Friday, October 17, 2014


State v. Felix, 2014 VT 68

By Elizabeth Kruska

If cleanliness is next to godliness, then truthfulness must be right up there, too. When witnesses go to court to testify they raise their right hands and swear to tell the truth, so help them God.

All we have when witnesses swear to say what’s true is their oath that what they’re saying is true. But sometimes witnesses don’t exactly have truth-telling as a high priority. (Ha! Puns! See below.) You see, people will sometimes choose to say something other than what’s true if it means serving his or her own ends. How many kids have told their parents they’re going to the library when they’re really off to do something infinitely more fun? (Answer: all of them)

Sometimes the truth is far more serious though, like in a felony trial when the only people who know what happened are the defendant and a witness. That’s what happened in this case.

Tiffanie Felix was convicted of one felony count of sale of heroin after a jury trial. As the story goes, Tiffanie sold $150 worth of heroin to a confidential informant (CI) at her apartment. The CI didn’t have any undercover police with her and didn’t wear any kind of wire when she went in to the apartment. She went in with money from the police, the police lost sight of her while she was inside, and a few minutes later she came out with no money but with heroin. She turned over the heroin to the police.

The police wanted to use that first buy as a basis to get a wire warrant so they could send in the CI to do another buy and record it. However, before they could do that, the CI got fired from her CI position.

For those unfamiliar with CI’s, they could be just about anyone. A CI could be someone who wants to get consideration for criminal charges. A CI could be someone getting paid to do the task. A CI could just be a random citizen who wants to help the police. In any case, the CI makes a contract with the police setting forth the terms of the agreement, and is instructed on what to do and not do while engaging in controlled buys. Police have to be able to trust that their CI’s are actually doing what they’re supposed to do, and aren’t stealing money or using the drugs they buy from their targets. If there’s no recording or other witness to the transaction, the only word the police have about what happened during the drug sale is the word of the CI. In other words, the CI has got to be truthful.


The CI in Tiffanie’s case turned out to be less than truthful. Several weeks after she did the buy at Tiffanie’s house, she got pulled over during a traffic stop. The Trooper found 34 bags of heroin in the car. She told the Trooper who stopped her that she was in the middle of a Drug Task Force controlled buy.

As it turns out she wasn’t in the middle of a controlled buy. The Task Force detective didn’t know anything about what she was doing that night, and certainly wasn’t happy to learn that she (a) was driving around in a car with heroin in it and (b) lied about doing a controlled buy. As a result, she was terminated as a CI. This was bad for business for her, because the reason she was a CI was to get a more favorable deal in a criminal case of her own. She did plead guilty to the charge against her and got a deferred sentence. A deferred sentence is where someone pleads to a charge and isn’t sentenced, but is placed on probation with conditions to fulfill. If the person successfully fulfills the conditions, the charge is expunged from the person’s record. One of the conditions here was that the CI had to testify truthfully in Tiffanie’s criminal case.

Tiffanie’s case came due for trial, and the CI testified. Tiffanie’s lawyer really wanted the jury to learn that the CI wasn’t truthful; that was the heart of the case. Only Tiffanie and the CI knew what happened during the alleged controlled buy, and nobody can make Tiffanie testify to say what did or didn’t happen. If the CI looks like she isn’t credible, that goes a long way in Tiffanie’s favor. Tiffanie wanted to introduce evidence that the CI was trying to work off her own charge and in the course of being the CI, actually got fired for lying.

The State, unsurprisingly, didn’t want the jury to know about this. The State’s whole case was based on the CI’s credibility, and with the events that unfolded, her credibility was pretty much shot.

The Court said that Tiffanie could question the detective about the CI being terminated, and could ask the CI herself about the traffic stop in question. The court ruled that the detective wasn’t allowed to talk about what happened during the traffic stop because it was hearsay. Although the defense lawyer tried several times to get into the reason for the CI’s termination, the State objected every time.

The CI testified. She said that the reason she stopped working as a CI was because she “felt uncomfortable” doing it. When she was asked about lying about being in the middle of a controlled buy during a traffic stop, she was hedgy and said there must have been a misunderstanding. Since the Rules of Evidence do not allow for impeachment with extrinsic evidence, that meant Tiffanie couldn’t call the detective or the Trooper who stopped the CI to say what actually happened during the traffic stop. In other words, they were stuck with the answers they got.

Tiffanie was convicted, and appeals.

SCOV takes a look at what happened here and reverses and remands for a new trial.

First of all, yes, it’s entirely possible that what the Drug Task Force detective learned from the State Trooper who stopped the CI is hearsay. If it’s hearsay, it’s not admissible. But, it could have been admitted as evidence not of what happened during the traffic stop, but as evidence of what the detective did as a result of learning about the traffic stop. It’s the phenomenon called the “effect on the listener.” It doesn’t mean that what happened during the traffic stop was true, it just means that as a result of the detective hearing about the traffic stop that there was an effect on him, which was to terminate the CI’s contract. SCOV seems to agree and says that the truth of what happened during the traffic stop is less important than what happened as a result.

SCOV also reminds us that the Sixth Amendment (and Chapter I, Article 10) allows for confrontation, and that a big part of confrontation is cross examination. Even though the trial court judge acts as a referee and can put reasonable limits on cross examination, a defendant is allowed to get into areas of inquiry that would show a witness’s bias or motive.

Here, Tiffanie tried to argue that the CI had tons of motivation to lie. She lost her gig as a CI and now had to protect her deferred sentence by testifying against Tiffanie. SCOV is not convinced this is the best argument.

SCOV was convinced, though that the jury really only heard a skewed story of what went on, and that was not okay. Although the jury heard about all the steps a detective takes to ensure truthfulness and compliance, it never heard that the CI didn’t comply with her contract. All they heard was that the contract ended and that the CI “felt uncomfortable” so she never called the detective back. This left a misimpression that the detective trusted her (because he said he wouldn’t sign up a CI he didn’t trust) but that it was she who called off the deal. This “skewed the narrative” and lent credibility to the CI where the whole case turned on her credibility.

SoSCOV reverses and remands.

Chief Justice Reiber, joined by Justice Crawford, dissents. He felt that given the record as a whole, the CI didn’t do herself any real favors when she testified. She was all over the place and gave hedgy answers. She also was clear that she knew Tiffanie and didn’t like her. She also said that she had to testify due to a condition of probation. The Chief Justice points out that at the time the CI got signed up for her gig the detective did trust her. It wasn’t until several weeks later that she was terminated for a wholly unrelated reason.

He also says that the defense lawyer should have asked the right questions to get the information they sought.

His thought is that the right to confrontation doesn’t include the right to introduce inadmissible evidence. The point could have been made that the CI was terminated due to her untruthfulness, and the fact that wasn’t elicited was harmless.

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