Tuesday, January 29, 2013

Confronting Neighbors (and Witnesses)

By David Rangaviz

State v. Tribble, 2012 VT 105

Criminal decisions are, very often, exercises in line drawing.  In this exercise, rules are highly fact-specific.  Change just one fact, and the outcome can easily turn with it.  Because no two cases are ever identical, each new one demands that a court constantly re-examine its earlier rules and either (a) re-draw the line to accommodate the new case, or (b) keep the line unchanged and explain why.

In today’s decision, the SCOV, with considerable help from the SCOTUS-above, opted to re-draw a few pivotal lines in the areas of the right to confrontation, self-defense, and the diminished capacity defense.  In the process, the Court reversed a murder conviction.

But we are getting ahead of ourselves.  First, the facts.

Around early 1999, Defendant moved onto a parcel of land in rural Wolcott.  Almost immediately, Defendant had compiled a litany of grievances against his neighbors, including the victim (whom we will simply dub “Neighbor”).  These included the fact that Neighbor was generally hostile toward him; that Neighbor’s son drove too fast on their shared road; that Neighbor’s family burned too much trash; that Neighbor fired multiple gunshots while in Defendant’s vicinity; and that Neighbor once “got in his face” because Defendant had stopped waiving at Neighbor and his family.

On September 26, 2000, these issues boiled over.  According to Defendant, Neighbor had threatened him numerous times the previous day, which had caused Defendant to fear for his life and carry a pistol on his person.  

That afternoon while Defendant was chopping wood in his yard, Neighbor stopped by and got out of his car.  The story gets hazy and is based solely on the statements of the Defendant, but the conversation, what there was of it, broke down, and Neighbor began chasing Defendant down an embankment off the side of the road.  Defendant drew the gun and shot Neighbor in the butt hoping to scare him away.  Neighbor, who was made of sterner stuff, did not stop his pursuit, but when Defendant tried to fire a second shot, the pistol jammed.

So Defendant ran to his car to get the shotgun.  Neighbor also started to move towards his own vehicle.  Afraid that Neighbor might be going to get himself a weapon, Defendant shot him in the hip.  

Defendant then allowed Neighbor to run away, but he resumed the pursuit because he feared that Neighbor might still pose a threat.  When Neighbor refused to step away from a nearby dump truck, Defendant shot him a third time.  The Neighbor wheeled around and began to approach Defendant, and Defendant fired the deathblow—shooting Neighbor for the fourth time, in the chest with the shotgun.

At trial, Defendant maintained that, because he was in fear for his own safety throughout the entirety of the altercation, he had acted in self-defense.  Since there were no other witnesses to the killing, the State put forward two types of evidence to refute Defendant’s claim: testimonial evidence of Defendant’s aggressiveness in general (particularly with respect to Neighbor), and physical evidence to undermine Defendant’s story of the events on the day in question.

For testimonial evidence, various individuals came forward and testified that Defendant was a much more aggressive person than Neighbor, and had, on certain occasions, even threatened to kill Neighbor.  As for physical evidence, the State’s case hinged on the testimony of Dr. Morrow, a forensic pathologist and Vermont’s Chief Medical Examiner who had performed Neighbor’s autopsy.  (Oddly, Dr. Morrow’s first name appears nowhere in the opinion, but given the spelling of his last name, he’s probably not the Dr. Moreau you’re thinking of.) 

Or maybe he is. 

At any rate, Morrow described the details of Neighbor’s bullet wounds, and, in the process, undermined parts of Defendant’s story.  Specifically, Morrow testified that: the first three shots had likely caused Neighbor considerable pain (and probably crippled his ability to continue pursuing Defendant); the shotgun had been re-loaded between shots (making it less likely that Defendant acted in self-defense); most of the pellet wounds had been in the back (refuting Defendant’s argument that Neighbor was facing him); and the trajectory of the first shot made it unlikely that Neighbor was chasing Defendant down an embankment.  In short, the physical evidence appeared to weaken or contradict Defendant’s version of events.

But there was a critical problem with all of this giving rise to the first issue that the SCOV addresses in its opinion—Dr. Morrow was not actually present at trial.  

At the time of trial, Dr. Morrow was working and residing in New Zealand, and for him to testify at trial would have been “immensely inconvenient” and required a “business class ticket.”  (Or, according to that nation’s apparent re-branding—a long walk from Middle Earth.)  

Instead, the State used a deposition to preserve Morrow’s testimony before his departure, at which Defendant and his counsel were both present to register any objections.  Although defense counsel agreed to the deposition, Defendant personally objected and demanded that Morrow be compelled to testify live in court.  The judge allowed the videotaped testimony.

