This case demonstrates just how the intricacies of the Rules of Evidence can trip up experienced litigators and trial court judges alike, yielding an inelegant and clumsy dance through the courts and, at times, a seemingly inefficient path towards justice.
The facts underlying this case involve a harrowing attempted kidnapping in which the victim was attacked by an unknown assailant, who physically assaulted her and tried unsuccessfully to force her into his pickup truck before fleeing the scene. Several eyewitnesses observed the attempted kidnapping, and one was able to offer a somewhat-vague description of the assailant and confirm that the truck had Vermont license plates.
Investigators were able to obtain video surveillance captured by the cameras of a public bus as it passed by the truck prior to the incident. Investigators showed the bus footage to the manager at a car dealership, who was able to offer a detailed description of the vehicle: “a light-colored Chevrolet one-ton dual-rear-wheel pickup truck with four doors, a flaring fender, a distinctive front bumper and headlights, and a contractor’s rack in the back.” Based on those details, he was also able to determine part of the truck’s VIN sequence, which information allowed police (with help from the Department of Motor Vehicles) to narrow their search to 20 vehicles in the state. After interviewing a number of the other truck owners, investigators further narrowed the pool down to one suspect, who was charged with attempted kidnapping, aggravated assault, and unlawful restraint (however, only the kidnapping charge stuck).
After a first trial ended in a hung jury and a mistrial, a second jury trial reached a guilty verdict and the trial court handed down a prison sentence of 30 years to life.
Ten of the truck owners eliminated as suspects in the course of the investigation testified at the second trial. However, five other drivers did not testify; instead, the investigating officers testified about how they eliminated the other owners based on facts learned in their out-of-court interviews.
Ordinarily, out-of-court statements offered as evidence to prove a factual issue at trial are considered “hearsay,” which cannot be admitted as evidence unless it fits into one of several exceptions set forth in the Rules of Evidence. However, in order to keep such evidence out, the defense is required to object to it at the time the evidence is offered (or by motion made ahead of time in anticipation of the evidence, but that’s a lesson for another day). Making an objection is also required to preserve the issue: without an adequate objection, it cannot be reviewed on appeal.
A related evidentiary objection is one that arises under Vermont Rules of Evidence (“VRE”) 602, which requires witnesses to have personal knowledge as to the facts to which they are testifying.
At trial, defense counsel moved to exclude officers’ testimony on the basis that it was what was reported to them, and that the officers were “acting as a substitute” for the truck owners who were not there to testify themselves. Defense counsel renewed the objection as to each investigator who testified as an “objection based on hearsay.”
Although the trial court ruled that the state was prohibited from eliciting hearsay as to what the out-of-court owners had said to the officers outside of court, it also determined that investigators could testify as to what they learned from those owners. This ruling basically meant that while an officer could not tell the jury that Owner #3 told her that his truck had been elsewhere on the day of a crime and therefore he could not have done the deed, the officer could testify that she had ruled Owner #3 out as a suspect after learning that Owner #3’s truck had been elsewhere on the day of the crime.
The first question on appeal was whether the defense counsel’s objections — which had generally been articulated as objections to hearsay — were sufficient to preserve for appeal the different issue of admissibility under VRE 602. The SCOV finds that they were.
According to the SCOV, the two evidentiary issues in this case are related. Referencing decisions in other jurisdictions in which various courts had found a hearsay objection adequate to preserve an admissibility issue that might more precisely be said to arise under VRE 602, the SCOV finds that it would have been clear from the conversation surrounding the objection that it was directed not only to the hearsay statements, but also to the issue of whether the conclusions reached in the course of the investigation were derived from the investigators’ personal knowledge.
Finding the evidentiary issues to be preserved for appeal, the SCOV then turns to the substance of the defendant’s admissibility arguments.
In determining the effect that an evidentiary error will have on appeal, the SCOV must also analyze whether that error was prejudicial to the defendant. If there is no prejudice, an appellate court may conclude that the error is harmless, and the verdict may stand.
Under VRE 602, the party seeking to bring in evidence must introduce sufficient evidence to establish that the witness has personal knowledge of the matter or the testimony will be excluded. The information the investigating officers relied on in eliminating the non-testifying owners as suspects was solely derived from what the owners told them, and this information was not independently admissible under a hearsay exception or any other evidentiary rule.
