State v. Bailey, 82-329

Docket NºNo. 82-329
Citation475 A.2d 1045, 144 Vt. 86
Case DateJanuary 27, 1984
CourtUnited States State Supreme Court of Vermont

Page 1045

475 A.2d 1045
144 Vt. 86
STATE of Vermont
Robert "Sonny" BAILEY.
No. 82-329.
Supreme Court of Vermont.
Jan. 27, 1984.

Page 1047

[144 Vt. 90] John J. Easton, Jr., Atty. Gen., and Robert V. Simpson, Jr., Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Nancy E. Kaufman, Montpelier, for defendant-appellant.

Before [144 Vt. 86] BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

[144 Vt. 90] GIBSON, Justice.

Defendant was convicted after trial by jury of two counts of sexual assault in violation of 13 V.S.A. § 3252(3). His appeal from the judgment of the District Court, Unit No. 2, Chittenden Circuit raises four issues: (1) whether the prosecution's failure to produce certain evidence was a

Page 1048

denial of defendant's due process right to a fair trial; (2) whether the prosecutor's failure to elect the specific offense upon which it sought conviction for sexual assault was error; (3) whether the prosecutor's final argument to the jury denied defendant his right to a fair trial; and (4) whether his counsel's written waiver of jury sequestration was effective absent defendant's personal consent. We affirm the judgment of the district court.

Defendant was found guilty of engaging in sexual acts with a person under the age of sixteen to whom he was not married. 13 V.S.A. § 3252(3). A "sexual act" is defined in 13 V.S.A. § 3251. The alleged acts occurred on the afternoon of December 19, 1981, during a one-and-one-half-hour period in defendant's apartment. After the alleged incidents occurred, the complaining witness, a twelve-year-old girl, was taken to a hospital for a physical examination. A test administered immediately showed the presence of no motile (live) sperm. A "rape kit" consisting of clothing worn by the complainant and specimens of oral and vaginal secretions was also assembled by the hospital and given to the police for further testing by the police crime laboratory. Law enforcement officials obtained a warrant[144 Vt. 91] for a search of defendant's apartment. Two days after the incident the police seized sheets and blankets from defendant's bed as well as several other items of evidence.

In response to a pretrial discovery order, the State sent a supplemental discovery letter on January 8, 1982, which listed the following evidence in its possession: clothes collected from the complaining witness by police and hospital personnel, the rape kit, assorted bed linens, other items taken from defendant's bedroom and reports of medical personnel. On April 27, 1982, however, the State sent another supplemental discovery letter that failed to list any tangible evidence. In response to repeated requests, defense counsel was continually assured by the state's attorney's office that tests were being conducted upon these items and results would be forthcoming. On Friday, April 30, 1982, defense counsel was apprised that the State did not know where the tangible evidence was, whether any tests had in fact been made or where the results were located.

On the following Monday, during a pretrial conference, the defense moved to dismiss. In its motion and during oral argument on the record, counsel contended that defendant was prejudiced by the State's failure to conduct testing calculated to show the presence of sperm and other substances on the seized bedding. Evidence contained in the sealed rape kit assembled at the hospital was similarly untested. Defendant maintains this failure is prejudicial because the motile sperm test conducted at the hospital was negative, and therefore these tests too were presumably negative and exculpatory. During the pretrial conference, the trial court stated that "there is [no] requirement that the State has to do certain tests," that defendant's unauthorized departure from the jurisdiction during the bail period contributed to the lack of testing and that any further evidence resulting from testing of the sheets was too remote to be clearly exculpatory. The court believed that testimony of the attending physician establishing the lack of motile sperm one and one-half hours after the incident was all the evidence the defense was "entitled to have that could possibly be exculpatory." That same morning, defense counsel was informed that the other evidence was not lost but was in physical custody of the police--no tests, however, had been conducted.

[144 Vt. 92] The motion to dismiss was denied and the case proceeded to trial on Tuesday, May 4, 1982.


