State v. Carter, No. 94-412

• Docket Nº: No. 94-412
• Citation: 674 A.2d 1258, 164 Vt. 545
• Case Date: January 12, 1996
• Court: United States State Supreme Court of Vermont

Page 1258

674 A.2d 1258 164 Vt. 545 STATE of Vermont
v.
Bernard CARTER. No. 94-412. Supreme Court of Vermont. Jan. 12, 1996.

Jane Woodruff, Orleans County State's Attorney, Newport, for plaintiff-appellee.

Norman R. Blais, Burlington, for defendant-appellant.

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

DOOLEY, Justice.

Defendant Bernard Carter appeals his conviction by jury of aggravated sexual assault, in violation of 13 V.S.A. § 3253(a), raising three claims of error: (1) the trial court impermissibly excluded evidence that substantiated and explained his reasoning for leaving Vermont after he was charged with the crime; (2) the court erroneously allowed one of the State's witnesses to corroborate the victim's account of events through prior consistent statements; and (3) his Fifth Amendment rights under the United States Constitution were violated when the trial court allowed a state police officer to testify that defendant refused to discuss the charges with him. We conclude that defendant's first two claims of error are valid, but because these errors were harmless beyond a reasonable doubt, we affirm.

I.

Defendant and the victim had separate apartments in the same complex in Newport, Vermont and were formerly romantically involved. During the evening of October 24, 1992, defendant entered the victim's apartment and accused her of giving him a sexually transmitted disease. Later that night, he entered the apartment again, accompanied by his nephew, and refused to leave. According to the victim, defendant held a knife to her throat and threatened to forcibly rape her and to kill her. Thereafter, according to the victim, he forcibly sexually assaulted her. According to defendant, who also testified, he never threatened the victim, and they had consensual intercourse.

Defendant was charged with aggravated sexual assault, unlawful mischief, and petty larceny. He was eventually apprehended in Arizona in February 1993, and stood trial in May 1994. Although he [164 Vt. 547] was acquitted of the unlawful mischief and petty larceny charges, ¹ he was convicted of aggravated sexual assault. The allegation on which he was found guilty specified that he sexually assaulted the victim, that at the time of the assault, he threatened to cause serious bodily harm to her, and that she reasonably believed he had the present ability to carry out the threat. ²

II.

The first issue on appeal relates to the State's evidence that defendant fled the state to avoid prosecution. The victim gave a statement to the police on October 26, 1992, and they went to defendant's apartment where he was seen running from the premises. Along with his nephew and girlfriend, he traveled from state to state thereafter until

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he was finally apprehended in Arizona. During his flight, defendant threatened to kill the victim and threatened to kill both his nephew and his girlfriend if they testified against him.

The State called on both the nephew and the girlfriend to show defendant's flight. The issue of an alternative explanation for the flight, consistent with innocence, first surfaced with the nephew, who wanted to testify that he fled in response to an inaccurate newspaper story. He offered a copy of the story, which said that both he and defendant had committed the crime, that they had used a knife to rape the victim, and that the maximum punishment faced was life imprisonment. The court refused to allow the newspaper story to be introduced and also prohibited the nephew from describing it.

The issue then arose with respect to defendant, who made a claim similar to that of the nephew. When defense counsel asked defendant what he had heard about why the police were looking for him, the trial judge intervened and eventually ruled defendant could not testify to "any information gained from newspapers or the like" or make any statements about defendant's belief about the maximum punishment for the offense. Defendant did testify that he understood the police were looking for him for a knife-point rape, that he did not commit such a rape, and that he fled out of fear. On cross-examination, he [164 Vt. 548] testified that he learned about the charge from the newspaper, which had a front-page article with his picture and the statement that he and his nephew were wanted for a knife-point rape.