The SCOV rules that allowing the investigators to testify as to substantive information learned from the out-of-court owners’ statements violated the personal-knowledge requirement by disguising hearsay statements as the officers’ own conclusions — in other words, the officers could not use hearsay statements as the basis for asserting that they had personal knowledge of the evidence.
The SCOV rounds out its conclusion with a discussion of the reason the Rules of Evidence generally exclude the substance of out-of-court statements: there is no opportunity test the credibility of the person who made the statement through cross-examination or any other method. Where testimony is offered to prove a fact observed not by the witness on the stand but by the out-of-court declarant, a court should not allow the testimony to come in.
Accordingly, the SCOV concludes that the officers’ testimony as to the information received from the non-testifying owners should have been excluded because the officers had no basis of personal knowledge for the information. The State should have brought each of the other truck owners in to testify in person at trial, but had instead attempted to rely on fuzzy evidentiary logic to get in that same information.
In determining the effect that an evidentiary error will have on appeal, the SCOV must also analyze whether that error was prejudicial to the defendant. If there is no prejudice, an appellate court may conclude that the error is harmless, and the verdict may stand. If such prejudice does exist, then the verdict may be reversed. For the error to be considered harmless, the SCOV must be able conclude beyond a reasonable doubt that the defendant would have been convicted even if the improper evidence had not been admitted.
Given the centrality of the evidence to the State’s case, and the fact that no other evidence admitted at trial “closed the circle” on whether the truck captured in the bus camera footage might have belonged to someone other than the defendant, the SCOV concludes that the admission of that evidence was prejudicial, and therefore reversible error.
The next issue raised by defendant was eyewitness identification. In this case, the State called to the stand an eyewitness who neither saw the assailant’s face nor was able to offer a detailed description of the perpetrator immediately after the incident. After seeing the defendant on television, the eyewitness later told detectives that he was sure it was their guy. On appeal, defendant asserts that the identification was not found to be reliable and violated his due process rights under the Vermont Constitution. He also asserts that any probative value the testimony might have had was outweighed by its prejudice to the defendant.
A suggestive eyewitness-identification procedure may be found to be inadmissible as a violation of due process when it is unnecessarily suggestive unless the court can also find that there are sufficient other indicators that the identification was reliable; for example, that the witness had a good opportunity to see the defendant at the time of the crime or had previously provided the police with an accurate description.
However, the SCOV opines that contrary to the defendant’s argument on appeal, the standard has only ever applied where law enforcement actually arranged the identification, and not where, as here, the witness volunteered the identification upon independently viewing a photo of the defendant. As defendant did not offer any basis for extending the due-process analysis to circumstances in which police did not arrange for the identification, the SCOV leaves this argument hanging.
The SCOV also decides that the trial court did not abuse its discretion in determining that the prejudicial effect of the identification did not outweigh its probative value. In particular, the SCOV finds that the trial court adequately considered the issue and appropriately limited the scope of how the evidence could be presented and considered by the jury. As such, the trial court’s decision was not “unreasonable or untenable” and therefore stands.
Defendant next argues that the trial court should have dismissed the case because the State failed to test certain physical evidence that was potentially exculpatory to the defendant.
The SCOV concludes that while the State certainly has the obligation to disclose to the defense any exculpatory evidence within its possession, this does not necessarily impose on police an obligation to collect any and all evidence that is potentially favorable to a defendant, and that the failure to do so is not the equivalent of losing or destroying exculpatory evidence so as to expose the State to sanctions.
The SCOV acknowledges that there could be certain situations in which negligent police conduct might be prejudicial enough to warrant sanctions, but determines that the defendant would still have to show a reasonable probability that the evidence would have been favorable. The SCOV finds that the trial court appropriately applied the test applicable under such circumstances, by weighing the degree of negligence, the importance of the lost evidence, and other evidence of guilt at trial. Ultimately, the SCOV declines to review the trial court’s determination on this point, because the evidence of the defendant’s guilt would likely be different in the event of a third trial.
Finally, the SCOV concludes that the trial court had erred in excluding testimony from a defense expert on police evidence-gathering methods because, as the trial court found, it was not relevant. The expert testimony was offered to demonstrate to the jury the gravity of the police failure to gather the potentially exculpatory physical evidence and, although the SCOV finds that the offered testimony was relevant, it declines to rule on whether the evidence was otherwise admissible.
A fine day’s work for the defense: the SCOV reverses and remands the case. Ready for trial number three?