State v. Briggs

• Citation: 568 A.2d 779,152 Vt. 531
• Decision Date: 22 September 1989
• Docket Number: No. 87-193,87-193
• Parties: STATE of Vermont v. Larry BRIGGS.
• Court: United States State Supreme Court of Vermont

Page 779

568 A.2d 779

152 Vt. 531

STATE of Vermont v. Larry BRIGGS.

No. 87-193.

Supreme Court of Vermont.

Sept. 22, 1989.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Carlyle Shepperson of Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Defendant appeals a jury conviction of burglary. We affirm.

On October 20, 1985, David Learned returned from a brief out-of-town trip to discover that his home in Montpelier had been burglarized. Missing from the house were a number of firearms, a car, and a safe containing money and jewelry. Investigators discovered a broken window in a second-story bedroom, with a doghouse dragged to a position immediately underneath it. They also found large-sized footprints in the driveway and at the rear of the house.

The victim suspected the involvement of Eleanor Casey, a former girlfriend who had lived with him for six months. At the time of the burglary, Ms. Casey was living with defendant in an apartment in Montpelier. When questioned the day after the burglary, Ms. Casey denied any knowledge of it.

Shortly after the burglary, two confidential informants reported to the police that defendant had shown them weapons similar to those stolen from Mr. Learned's house. After a search of Ms. Casey's and defendant's apartment yielded items missing from the victim's house, they were both arrested and charged with receiving stolen property on October 26, 1985. ¹

After she was arrested, the State offered Ms. Casey total immunity from prosecution for the offense in exchange for her truthful testimony as to the burglary, on condition that she take a polygraph examination and provide the police with a sworn written statement. Ms. Casey then stated that she alone had committed the burglary.

On December 4, 1985, defendant attempted to depose Ms. Casey. After invoking her Fifth Amendment right against compulsory self-incrimination, she refused to testify. On January 10, 1986, the State deposed her. At this deposition, the state's attorney offered Ms. Casey use immunity and agreed to dismiss the charges against her without prejudice. Under oath, Ms. Casey testified that not only did she not commit the burglary, but she knew nothing about it.

Three months later, the State again offered Ms. Casey total immunity for any involvement in the burglary of the Learned house. The agreement, which was in writing, provided that upon Ms. Casey's full cooperation in providing "a true and accurate account" regarding the property theft and her taking a polygraph examination, she would be immune from prosecution as to any crime related to the burglary, and would also be immune from prosecution for perjury or false swearing in connection with any of her prior statements regarding the burglary. As with the other offers, Ms. Casey was advised that this offer did not grant her any type of immunity for false swearing or perjury committed in connection with the statements she was to give.

It was after this last offer of immunity that Ms. Casey implicated defendant, herself, and one Aldo Ciampi as having committed the crime. Mr. Ciampi eventually admitted his involvement, corroborating details given by Ms. Casey, and returned some of the stolen property which was still in his possession. On April 25, 1986, the charge of receiving stolen property was dismissed as to defendant, and the information against him was amended to reflect the charge upon which defendant was eventually convicted, burglary.

Prior to trial, defendant made numerous motions to suppress Ms. Casey's testimony on the ground that but for the grant of immunity, she would be an incompetent witness because of the allegedly perjurious testimony given to the police. Defendant's motions were premised on the conflicting nature of Ms. Casey's previous statements as well as a general claim that the immunity offers were unconstitutional. After a hearing, the trial court denied defendant's various motions, finding that Ms. Casey's conflicting statements did not render her an incompetent witness, since 13 V.S.A. § 2907 prohibits testimony only by a person actually convicted of perjury. Further, the court concluded that the offers and grants of immunity were within the prosecutor's discretion and did not violate any of defendant's due process rights. Both the trial court and this Court denied defendant permission to take an interlocutory appeal.

