State v. Amidon

• Citation: 967 A.2d 1126,2008 VT 122
• Decision Date: 29 August 2008
• Docket Number: No. 07-403.,07-403.
• Parties: STATE of Vermont v. Seth AMIDON.
• Court: United States State Supreme Court of Vermont

967 A.2d 1126

2008 VT 122

STATE of Vermont v. Seth AMIDON.

No. 07-403.

Supreme Court of Vermont.

August 29, 2008.

Christina Rainville, Chief Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. SKOGLUND, J.

In this appeal, defendant argues that the trial court abused its discretion when it misapplied the law and ruled that statements made during the course of plea negotiations were admissible for impeachment purposes should he testify at trial. We agree that the ruling was error under Vermont Rule of Criminal Procedure 11 and Vermont Rule of Evidence 410. Defendant also claims that the trial court's ruling violated his privilege against self-incrimination and his rights to testify and to a fair trial. We reverse his conviction for sexual assault in violation of 13 V.S.A. § 3252(a)(1)(A) on rule grounds and do not reach defendant's constitutional claims.

¶ 2. The relevant facts are as follows. Defendant was charged with sexual assault for having nonconsensual sexual intercourse with the victim in July 2006 at her apartment in Bennington, Vermont. Defendant and the victim were friends who regularly had sexual intercourse with one another over the course of several years. At the time of his arrest, defendant admitted having sexual intercourse with the victim on the date in question, but claimed that the sex was consensual.

¶ 3. Defendant entered a plea of not guilty at his arraignment. Subsequently, defendant reached a plea agreement with the State and executed a Notice of Plea Agreement setting forth its terms. After engaging in a full colloquy with defendant, the trial court accepted his plea, finding it to have been knowingly and voluntarily made. The court ordered that a presentence investigation (PSI) report be conducted, and reserved its decision as to whether to accept the sentencing recommendation in the plea agreement until after reviewing the report.

¶ 4. In the course of conducting the PSI, an officer from the Department of Corrections conducted a taped interview of defendant. The officer asked defendant about what happened on the date of the alleged incident. The PSI report contains the officer's version of what defendant said in reply:

I . . . started kissing her and stuff like that. One thing led to another and she basically told me that she did not want to have sex with me. I never physically harmed her or nothing like that. She just kept telling me no, she didn't want to have sex with me. I didn't take no for an answer. That's how it ended up. . . .

(Internal quotation marks omitted.) The PSI report was filed with the trial court in March 2007. After reviewing the report, the trial court declined to accept the recommended sentence, and defendant was allowed to withdraw his guilty plea.

¶ 5. The case was scheduled for a jury trial. Before the case went to trial, the State notified defense counsel of its intention to use statements defendant made in the recorded PSI interview in its case-in-chief as well as to impeach defendant should he take the stand and testify that the victim consented to the sexual intercourse. A dispute arose between defendant and the State as to whether either use was permissible, and the trial court held a hearing to settle the question in limine.¹

¶ 6. At the hearing, the State argued as follows:

I think just the details of the confession are important. . . . In the tape recorded confession, the defendant says, I think a total of five times, that she said no, she said no, and I would not take no for an answer. It's an absolute clear confession said five times over the course of the tape. It would be extremely important and relevant for our case whether if for impeachment, or the case in chief, because this is a case involving consent and it is an absolute confession. . . . [I]t goes to the very heart, the very crux of the case. . . .

Defendant argued that statements made in connection with a plea agreement were inadmissible under V.R.Cr.P. 11 and V.R.E. 410. Defense counsel agreed that the admission of defendant's statements in the State's case-in-chief would be "devastating," and argued that to allow the statements to be admitted for purposes of impeachment would have "a chilling effect" on defendant's decision whether to testify. Initially, the trial court ruled that the statements were not admissible either in the State's case-in-chief or for impeachment. However, after reviewing our decision in State v. Brunelle, 148 Vt. 347, 534 A.2d 198 (1987), the court modified its decision, ruling that the statements could be used for impeachment "if the defendant were to testify and during direct examination specifically contradict[ ] such statements and such statements bear directly on the elements of the charged offense." The court further opined that "[the] statements would certainly seem to be impeaching evidence for [defendant] to testify that it was consensual."

