State v. Blair, 88-493
| Decision Date | 12 October 1990 |
| Docket Number | No. 88-493,88-493 |
| Citation | 155 Vt. 271,583 A.2d 591 |
| Parties | STATE of Vermont v. Gary L. BLAIR. |
| Court | Vermont Supreme Court |
M. Patricia Zimmerman, Windsor County Deputy State's Atty., White River Junction, for plaintiff-appellee.
Robert W. Katims of Martin & Paolini, Barre, for defendant-appellant.
Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ. DOOLEY, Justice.
Defendant, Gary L. Blair, was convicted by a jury of sexual assault pursuant to 13 V.S.A. § 3252(a)(1)(A). Defendant appeals, claiming two grounds for reversal: (1) that the trial court erred by failing to inquire further into the possibility of jury misconduct; and (2) that the court erred in excluding opinion testimony to demonstrate the victim's character for untruthfulness. Since we reverse defendant's conviction based on the trial court's exclusion of the opinion testimony, we do not reach the other issue raised by defendant.
The trial came down to a credibility contest between two prison inmates. The victim testified that he was sexually assaulted by defendant, his cell mate. He did not report the incident for several months. The incident occurred after lights out, late in the evening of February 1st and continuing into the morning of February 2, 1987. According to the victim, defendant threatened him with violence in order to induce him to engage in oral sex and, in fact, punched him and slammed him off cell walls leaving him bleeding and bruised. The only other witness for the State was the supervisor of security and operations at the Woodstock Correctional Center (WCC), who described the physical layout and operations at WCC and the victim's report of defendant's sexual assault upon him.
Defendant testified in his own behalf and denied that he had sexually assaulted the victim at any time. He also testified that the activity described by the victim would have been heard by other inmates and the guards. Another inmate, who had been the victim's cell mate in March of 1987, testified for the defense. He stated that activity in one cell could be overheard in surrounding cells and that the victim had never mentioned the incident to him.
The closing arguments reflect the credibility battle. The defense emphasized discrepancies between the victim's testimony in his deposition and at trial and that it was impossible for the events described by the victim to have occurred without being heard or seen by a guard. The defense also emphasized that the bleeding and bruises described by the victim should have been observed by a guard, if they were actually present, and that the victim delayed reporting the incident until he had a motive to obtain a transfer to another facility. The State's argument was that both the victim and his recitation of events was credible. The jury accepted the State's position.
The issue before this Court involves a State motion in limine to exclude the use of reputation and opinion evidence to show that the victim had an untruthful character "because such opinion and reputation evidence is neither trustworthy nor reliable." At the time of the motion, defendant's counsel had taken the deposition of a number of inmates at WCC, and the State's motion referenced deposition statements as the evidence it wished to exclude. After determining that there was not a sufficient period of time to develop reputation, because the WCC is a transient community, the court granted the motion prior to trial. Although defendant argued that opinion evidence is judged by different standards than reputation evidence, the State's argument clearly confused the two types of evidence. In granting the motion in limine, the court stated that there was insufficient time for the victim to develop a reputation in light of the nature of the correctional center "community." The court never mentioned that the motion also covered opinion evidence.
The evidence covered by the motion never came up at trial, and defendant used the testimony of only one of the inmates he had deposed. That testimony did not relate to the victim's character although the witness denied a statement attributed to him by the victim.
Defendant raised the evidence issue again in a motion for a new trial. Defendant's counsel more clearly focused on the difference between reputation and opinion evidence and the lack of a "community" requirement for the latter. The State again seemed to argue that there was no difference in the type of evidence used and that the court must find a "community" for both. The court's ruling again related solely to reputation evidence, categorizing defendant's argument as an "objection to the exclusion of reputation evidence." The court reiterated its holding that WCC was not a community of sufficient size, interest, duration and opportunity to observe to have formulated a trustworthy reputation about the victim and concluded that it had been correct in granting the motion in limine because "the reputation evidence was not reliable or trustworthy."
In this Court, defendant has abandoned his claim that he could have shown the victim's reputation for veracity, but argues that the court's ruling excluding testimony about a witness's opinion of the victim's veracity was error. The State's position here, different from that below, is that the opinion evidence was inadmissible because defendant failed to show it was based on personal knowledge of the witnesses involved.
Defendant's position is based on V.R.E. 608(a), which allows the character for truthfulness of a witness to be attacked by opinion testimony. 1 The evidence involved here clearly fit within the rule because the victim was a witness and it went solely to his character for truthfulness. The court's grounds for excluding the evidence, that it didn't meet certain foundational requirements for the victim to have a reputation, do not apply to opinion evidence. Weinstein summarizes the use of opinion evidence of character for truthfulness as follows:
Witnesses may now be asked directly to state their opinion of the principal witness's character for truthfulness and they may answer for example, "I think X is a liar." The rule imposes no prerequisite conditioned upon long acquaintance or recent information about the witness; cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principal witness.
3 Weinstein's Evidence p 608, at 608-25 (1988). Based on the description of the evidence in the State's motion in limine, it met this standard.
The State now argues that it didn't meet the requirements of the rule because the opinions of the persons who were deposed by the defendant were based on "conjecture, rumor, or other inadmissible evidence." We agree that the grant of a motion in limine cannot be a ground for reversal if the evidence excluded would not be admissible in any event and, thus, the evidentiary ruling is harmless. See State v. Griffin, 152 Vt. 41, 46, 563 A.2d 642, 645 (1989). We also agree that the court has discretion under V.R.E. 403 and 602 to exclude this kind of opinion evidence if "the witness lacks sufficient information to have formed a reliable opinion." 3 Weinstein's Evidence p 608, at 608-25-26. Even if we accept that we can consider only the depositions taken by defendant in making that evaluation, we cannot find the grant of the motion to be harmless. In general, the basis for an opinion is a matter for cross-examination, as Weinstein states. One of the inmates who gave a deposition stated that he heard the victim describe the alleged sexual assault upon him "and I stood up and I called him a liar because I knew that he was selling his ass and his mouth for cigarettes and he said that he never said that." He went on to state that he knew personally people with whom the victim had engaged in sexual acts in return for cigarettes. 2 We cannot find the evidence inadmissible on the ground the State alleges.
Nor can we find the exclusion of the evidence harmless beyond a reasonable doubt, the standard when an alleged evidentiary error is involved. See, e.g., State v. Goodrich, 151 Vt. 367, 377-78, 564 A.2d 1346, 1352 (1989). This was a credibility contest between the victim and the defendant. We can not say that a third party's opinion of the...
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State v. Corliss, 96-035.
...witness is admissible only to the extent it is relevant to the credibility of that witness. See V.R.E. 608(b); State v. Blair, 155 Vt. 271, 275 n. 1, 583 A.2d 591, 593 n. 1 (1990) (evidence of witness's character is relevant, if at all, if it relates solely to witness's character for truthf......
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State v. Madigan
...testimony of one of them essentially repeating her accusation against defendant, may have affected the verdict. See State v. Blair, 155 Vt. 271, 276, 583 A.2d 591, 594 (1990) (finding, in sexual-assault case that “was a credibility contest between the victim and the defendant,” that “[w]e c......
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State v. Haskins
...reputation for truthfulness was not harmless where witness's credibility was critical to State's case); and State v. Blair, 155 Vt. 271, 276, 583 A.2d 591, 594 (1990) (holding that where credibility of witness was at issue in sexual-assault case, Court could not say "that a third party's op......
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...of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”155 Vt. 271, 277, 583 A.2d 591, 594 (1990). We allowed review of the limine ruling in Blair because it met the standard of V.R.E. 103(a)(2). Id. In this case, the standar......