State v. Gates

• Decision Date: 31 August 1982
• Docket Number: No. 341-80,341-80
• Citation: 141 Vt. 562,451 A.2d 1084
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Benjamin GATES.

Page 1084

451 A.2d 1084

141 Vt. 562

STATE of Vermont v. Benjamin GATES.

No. 341-80.

Supreme Court of Vermont.

Aug. 31, 1982.

Dissenting Opinion Oct. 5, 1982.

John J. Easton, Jr., Atty. Gen., James R. Crucitti and Marilyn Skoglund, Asst. Attys. Gen., Montpelier, and Harold E. Eaton, Chittenden County Deputy State's Atty., Burlington, for plaintiff-appellee.

Andrew B. Crane, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before BARNEY, C.J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ. HILL, Justice.

The defendant appeals his conviction by a jury of assault and robbery. We reverse.

I.

In the late evening of March 13 or the early morning of March 14, 1980, there was an assault and robbery outside of a Burlington bar. At trial, only one witness, a fourteen year old juvenile, identified the defendant as one of the assailants. This juvenile had been an accomplice in the robbery, and testified under a grant of immunity. The defense attempted to impeach her credibility and testimony through extensive cross-examination. On the day of the robbery, the juvenile had ingested twelve sixteen-ounce bottles of beer, seven rum and cokes, two Black Russians, cocaine, speed, and marijuana. The witness did not get along with the defendant, and had bad feelings about black people "in a sex manner." (The defendant is black). The witness has a long history of delinquency, including heavy drug and alcohol abuse, robbery, and shoplifting. The defense also challenged the consistency and accuracy of the juvenile's testimony.

The defendant's sole witness offered an alibi for the defendant. This witness testified that the defendant spent the night of the crime at her home. The prosecution vigorously attacked her credibility and the consistency of her testimony. She admitted that she was in love with the defendant, and would do almost anything to help him with the case. She also stated that she spent the recesses and breaks at the trial with the defendant. The prosecution persistently questioned the witness on inconsistencies between her testimony and pretrial deposition, which was given ten days before the trial.

In sum, the case boiled down to one issue: who did the jury believe. They could accept the testimony of the only witness to identify the defendant as the attacker, and convict the defendant. Or, they could accept the testimony of the alibi witness and acquit. The decisive factor in this choice would be their evaluation of the impeached credibility and stories of both witnesses.

On closing argument, the prosecutors made still another sally on the alibi witness:

Prosecutor: Tuesday was the 11th [of March] The assault was on the 13th. [The alibi witness] told you that she remembers [the defendant] slept [at her house] the first time on Tuesday. But then she told [defense counsel] in response to his questions that when she was deposed on that point, she wasn't sure whether Tuesday was the first night they spent together. Of course, now that she has testified, now that she has spent all of the recesses and all of the breaks in the trial with Mr. Gates, she's sure --

Defense Attorney: Objection, your Honor. I object to that. There is no indication in cross-examination that--or any fabrication of testimony. She did state she was with Mr. Gates.

The Court: I think the Jury can draw the inferences they wish as to the conversations. She indicated what they talked about, and the fact that they spent time together can be commented on. It is in evidence.

Prosecutor: I'm asking you to consider that. You draw your own conclusions. Just as the Court has said, draw your own inferences from that. That's in evidence, that they spent all of this time together during the trial, during the breaks, that she has been with him. He has been sitting here throughout the whole trial listening to every word from every witness, listening to every piece of evidence. And she testified that she lives with him and would do anything except[141 Vt. 566] --with that one exception--something that would endanger those people, for him. Draw your own conclusions from that.

(Tr. G-167 to 168) (emphasis added).

The defendant claims that this argument raised improper inferences and thereby denied him his right to a fair trial. He also challenges the propriety of the following instruction, to which he made a timely objection.

Now, the State occupies a different position to a witness it calls than does a private party. It is the duty of the State to produce and use all witnesses within reach of subpoena of whatever character, who's testimony will shed light upon the case, leaving it for the Jury to weigh the evidence and to decide to what extent it is credible. The public, at who's interest the prosecution is carried forward, has as much interest in establishing the innocence of the defendant, if he be innocent, as his guilt, if he be guilty. This is not to say the State's Attorney must call each and every witness who may have an account to relate as to a particular occurrence. The State's Attorney is vested with some degree of discretion in determining what course is both just and best, adapted to minimize undue or unnecessary prolongation of the trial.