After several other similar motions by defendant, with similar results, the case went to trial in late January of 1987. The State's witnesses were Ms. Casey and Mr. Ciampi, the burglary victim, and one of the investigating police officers. On January 30, 1987, the jury found defendant guilty. The court denied motions for a judgment of acquittal and a new trial, again made on the grounds that Ms. Casey's testimony was incompetent and perjurious. At the sentencing hearing in April, defendant moved again for a new trial, this time based on newly discovered "evidence," consisting of an anonymous handwritten letter addressed to the presiding judge purporting to exonerate defendant, as well as a letter from Ms. Casey requesting leniency for him. The motion was denied on the ground that the anonymous letter was speculative and unsupported, and that Ms. Casey's letter did not contain new evidence.

On March 10, 1988, after the present appeal had been filed, defendant made a third motion for a new trial. At a hearing held in late April, Ms. Casey testified under oath and without a grant of immunity that her testimony at trial had been untrue, and that the only people involved in the burglary had been herself and Mr. Ciampi. The court once again denied the motion for a new trial.

Defendant's appeal is based on three grounds. First, defendant contends that the offers of immunity to Ms. Casey violated his due process rights and denied him the right to a fair trial in violation of the Fourteenth and Sixth Amendments to the United States Constitution and Chapter I, Article 10 of the Vermont Constitution. Second, he claims the trial court erred in not granting his motion for a judgment of acquittal where the "only evidence linking him to the [crime] was the uncorroborated testimony of an accomplice which lacked reliability." Third, defendant contends that it was erroneous for the trial court to have denied his last motion for a new trial. We address each of these points in turn.

I.

Defendant's first ground for appeal raises the constitutionality of the use of immunity in the preparation for and prosecution of criminal cases by the State. Specifically, defendant contends that the State here manipulated one witness--Ms. Casey--into telling one version of the crime through offering her several grants of immunity. We find his arguments to be overbroad and unconvincing.

First, defendant claims that immunity cannot be given twice, since the language in the governing statute, 12 V.S.A. § 1664(a), refers only to "an" agreement. ² Common sense as well as past experience show the weakness of this contention. Clearly, immunity can attach to statements made at different times even if they relate to the same incident. We have found no case, for example, suggesting that where a conviction is reversed and a retrial is necessary, a previously immunized witness cannot be granted immunity as to testimony in the second trial; nor would such a rule comport with common sense. We will not interpret a statute in a way that would produce an absurd result. In re Knapp, 152 Vt. 59, ----, 564 A.2d 1064, 1067 (1989); In re R.S. Audley, Inc., 151 Vt. 513, ----, 562 A.2d 1046, 1049 (1989).

This appeal, however, does not even present a case of successive grants of immunity. The first offer of immunity, made immediately after the burglary occurred, never came to fruition, as the witness did not take the required polygraph examination. The second asserted grant of immunity, which occurred at the January 10, 1986 deposition, was aborted when Ms. Casey avowed that she had not committed the burglary and knew nothing about it. Immunity can be granted only insofar as a privilege against self-incrimination exists. Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1659, 32 L.Ed.2d 212 (1972) (the constitutional inquiry is "whether the immunity granted ... is co-extensive with the scope of the privilege"); State v. Couture, 146 Vt. 268, 273, 502 A.2d 846, 850 (1985). At the deposition, Ms. Casey's statement obviously did not subject her to any criminal liability and thus was not the proper subject of a grant of immunity.

Once again, and apparently in the belief that Ms. Casey's previous statements were untrue, the State attempted to gain Ms. Casey's cooperation by granting her immunity in April of 1986. This time, she gave a more complete account, in the process implicating herself, defendant, and one other accomplice in the burglary. Defendant disagrees with this version of Ms. Casey's story, and contends it was untrue, while one of her earlier statements was accurate.

Defendant contends in general that repeated offers of immunity can only produce perjured testimony. In so arguing, he alleges that, in this particular case, the statements made by Ms. Casey after the April 1987 offer of immunity were perjurious, since they conflicted with previous statements she had made when offered immunity. This, he argues, is a prime example of the principle that more than one immunity offer must produce perjury.

Stated simply, defendant argues that the series of immunity offers and grants added up to one conditional grant of immunity, which he defines as " 'plea agreements entered into by the accomplices [that are] so likely to induce perjurious testimony that to allow them ... would ... violate ... due process rights,' " quoting United States v. Dailey, 759 F.2d 192, 193 (1st Cir.1985).

We do not agree,...