State v. Bruyette

• Decision Date: 10 January 1992
• Docket Number: No. 90-098,90-098
• Citation: 604 A.2d 1270,158 Vt. 21
• Parties: STATE of Vermont v. Joseph BRUYETTE.
• Court: Vermont Supreme Court

Page 1270

604 A.2d 1270

158 Vt. 21

STATE of Vermont v. Joseph BRUYETTE.

No. 90-098.

Supreme Court of Vermont.

Jan. 10, 1992.

James P. Mongeon, Rutland County State's Atty., Rutland, for plaintiff-appellee.

Robert Katims of Martin & Paolini, Barre, for defendant-appellant.

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

JOHNSON, Justice.

We decide today that, in a prosecution for sexual assault, evidence of a defendant's prior consensual sexual relations may be admitted, under V.R.E. 404(b), to show identity.

Defendant was tried by a jury for sexual assault, pursuant to 13 V.S.A. § 3252(a)(1)(C), and for burglary, pursuant to 13 V.S.A. § 1201. The evidence established that on April 21, 1987, at approximately 1:00 a.m., defendant forcibly entered the victim's apartment, threatened her with a razor-knife, threatened her infant son who was sleeping in a nearby room, and repeatedly forced her to perform oral sex, engage in sexual intercourse, and perform various degrading acts more particularly described below.

Although the victim was blindfolded throughout much of the ordeal, she provided the police with details that caused the investigation to focus on defendant. Later, defendant's girlfriend, who had read about the incident in the newspaper, provided the police with additional incriminating evidence. On April 27, the police obtained a search warrant to monitor and tape-record conversations between defendant and his girlfriend through a concealed transmitter. During one of the conversations, which took place inside a parked car on Route 7, in front of a restaurant, defendant made statements that police considered sufficiently incriminating to justify his immediate arrest.

Defendant was arraigned on April 28, 1991, before a district court judge, who found that probable cause supported the State's informations charging defendant with burglary, kidnapping, and sexual assault. He pled not guilty to the charges. Before trial, defendant moved to suppress the tape recorded conversations and certain physical evidence; these motions were denied by the trial court.

A central issue at trial was identity. To prove identity, the State introduced evidence indicating that defendant's prior distinctive sexual conduct with his girlfriend matched the aberrant sexual conduct in which the victim was forced to engage. Over objection, the girlfriend testified about specific sexual activities that she engaged in with defendant, specific words and phrases that he asked her to repeat, role-playing, bondage, illegal drug use during sex, and defendant's sexual fantasies about abducting a blonde woman, forcing her to use cocaine and to perform various sexual acts. The evidence was graphic and very specific. She testified:

[Defendant] was very into control. He liked to do role-playing, master-slave like. He [would] be the master and I would be the slave.... He would say things, he wanted me to talk dirty to him and when I wouldn't say the things that he thought I should say, he would tell me, repeat after me, tell me that you are my horny, little slut.... He used to like to say he wanted me to be his lady on the street and his whore at home....

She also detailed specific sexual practices that she engaged in with defendant. For example, she testified that defendant often used cocaine during sexual relations and would interrupt their sexual activity and leave to "get high." He would grab her hair and manipulate her head during oral sex and tell her that if she did not "do this right ... he was going to jam it so far down my throat that I would throw up and he would make me lick it up." Defendant also threatened her with anal sex.

The victim testified that her assailant repeatedly forced her to engage in oral sex and sexual intercourse. He blindfolded her, tied her up, and threatened her with anal sex. He also manipulated her head during oral sex by grabbing and pulling her hair. When she gagged and vomited during oral sex, he forced her to lick up her vomit. The victim was also forced "to say that I was his dirty slave and that he was my master ... [and] that I was a nasty slut ... [and] I would be his whore in the bedroom ... but when I was out in public I ... would look and act like a lady."

According to the victim, her assailant forced her to swallow cocaine, which she spit out. He interrupted his assault on several occasions to "get high." After several hours of repeated sexual activity, he left the apartment. The victim was then able to report the incident to the police.