(Tr. G-205).

We begin with the claim on the argument of the prosecution.

II.

The boundaries of propriety in closing argument are well established in Vermont. "[C]ounsel should confine argument to the evidence of the case and inferences properly drawn from it, and must avoid appealing to the prejudice of the jury." State v. Lapham, 135 Vt. 393, 406, 377 A.2d 249, 257 (1977). Improper closing argument, standing alone, is insufficient to overturn a conviction. "[P]rejudice must affirmatively appear." Id. at 407, 377 A.2d at 257. See State v. Blakeney, 137 Vt. 495, 504, 408 A.2d 636, 642 (1979). Thus, to warrant reversal, the appellant must establish that the prosecutor's closing argument was not only improper, but also that it impaired the defendant's right to a fair trial.

We agree with the defendant that the prosecutor's argument strayed from the evidence and "inferences properly drawn from it." State v. Lapham, supra, 135 Vt. at 406, 377 A.2d at 257. The credibility of the defendant's alibi witness was certainly fair game for the prosecution. There is no doubt that the prosecutor had every right to challenge the consistency of the witness's story, and the impact of her involvement with the defendant on her testimony. Yet, the evidence did not give the prosecutor license to suggest two other damaging inferences which her closing argument plainly implied.

The first impermissible inference raised by the prosecutor's argument concerned the witness herself. The argument went beyond a general attack on veracity, consistency, or bias. The argument called on the jury to infer that on specific occasions, i.e., the trial breaks, the witness had relearned her story with the help of the defendant. There was not a shred of evidence to support this inference. Although the prosecutor extensively cross-examined the witness, she never asked whether the defendant had coached the production of an alibi. Nor did she inquire as to what the defendant and the witness talked about during the trial breaks. Rather, the prosecutor chose to suggest this damaging innuendo on closing argument where it could not be rebutted by any evidentiary offer. By presenting this inference to the jury, the prosecutor buttressed a general attack on the witness with a specific allegation of misconduct. This inference about the witness, however, has no support in the record.

Second, and even more important, is the inference raised by the prosecutor's argument about the defendant himself. Even were we to allow an unsupported attack on the witness, we could not permit the added thrust at the defendant. The plain inference of the argument was that not only had the witness lied, but that the defendant himself had procured the dishonesty. The attack on the witnesses's credibility cannot be stretched to support an inference about the defendant's conduct. Yet, the prosecutor invited the jury to infer that the defendant had suborned perjury, see 13 V.S.A. § 2902; State v. Bissell, 106 Vt. 80, 90, 170 A. 102, 106 (1934), or at least tampered with a witness. Whatever the jury's opinion of the alibi witness, an inference of misconduct by the defendant, unrelated to the charged offense, was an added strike against him. By raising the unsupported inference, the argument exceeded the bounds of the evidence. Accord, United States v. Rios, 611 F.2d 1335, 1341-43 (10th Cir.1979); United States v. Hayward, 420 F.2d 142, 146-47 (D.C.Cir.1969); Hall v. United States, 419 F.2d 582, 585 (5th Cir.1969).

On appeal, the State does not contend that either of the above inferences are based on the case's evidence, or would be appropriate. Instead, the State contends that the argument only attacked the consistency and veracity of the witness. As Justice Peck put it, this "is a paper-thin effort to disguise the language [of the closing argument.]" State v. Moran, 141 Vt. 10, ---, 444 A.2d 879, 884 (1982). The prosecutor herself admitted that her argument raised improper inferences during a bench conference following the defendant's objection to her argument:

Defense Attorney: Your Honor, in the event you didn't grant a motion for mistrial, I would ask you to instruct the Jury that there is no evidence whatsoever in this case that there was any fabrication made during any of those conferences. There is no such evidence in the case.

Prosecutor: I didn't suggest that there was.

The Court: She didn't say there was.

Defense Attorney: She was suggesting that there was. She was clearly suggesting it.

Prosecutor: I said they can infer that and they can.

(Tr. 6-1697) (emphasis added).

Furthermore, if this admission was not enough, "doubt as to the appropriateness of the prosecutor's language ... must be resolved in...