We have held that the State may introduce evidence of flight by a criminal defendant to show consciousness of guilt. At the same time, we have questioned the probative value of such evidence. See State v. Pelican, 160 Vt. 536, 542, 632 A.2d 24, 28 (1993); State v. Giroux, 151 Vt. 361, 366, 561 A.2d 403, 406 (1989); State v. Unwin, 139 Vt. 186, 193, 424 A.2d 251, 255 (1980). Recently, in State v. Perrillo, 162 Vt. 566, 570, 649 A.2d 1031, 1034 (1994), we ruled that if evidence of flight is admitted "the defendant should in fairness be afforded the opportunity to explain why his absence was consistent with his innocence." We reversed the conviction in Perrillo because defendant was prohibited from showing his reason for leaving the state. He testified that, although he had received a plea bargain offer that required no jail time, he left the state to earn the money to hire a private lawyer, not to escape. He wanted to testify to the proposed plea agreement to show that he did not fear prosecution and he turned it down because he wanted to establish his innocence. We held that the exclusion of the plea bargain evidence denied defendant the opportunity to refute the inference that his "flight" was motivated by consciousness of guilt. Id. at 570, 649 A.2d at 1034.

We agree with defendant that the court's exclusionary ruling was error under Perrillo. Apparently, the court was concerned about the jury being exposed to improper pretrial publicity and knowing the maximum punishment for the crime. To the extent the information would prejudice defendant, however, he waived any objection by offering the newspaper headline and article. To the extent it would prejudice the State, the prosecution necessarily accepted that prejudice by offering the flight evidence. The alternative, if any, was to exclude the evidence of flight, not to prevent defendant from offering a plausible explanation for his actions. It is inconsistent with our holding in Perrillo for the State to insist that evidence of flight be admitted and then to rely on other considerations, such as those contained in V.R.E. 403, to prevent defendant from providing a full explanation of his actions.

III.

Defendant next claims that the trial court erred by permitting the victim's sister's testimony as evidence of a prior consistent statement by the victim. The victim disclosed the sexual assault to her sister, [164 Vt. 549] who was also her roommate, during the day following the assault. When asked how the victim described the attack, the sister responded, "She told me that he forced her to have sex with him. She also said that he made her have sex with him." When asked to describe other details of what happened, the sister testified, "She told me that he had

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her pushed against the wall, against the stove, had a knife to her throat. Spit in her face.... You know, name calling, threatening her and her kids." Defendant objected to this testimony because it was hearsay and was not authorized by the rule on prior consistent statements, V.R.E. 801(d)(1)(B).

Hearsay is defined as an out-of-court statement offered in evidence to prove the truth of the matter asserted. V.R.E. 801(c). Hearsay has been traditionally rejected as substantive evidence because the declarant was not under oath and was not subject to cross-examination at the time the statement was made. See generally 5 Wigmore on Evidence §§ 1362, 1367 (Chadbourn rev. 1974). Testimony regarding an out-of-court statement that is used not to prove the truth of the matter asserted, but is used instead to rebut an allegation of recent fabrication or improper motive or influence, is not hearsay. V.R.E. 801(d)(1)(B). When both the source of the statement is before the jury for scrutiny and the person who heard the prior consistent statement is in court to testify, the statement is as reliable as any other testimonial evidence, and is not regarded as hearsay. See State v. Roy, 140 Vt. 219, 227, 436 A.2d 1090, 1093 (1981); McCormick on Evidence § 251, at 604 (2d ed. 1972); Reporter's Notes, V.R.E. 801.

The dispute over the admission of the prior consistent statement here involves timing. In State v. Roy, decided before the promulgation of the Vermont Rules of Evidence, we adopted the content of Federal Rule of Evidence 801(d)(1)(B), which is identical to V.R.E. 801(d)(1)(B). We held that the rule has three requirements:

(1) the prior consistent statement corroborates the witness's in-court testimony; (2) the party offering the prior consistent statement establishes that the statement is being offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive; and (3) the statement is shown to have been made prior to the time that the supposed motive to falsify arose.

[164 Vt. 550] 140 Vt. at 227, 436 A.2d at 1094. Defendant argues that the third element of Roy is not met because the motive to falsify was present from the beginning.

The State answers by relying on State v. Robinson, 158 Vt. 286, 298, 611 A.2d 852, 858 (1992), in which a similar argument was made with respect to a prior consistent statement made by a victim of child sexual abuse to a police officer. Emphasizing that the trial court has discretion in determining whether to admit a prior consistent statement and that the child's motive to fabricate as claimed by the defendant was "highly speculative," we held it within the trial court's discretion to admit the evidence. The State argues that timing is unimportant here because defendant claimed that the victim embellished the story over time,...