SCOV reverses Defendants conviction on this point.  By the SCOV’s estimation, Defendant had a right to confront Morrow in front of the jury, a right that only he (and not his lawyer) could waive, and the error is sufficiently harmful to warrant a new trial.

The SCOV hinges its decision on the Confrontation Clause of the Sixth Amendment to the Constitution, which reads: “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  

With a rich history dating as far back as Roman law and made infamous during the trial of Sir Walter Raleigh in 1603, the constitutional right to confrontation had seen its importance decline.  And to many in the modern era, it began to look like a vestigial redundancy.  In the 1980s, the SCOTUS had regarded the right to confrontation as a constitutional reiteration of the rules against the admission of hearsay evidence; if a statement was admissible under these rules, it was admissible under the Constitution. 

In recent years, however, this short clause has seen a dramatic revival in relevance.  Since 2004, the SCOTUS has given the Confrontation Clause new life through a series of decisions re-drawing its limits.  Under the recent line of SCOTUS decisions, the Confrontation Clause forbids the admission of “testimonial” out-of-court statements—that is, statements made under circumstances where the witness would “reasonably believe” that the statements might be used at a later trial. 

This is a powerful brake on court process in an era where teleconferences, informal meetings, and chat-rooms have become the norm.    

Although the SCOTUS has yet to offer a comprehensive definition of the meaning of “testimonial,” this doesn’t really matter for this case.  Any definition of “testimonial” would seem to encompass Morrow’s deposition—he was deposed for the sole purpose of having the testimony used at trial.

But wait a second . . . I said that Defendant was present at the deposition!  So it’s all okay, right?


A critical part of confrontation, according to SCOV, is not only that a defendant be able to confront his accuser, but also that the accuser be forced to face the jury simultaneously.  This serves twin purposes: the jury can make the best assessment of whether the witness is telling the truth, and the witness is confronted with the gravity of the proceedings and forced to accuse a defendant in the presence of both the defendant as well as those who will decide his fate.  So, because the right to confrontation is a right to confrontation in front of the jury, Defendant’s rights had been violated.

This logic is subject to legitimate criticism.  As a four-justice minority of the SCOTUS has argued in repeated dissents in such cases, lab analysts and other scientists like Morrow are not the classic “witness against” a defendant that the Confrontation Clause likely contemplated.  These witnesses are far removed from the defendant, have no personal knowledge of the defendant’s guilt or innocence, and thus are unlikely to recant their prior scientific conclusions upon seeing the defendant in front of a jury.  

Doctors like Morrow perform countless autopsies every year, and are unlikely to remember a particular case, test, or defendant.  Most likely, they are on the witness stand merely parroting notes made at the time of the autopsy.  (For example, Morrow likely wouldn’t know Dennis Tribble from Don Tibbles.)  Additionally, Morrow performed his autopsy of Neighbor in 2000 and the trial occurred in 2009, making his personal recollection particularly unlikely.  

(If Morrow testified live and in person, the practical benefits would undoubtedly be negligible.  Although there’s always a chance someone could pull a Nicholson.)

The SCOV quickly sidesteps such concerns by noting that the SCOTUS-above has already rejected them.  Since 2004 the SCOTUS-above has reconceived of the Confrontation Clause as a procedural guarantee rather than a fount of evidentiary reliability.  “[W]e would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”  Because SCOV is not free to ignore SCOTUS-above on matters of federal law, the SCOTUS-above’s earlier consideration and rejection of such arguments binds SCOV as well.

But the right to confrontation cannot be absolute.  Otherwise, when witnesses die, entire prosecutions would die along with them (which would give some defendants the perverse incentive to turn trial preparation into a Jimmy Breslin column).  In recognition of this reality, the SCOTUS has held that where a witness is unavailable for trial, his “testimonial” statements can be admitted so long as the defendant had a prior opportunity to cross-examine the witness.  Thus, if Morrow were deemed “unavailable” as a matter of law, the State’s failure to procure his presence at trial would be excused.

Here is where the rub to the State comes from the SCOV.  Contrary to what Peter Jackson and its entire tourist industry would have us believe, New Zealand is not Middle-Earth, and Morrow’s presence there cannot establish his unavailability.  According to SCOV, the impediments of inconvenience and cost—the only two things standing in Morrow’s way—are insufficient to support a finding of unavailability.  Thus, no matter how “immensely” inconvenient or costly (a “business class ticket”) it might be, the State had to bring Morrow from New Zealand to Vermont for the trial, so he could testify in-person about an autopsy he had conducted a decade earlier.