The trial court held that the sexual conduct, statements, and fantasies described by defendant's girlfriend demonstrated a pattern that was "very close to the testimony of [the victim] as to what happened in her case ... [one that is] so idiosyncratic that with reasonable probability it points to the identity of the assailant ... [and] amounts to something like a signature." Thus, the court admitted the testimony to show the assailant's identity and to show that he had planned to commit the offenses.

Defendant alleges four errors below: (1) evidence of his prior consensual sexual activity with his girlfriend was erroneously admitted for the purpose of showing identity; (2) his motion to suppress his tape recorded conversations with his girlfriend should have been granted; (3) his conviction for a third sexual assault should be reversed because he was not properly arraigned on the charge, and because the charge was not supported by probable cause; and (4) certain physical evidence was illegally seized.

I.

A.

The first issue is whether evidence of defendant's prior consensual sexual conduct with his girlfriend, which was strikingly similar to the conduct perpetrated on the victim, is relevant and admissible to show identity. Defendant argues that this testimony was inadmissible under V.R.E. 404(b), that it was irrelevant, and that its prejudicial effect outweighed its probative value.

V.R.E. 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The rule operates to exclude evidence of prior acts that are similar to the charged crime, if the evidence is introduced for the purpose of showing a general propensity to commit the acts in question. See State v. Parker, 149 Vt. 393, 397, 545 A.2d 512, 515 (1988). Particularly in jury trials, the dangers of prejudice and confusion outweigh the probative value of such evidence, if it is offered only for that purpose. E. Cleary, McCormick on Evidence § 190, at 557 (3d ed. 1984). Evidence of prior acts may be admitted, however, if it is relevant to some other legitimate issue in the case, such as identity, intent, preparation, plan, or knowledge. State v. Cardinal, 155 Vt. 411, 414, 584 A.2d 1152, 1154 (1990). Although relevant, the evidence will be excluded if its probative value is substantially outweighed by its prejudicial effect. V.R.E. 403; Parker, 149 Vt. at 400, 545 A.2d at 516.

When prior act evidence is offered to show identity, the test for relevance is demanding. See State v. Hall, 40 Wash.App. 162, 165-66, 697 P.2d 597, 600 (1985). The "pattern and characteristics" of the prior acts must be so distinctive, in effect, to constitute the defendant's signature. See id. (a prior sexual act may be admitted to show identity only if it is so similar that it constitutes the handiwork of the accused); E. Cleary, supra, § 190, at 560. Although the prior acts of the accused and the charged acts do not have to be identical, they must possess common features that make it highly likely that the unknown perpetrator and the accused are the same person. Whereas a few common features that are unique may be sufficient, a larger number of them, less remarkable, but taken together, may also have significant probative value. United States v. Myers, 550 F.2d 1036, 1045 (5th Cir.1977).

Defendant argues that the stringent relevance standard for identity is not met in this case because the sexual acts described by his girlfriend are not uncommon, and are described in books, magazines and films available to the general public. Therefore, he contends, his prior sexual relationship with his girlfriend cannot be considered so idiosyncratic as to identify him as the perpetrator in the case at bar.

Notwithstanding the stringency of the criteria for admissibility, evidence of prior similar crimes has been admitted to show identity in many rape and sexual assault cases. For example, in State v. Shedrick, 59 Ohio St.3d 146, 150-51, 572 N.E.2d 59, 64-65 (1991), evidence of a past rape was used to show the assailant's identity under Rule 404(b), ¹ where the defendant attacked both victims in a similar way, turned each victim's pants inside out, and assaulted both victims vaginally and anally. The court concluded that evidence of the defendant's prior rape of the first victim was sufficiently similar to be probative on the issue of identity. Id. at 151, 572 N.E.2d at 65. In State v. White, 101 N.C.App. 593, 595-601, 401 S.E.2d 106, 107-10 (1991), evidence of a past rape was used to show identity under Rule 404(b) where both victims were held in the same manner, both were told to "shut up," and both were ordered to remove their clothing. When the victims refused, the defendant removed their clothing, and ordered both victims to "put it in." These cases, and numerous others like them, ² are necessarily fact-specific, but they provide guidance on the kind of prior sexual practices that have been admitted under Rule 404(b) against defendants accused of rape. At the very least, the cases show that evidence of sexual acts that are well known to the majority of adult members of society was admitted when it had a strong tendency to...