Section 7554 states that “[a]ny person charged with an offense, other than a person held without bail under section 7553 or 7553a of this title, shall . . . be ordered released pending trial in accordance with [certain conditions].”

Unfortunately for Defendant, the trial court denied his motion.  The trial court explained that under the SCOV’s decisions in State v. Turnbaugh and State v. Duff, the DNA and other evidence was “modifying evidence” that could not be used to reconsider the initial bail denial.  Thus, the court concluded that such evidence “did not change the determination as to whether the state has established a prima facie case by showing substantial, admissible evidence as to each element of the offense.”

Defendant appealed to the SCOV, making two arguments that the criminal division erred in calling the DNA evidence “modifying evidence” under Duff.  First, Defendant argues that the DNA evidence is the State’s evidence rather than evidence developed by the defense because the State itself collected and analyzed the hair samples.  Second, Defendant argues that “modifying evidence” is evidence that requires a credibility determination, and that he is not seeking to use the DNA evidence to challenge the State’s evidence, rather he wishes to use it to challenge the trial court’s rationale for denying him bail.  Thus, the issue comes down to the definition of “modifying evidence.”

The SCOV agrees with Defendant, and reverses and remands.

The SCOV starts its analysis by explaining the standard for determining when evidence of guilt is “great,” as set forth in Duff: essentially, the State need only make out a prima facie case, or, in other words, when “the evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show [the] defendant guilty beyond a reasonable doubt.”

In State v. Gibney, the SCOV defined “modifying evidence” as “exculpatory evidence introduced by the defendant, such as countervailing testimony.”  In Gibney, the evidence properly excluded as modifying was alibi testimony.  Gibney, in turn, took its definition from two federal cases that refused to consider “countervailing testimony” or “evidence adduced by the defendant” when considering a motion for judgment of acquittal.  From all of this, the SCOV concludes that modifying evidence “is testimonial evidence introduced by the defense in contravention to the state’s evidence, the credibility or weight of which is ultimately for the factfinder’s determination.”

The SCOV notes that defining modifying evidence as “testimonial evidence introduced by the defense” is consistent with the idea that credibility determinations based on conflicting evidence have no place during prima facie determinations.  Such credibility determinations, the SCOV reminds us, are ultimately jury questions.  Thus, the exclusion of such evidence “is meant to avoid judicial decisions on credibility only when live witnesses or affidavits are presented.”  In contrast, the SCOV explains that where the validity of non-testimonial evidence (such as DNA, photographs, or other physical evidence) is not contested, there is no credibility issue for the jury to resolve, and the evidence should not be excluded from consideration.  But, in cases where the validity of non-testimonial evidence is contested, such evidence would raise factual questions and thus could properly be considered “modifying evidence” which must be left for the jury to decide.

Thus, the SCOV concludes it was error to “necessarily” conclude that Defendant’s DNA evidence was testimonial modifying evidence.  The SCOV reverses and remands to the criminal division to determine whether the evidence, if relevant, is “undisputed as to its origin and result as a matter of fact” and if there is a genuine dispute as to either, it may properly be excluded as “modifying evidence.”  However, barring such a dispute, the trial court must determine whether the evidence, if relevant, would have made a difference to its initial bail determination as to whether the State’s evidence of guilt is “great.”

Only time will tell if this victory means anything more than words on paper for Defendant.

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