Defendant first argues the state's attorney negligently failed to preserve and furnish potentially exculpatory evidence required by the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires a prosecutor to disclose

Page 1049

"evidence favorable to an accused ... where the evidence is material either to guilt or to punishment ...." Id. at 87, 83 S.Ct. at 1196. Vermont Rule of Criminal Procedure 16(b)(2) has codified the Brady rule and requires the disclosure of material that "tends to negate the guilt of the defendant ... or would tend to reduce his punishment therefor." V.R.Cr.P. 16(b)(2), Reporter's Notes. Suppression of such exculpatory evidence is a violation of the Due Process Clause of the Fourteenth Amendment. Brady, supra, 373 U.S. at 86, 83 S.Ct. at 1196.


The State admits, at the outset, that representations were mistakenly made to appellant indicating test results were forthcoming, but maintains the evidence in question was not lost. Therefore, during the pretrial conference, defense counsel should have requested a continuance in order to carry out the tests it desired. This failure, the State argues, is tantamount to a waiver.

Although defense counsel vigorously pursued its pretrial motion to dismiss based upon the unavailability of the test results and moved for a judgment of acquittal based upon this argument at the close of the State's case, a continuance was not requested. In response to an inquiry from the court, the parties expressed uncertainty as to whether some of the evidence held by the police was too old to test. Ultimately, however, the trial court decided that the defense had "everything [it was] entitled to have that could possibly be exculpatory," that it had not "lost anything" but had the "vital test; the one that shows no motile sperm." Defense counsel may have felt it futile to move for a continuance given the trial court's perceived opposition. We cannot now say, however, that such a motion, if made, would have been denied.

[144 Vt. 93] The granting of a continuance by the trial court is a matter of discretion. State v. Rickert, 124 Vt. 380, 382, 205 A.2d 547, 549 (1964). We have previously noted that in some situations it is counsel's responsibility to ask for a continuance, State v. Richards, 142 Vt. 16, ---, 470 A.2d 1187, 1190-91 (1983) (counsel failed to accept court's offer for a continuance when confronted with newly discovered evidence); State v. Dezaine, 141 Vt. 335, 338, 449 A.2d 913, 914 (1982) (a continuance should have been sought to locate a witness and to obtain his testimony). This responsibility exists even though counsel may feel the motion will not be successful.

Although counsel should have moved for a continuance if he wished the materials tested, in light of all the circumstances, we cannot say the defense waived its right to argue this alleged violation of Brady v. Maryland on appeal. Cf. United States v. Millet, 559 F.2d 253, 256-57 (5th Cir.1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 759 (1978) (government failed to deliver Brady material but defendant waived right to complain by failing to ask for a continuance, to request the trial judge to consider the matter, to object during trial or to take any action at all until after the trial had concluded). Unlike the situation in State v. Mecier, 138 Vt. 149, 156-57, 412 A.2d 291, 296 (1980), this is not a case in which the defendant failed to bring the discovery issue to the attention of the trial court. We, therefore, will address the merits of defendant's argument.

Although the evidence in this case is not actually lost, the State concedes it is responsible for the fact that no tests were conducted during the four-month period prior to trial. Test results were not available for trial and, therefore, we will treat the omitted evidence as lost.


The State also argues that because the testing was never done it is impossible to know whether the results would be exculpatory; because they have not been deemed exculpatory, they are not subject to Brady disclosure.

Page 1050

When evidence has been lost or remains untested "there is often no way for a defendant to ascertain the true extent of its exculpatory nature." State v. Vaster, 99 Wash.2d 44, 52, 659 P.2d 528, 533 (1983). It may well be impossible for a criminal [144 Vt. 94] defendant to prove the exculpability of lost evidence, and such a requirement would not further the Brady duty to disclose. In an extreme case, a prosecutor would be able to suppress potentially exculpatory evidence by pleading its loss.

Were Brady and its progeny applicable only when the exact content of the non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal.

United States v. Bryant, 439 F.2d 642, 648 (D.C.Cir.1971) (Bryant I ). Therefore, when evidence is not available a defendant does not have to prove the evidence would be exculpatory but must show only a "reasonable possibility" that it would have been favorable. People v. Newsome, 136 Cal.App.3d 992, 1002, 186 Cal.Rptr. 676, 681 (1982); State v. Vaster, supra, 99 Wash.2d at 52, 659 P.2d at 532-33.

We find defendant has shown a reasonable possibility that further tests of physical evidence would be favorable to him. Tests done at the hospital showed the presence of no motile sperm, and there is a reasonable...

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