But didn’t the defense counsel agree to allow Morrow’s videotaped testimony, over Defendant’s own objection?  So the SCOV faces another subsidiary question: Is the right to confrontation a matter of trial strategy reserved for the judgment of counsel, or is it a right of such fundamental importance that it can only be personally waived by Defendant?

SCOV ignores this binary.  Although the SCOV recognizes that most courts have allowed an attorney to waive the right to confrontation on behalf of their clients, it notes that these waivers were universally held invalid in circumstances where the client had voiced disagreement with the decision.

In other words, no court has ever allowed an attorney to overrule a defendant’s objection to a waiver of the right to confrontation, and SCOV is not about to be the first.  

Finally, the SCOV has to consider the effect of the erroneously admitted Morrow’s videotape.  Specifically, the SCOV looks to whether it can ascertain “beyond a reasonable doubt” whether the jury would still have convicted Defendant of second-degree murder without Morrow’s testimony.  It cannot be so certain.  The evidence formed one-half of the State’s two-pronged strategy of using both testimonial and physical evidence to refute Defendant’s story.  

Without Morrow’s testimony, the physical evidence—which showed that Neighbor had been shot in the back repeatedly and had likely been in crippling pain before the final gunshot—could not have been admitted.  There was no other physical evidence.  Without this evidence, Defendant’s story becomes more believable, and the SCOV reverses the conviction.

The SCOV considered one additional error that Defendant raised because that issue might arise at any future retrial.  Throughout the trial, Defendant had clashed with his attorney regarding the assertion of a diminished capacity defense—Defendant wanted to stick to a self-defense theory, while his counsel preferred to present testimony regarding Defendant’s diminished capacity.  Think of it as an I-had-to-shoot-him-for-safety defense versus an I-was-too-messed-up-not-to-shoot-him defense.

Defense counsel prevailed at trial, successfully arguing to the trial judge that the issue was one of strategy reserved to his professional judgment.  In support of the diminished capacity theory, defense counsel then offered the testimony of two psychiatric experts, who stated that Defendant suffered from a type of delusional disorder that created a paranoid belief that other people wanted to harm him.

The SCOV begins by noting that defendants are already allowed to decide whether to assert an insanity defense and whether to instruct the jury regarding lesser-included offenses.  Citing decisions from Utah, Colorado, and Pennsylvania (three states that probably don’t agree on much else), the SCOV reasons that defendants also should be allowed to decide whether to pursue a diminished capacity defense.

The difference, for SCOV, lies in whether the decision requires that the defendant forego an innocence-based defense (i.e., an exculpatory defense like self-defense, which, if successful, would get defendant completely off the hook) in favor of pursuing a mitigating defense (i.e., such as diminished capacity, which, if successful, would get Defendant convicted of a lesser offense, like voluntary manslaughter).  Where the successful pursuit of a defense will only mitigate the level of guilt, and undermine a potentially exculpatory defense, the decision of which defense to take up lies with the defendant.

Here, the decision to pursue a diminished capacity defense had this result, as it undermined Defendant’s pursuit of a self-defense theory.  In Vermont, self-defense requires that an individual’s perception of a threat be “reasonable,” but the very argument made in support of the diminished capacity defense was that Defendant was delusional and could not accurately perceive the level of threat that Neighbor posed.  In other words, the delusional disorder made the Defendant act unreasonably, which—if believed by the jury—would eliminate any hope of a successful self-defense argument.  The decision whether to pursue a diminished capacity defense thus lies with a defendant. 

Message to the trial court: let this defendant do as he sees fit in his defense or there will be a fourth trial.

In the end, the SCOV’s decision is to reverse and to make the State try Defendant for a third time.  But, oddly, it was only repeated disagreement between Defendant and his lawyer—over whether to confront Morrow or whether to present a diminished capacity defense—rather than any disagreement with the State, that created the two errors addressed by SCOV’s opinion.  The lesson for criminal defense lawyers: When an issue implicates a fundamental right or could possibly inhibit the presentation of a completely-exculpatory defense, defer to the wishes of your client despite any strategic misgivings you might have.  (Or … don’t defer and get your client’s conviction reversed on appeal.)

The lesson for the rest of us: Be kind to your neighbors, especially the armed ones.


  1. Dr. Paul Morrow (whose wife is an attorney) is the Dr. Morrow to whom you are referring.

  2. Ah, thanks a lot for this lengthy and informative post! I enjoyed reading in detail your article. Keep posting! :D
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