 |
| This could be her elephant |
By Andrew Delaney
My buddy tells a particularly bad dad joke about a couple that’s getting divorced. The couple owns an elephant, but it was the wife who wanted, sought out, bought, and takes care of the elephant. In court, the wife refers to the couple’s elephant and a visitation schedule. The husband jumps up, and yells: “Objection, your honor! That’s her elephant!” Don’t get it? Say it out loud.
Relevance is important. It’s one of the threshold questions that a court must decide for every piece of evidence. In this case, the trial court decided before trial that certain evidence about the alleged victim’s truthfulness—in particular a false-information-to-a-police-officer (FIPO) conviction—was irrelevant and excluded it.
Mr. Larkin was charged with first- and second-degree aggravated domestic assault. The charges respectively stemmed from an alleged choking incident and an allegation that Mr. Larkin ordered complainant out of his car and left her by the side of the road (recklessly inflicting injuries).
Before trial, the State filed a motion in limine (Latin for “on the threshold”), which asked the court to make a pretrial evidentiary ruling excluding the complainant’s FIPO conviction and “violent behavior” conviction, pending probation violation charge, and substance-abuse and mental-health history. The trial court granted the motion with two exceptions: (1) that the FIPO evidence could be used to impeach complainant and (2) her conviction for simple assault could come into play if Mr. Larkin made a self-defense claim.
At trial, it became clear complainant wouldn’t testify. Mr. Larkin argued that the 911 call and statements to the police should be excluded because they were hearsay and violated his right to confrontation. The trial court let it all in because it reasoned the statements were made in response to an ongoing emergency and were “excited utterances.” If you haven’t suffered through a law school evidence class, “excited utterances” are statements made while under the stress or “excitement” of a recent event and are an exception to the hearsay rule because the rule-makers reason that these kind of statements are likely to be reliable.
Here's the short version of the evidence at trial. One night in December 2015, complainant attempted to rent a room at a motel but was denied because she was on the “do not rent” list. Whoa. I have questions. The opinion does not answer them.
A few minutes later Mr. Larkin rented a room. There was a noise complaint. The clerk called the room and someone—who sounded like complainant—apologized and said she’d dropped her suitcase. Later someone from the room called. The clerk heard the same female voice in the background crying and yelling. The clerk hung up and called back but there was no answer. The clerk walked outside and saw a female crying walking across the parking lot. The boots made a familiar clicking sound.
Then the Vermont State Police got a 911 call. Complainant made statements about Mr. Larkin—who she identified by name—kicking and punching her. Police were dispatched and found complainant in rough shape—her hair was disheveled, both of her eyes were black and blue, there was a bump on her forehead, and she had no shoes on.
The ambulance personnel testified about her physical appearance and also testified that she told them her boyfriend had strangled and hit her, then dragged her from a car, punching and hitting her.
After complainant went to the hospital, the police officers went looking for Mr. Larkin. He wasn’t at the motel room, but the room was a mess. The bathroom door was off its hinges and missing. Complainant later said Mr. Larkin had torn the door off its hinges and thrown it at her.
Mr. Larkin got picked up within an hour or two for DUI. He didn’t claim any injuries, though the police officer noted that his left hand looked swollen. Mr. Larkin testified and explained that he’d slipped and fallen the previous winter and often had discomfort due to a metal plate in his hand.
At the close of the State’s evidence, Mr. Larkin moved for acquittal. The trial court denied the motion. Mr. Larkin then attempted to bring in the FIPO conviction. The State argued that it couldn’t be brought in because complainant hadn’t actually testified. The trial court let the State have the cake and eat it too (that’s my color commentary just in case there’s any confusion).
Mr. Larkin testified and admitted to having pushed complainant out of his car and then having exited the car and pushed her hard enough that she fell. He explained this was so he wouldn’t run her over when he left her on the side of the road.
The jury acquitted Mr. Larkin on the motel-room-related first-degree charge, but convicted him on the side-of-the-road second-degree charge.
Mr. Larkin appeals.
First, there’s a scuffle over whether Mr. Larkin cited the right rule to preserve the impeachment-with-the-FIPO-charge issue for appeal. Here the State argues that because Mr. Larkin didn’t cite the correct rule, SCOV must limit its review to plain-error analysis. But the SCOV majority concludes that the argument was clear enough to preserve the issue, even if Mr. Larkin’s counsel cited Rule 609 rather than 806. Rule 806 allows attack on a hearsay declarant’s statements as “if declarant had testified as a witness” and that’s clear enough—while it’s not an explicit reference to Rule 609, it plainly incorporates it.
The majority notes that its standard of review on evidentiary rulings is deferential. Usually the defendant would bear the burden of showing that the trial court’s exclusion was error. Here, however, the State concedes that point (though as discussed above, this was probably because the State was taking the position that the error did not rise to the level of plain error).
Because of this, it’s the State’s burden to show that the error was harmless. And that means SCOV would have to be able to conclude beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error. The majority does not conclude so here. There are two considerations for the Court to balance: (1) the strength of the State’s case; and (2) the strength of the excluded evidence.
Here, the majority reasons the State’s case was comparatively weak. In the majority’s view, this came down to a he-said-she-said situation. Because of this, the excluded evidence was highly relevant—as it went to complainant’s truthfulness—and relatively strong. Because credibility was the main issue here, the evidence of a FIPO conviction (just four months before the alleged assault) was a big deal.
The majority points out that the dissent’s reasoning—that the State provided “overwhelming direct evidence of complainant's physical injuries and very strong circumstantial evidence that defendant caused the injuries, all of which corroborated complainant’s statements”—is flawed. This is because the jury apparently didn’t believe the complainant about what happened in the motel room but for some reason found enough to convict on the side-of-the-road stuff.
Thus, the trial court’s exclusion of the evidence was not harmless and Mt. Larkin gets his conviction reversed. He also gets a new trial.
Chief Justice Reiber—joined by Justice Carroll—dissents. While the dissent agrees that the trial court erred in excluding the evidence and with the analytical framework, the dissent disagrees with the majority that the State’s case was weak and that the excluded evidence was highly significant. Due to this contrary view, the dissent would find harmless error and affirm.
Comments
Post a Comment