¶ 7. At trial, the State called two witnesses—the victim and the investigating officer. The State did not offer any evidence of defendant's PSI statements. Defense counsel cross-examined the State's witnesses, but defendant did not present any evidence of his own, nor did he testify. Rather, at the close of the State's case, defendant renewed his objection to the court's in-limine ruling and rested his case. The jury convicted defendant as charged, and this appeal followed.

¶ 8. As a threshold matter, we reject the State's argument that the record is insufficient for appellate review because defendant did not open the door to the impeachment evidence by testifying. The State relies on Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), for this position. In Luce, the defendant—who had been indicted on charges of conspiracy and possession of a controlled substance with the intent to distribute—had moved in limine for a ruling precluding the use of a prior conviction for possession of a controlled substance to impeach him should he elect to testify. Id. at 39, 105 S.Ct. 460. The trial court ruled that the defendant's prior conviction fell within the category of permissible impeachment evidence under Federal Rule of Evidence 609(a) and could be used to impeach the defendant in the event that he took the stand and denied any prior involvement with drugs. Id. at 39-40, 105 S.Ct. 460. The defendant chose not to testify, was convicted, and appealed, arguing that the in-limine ruling was an abuse of discretion. Id. at 40, 105 S.Ct. 460.²

¶ 9. On review, the Luce Court noted that, had petitioner testified and been impeached by evidence of a prior conviction, the trial court's decision to admit the impeachment evidence would have been reviewable on appeal along with any other claims of error. Id. at 41, 105 S.Ct. 460. Because defendant declined to testify, however, the Court held that appellate review of the trial court's F.R.E. 609(a)(1) decision was unavailable. Id. In doing so, the Court was guided by two major concerns.

¶ 10. The first of these concerns was the extent to which "reviewing court[s][are] handicapped in any effort to rule on subtle evidentiary questions outside a factual context." Id. The Court reasoned that F.R.E. 609(a)(1) decisions are based on a fact-specific balancing of the conviction's probative value against its prejudicial effect, and that this balancing in turn depends on the specific nature of the testimony that triggers use of the conviction. Id. Without hearing the defendant's testimony, the Court continued, the trial court cannot adequately perform that balancing test, and a reviewing court similarly cannot evaluate the trial court's performance. Id.; see also id. at 43,105 S.Ct. 460 (Brennan, J., concurring) ("The careful weighing of probative value and prejudicial effect that Rule 609(a) requires of a district court can only be evaluated adequately on appeal in the specific factual context of a trial as it has unfolded.")

¶ 11. The Court was also concerned with the difficulty of determining, in the F.R.E. 609(a) context, whether the trial court's ruling actually harmed defendant. Id. at 41, 105 S.Ct. 460. Stressing the fact that in-limine rulings under 609(a)(1) are subject to change as the factual context unfolds throughout trial, the Court dismissed as speculative any possible harm flowing from the initial in-limine ruling. Id. at 41-42, 105 S.Ct. 460. The Court concluded that it would be a matter of conjecture whether the defendant would have testified absent the adverse ruling, whether the trial court would have admitted the impeachment evidence, or whether the government would even have sought its admission. Id. at 42, 105 S.Ct. 460. Finally, the Court noted that, if the defendant did not testify, a reviewing court would be hard put to make a determination as to "the impact any erroneous impeachment may have had in light of the record as a whole," id., or—in other words—whether any error was "harmless."

¶ 12. We have thus far neither expressly adopted nor rejected Luce, at least in the context of the preservation of nonconstitutional claims. See State v. Martin, 2007 VT 96, ¶ 47, 182 Vt. 377, 944 A.2d 867 (declining to reach preservation question under Luce); State v. Keiser, 174 Vt. 87, 98-99, 807 A.2d 378, 388 (2002) (citing our decision in State v. Koveos, 169 Vt. 62, 732 A.2d 722 (1999), as "similar [to] that reached in Luce," but declining to follow a federal extension of Luce); State v. Setien, 173 Vt. 576, 577, 795 A.2d 1135, 1137-38 (2002) (mem.) (declining to reach preservation under Luce because record sufficient to no find error); State v. Emerson, 149 Vt. 171, 178 n. 2, 541 A.2d 466, 470 n. 2 (1987) (declining to address the applicability of Luce because the question was not argued or briefed by the parties); Brunelle, 148 Vt. at 356, ...