State v. Goshea

• Decision Date: 06 February 1979
• Docket Number: No. 153-78,153-78
• Citation: State v. Goshea, 398 A.2d 289, 137 Vt. 69 (Vt. 1979)
• Parties: STATE of Vermont v. Robert D. GOSHEA.
• Court: Vermont Supreme Court

Page 289

398 A.2d 289

137 Vt. 69

STATE of Vermont v. Robert D. GOSHEA.

No. 153-78.

Supreme Court of Vermont.

Feb. 6, 1979.

M. Jerome Diamond, Atty. Gen., and Richard A. Unger, William T. Keefe, Asst. Attys. Gen., Montpelier, John S. Liccardi, Rutland County State's Atty., Rutland, for plaintiff.

James L. Morse, Defender Gen., Montpelier, Welch & Graham, White River Junction, and Barry E. Griffith, Rutland County Public Defender, Rutland, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

This appeal is from a conviction of murder in the first degree. The defendant was tried by a jury and sentenced to life in prison. Following the verdict, motions for judgment of acquittal (not pursued here) and a new trial were denied. Three months after the verdict and prior to sentencing, the defendant filed a second motion for a new trial. This motion, unlike the first, was based on the ground of newly discovered evidence. As amended, it alleged that the State's Attorney had withheld evidence tending to negate the guilt of the accused. The trial court denied the motion. We reverse.

At 11:30 p. m. on July 3, 1971, the burning body of a homicide victim was discovered under the Killington Ski Area gondola where it crosses Roaring Brook Road East in Sherburne, Vermont. The police investigation did not focus on the appellant until mid-1974. In May of that year, his onetime paramour repudiated earlier statements and implicated him in the crime. As a result of her new statement, a grand jury indictment issued. It alleged that the murder victim was one Ronald Rodgers, a longtime friend of the defendant.

The trial began on November 28, 1977. Ronald Rodgers's uncle positively identified the body as being Rodgers. He also made a positive identification of the body the night it was discovered. For this reason, the procedures normally used to identify a disfigured corpse, E. g., verifying dental records or fingerprints, were not employed. In testifying that the corpse was Rodgers, the uncle relied on the presence of scars on the body's wrists and upper lip, the location and wording of a unique tattoo on the right forearm, the particular musculature and facial features of the body, a prominent Adam's apple, fatty tumors on his arms, and the particular clothing on the body. This clothing included a shirt with shotgun blasts through the name "Ron Rodgers," indicating that the victim was wearing the shirt when he was shot. The defendant's former paramour testified that he confessed to her that he had killed Ronald Rodgers in Sherburne the evening the body was discovered and then set it afire. A charred checkbook containing blank checks on the account of "Ronald Rodgers" was found on the victim. Other corroborating evidence of lesser magnitude also was introduced.

The defendant's theory of the case was that the murder victim was not Rodgers, but rather a Rodgers look-alike murdered by Rodgers to cover up his planned disappearance to avoid an upcoming robbery prosecution. The Chief Medical Examiner for the State of Vermont, who performed an autopsy on the body, testified that he did not find the scars referred to by Rodgers's uncle. He also testified that due to the fire, the tattoo referred to by the uncle was indecipherable and that the other physical features relied on by the uncle were distorted.

The parties stipulated that Ronald Rodgers had his spleen removed in routine fashion in 1961. The Medical Examiner testified that the corpse he examined had a spleen. He also testified that in his opinion the spleen he removed from the corpse was a primary not an auxiliary spleen. This was based in part on the fact that the murder victim's spleen weighed 120 grams, while the largest auxiliary spleen he had seen discussed in the medical literature weighed 70 to 80 grams. The doctor indicated that an auxiliary spleen would be egg shaped and that the victim's spleen was not. Further, the victim's spleen was found in the normal splenic bed where a primary spleen would be located.

He also testified that the victim's digestive tract contained beef or some other mammalian meat. The defendant produced evidence that Ronald Rodgers consumed a turkey sandwich shortly before the corpse was located in Sherburne. According to the Medical Examiner, the red blood cells of chicken or turkey contain nuclei while mammals' red blood cells do not. The autopsy failed to locate any substance in the victim's digestive tract that contained nucleated red blood cells.

One witness, Rodgers's cousin, testified that Rodgers had told her that if he ever needed to disappear he would kill his look-alike, take the body up to Killington, and set it afire. She then testified that the defendant, on another occasion, also described such a murder to her as the way to commit a perfect crime.

This was the state of the evidence on the identity of the homicide victim when the trial court ruled on the defendant's second motion for a new trial. The motion alleged that in the midst of the trial a person contacted the Rutland County State's Attorney's Office to report that on that day he had seen a man in Burlington, Vermont, who appeared to be Ronald Rodgers. It also alleged that the witness personally was familiar with Rodgers, that this information was communicated to the State's Attorney during the trial, and that he failed to inform either the court or defense counsel. (The information came to the attention of defense counsel several weeks after the trial from members of the Rodgers family.) The motion further stated that during closing argument and in order to convince the jury that the corpse was that of Ronald Rodgers, the prosecution stressed that there was no evidence that Ronald Rodgers had been seen since the day the murder victim was discovered. It requested that a new trial be granted on three alternative grounds. First, because the withheld evidence would be likely to bring about an acquittal on retrial. See State v. Jackson, 126 Vt. 250, 227 A.2d 280 (1967). Second, because the defendant was prejudiced by a violation of V.R.Cr.P. 16(b)(2) and 16.2(b). Cf. State v. Cheney, 135 Vt. 513, 380 A.2d 93 (1977); State v. Evans, 134 Vt. 189, 353 A.2d 363 (1976) (review of violations of V.R.Cr.P. 16(a)). And third, because the prosecution, by withholding the evidence and then arguing its nonexistence to the jury, denied the defendant due process of law by violating his right to a fair trial under the Fourteenth Amendment to the United States Constitution and Article Tenth of the Vermont Constitution.

The motion was supported by the witness's affidavit, and it was followed by a letter from the State's Attorney acknowledging that he had received the information as alleged on December 2, 1977, the fifth day of an eight day trial.

The hearing on the motion was held on March 21 and April 19, 1978. The testimony of the absent witness and the arguments of counsel were received. The witness involved is a longtime resident of Rutland, Vermont, a seventeen year employee of the New England Telephone Company (now employed in a supervisory capacity), and a member of the Rutland Town School Board. He testified that he had been acquainted with Ronald Rodgers for most of his life and had worked with him at the Pico Peak Ski Area during the winter of 1967-68. He said that during the trial he was in Burlington and met a person face to face on the stairway in Woolworth's Department Store that looked like Ronald Rodgers. He did not speak to this man but he believed it to be Rodgers because he "saw how intense his eyes were his eyes and a thin nose. And there's something about his eyes, you know, you just remember him. When you see somebody like that, that's really striking. He was a very intense looking person." The witness confirmed that he contacted the State's Attorney's office and left his name, phone number, and the message that he "had seen somebody that strongly resembled Rodgers and possibly somebody might want to look into it." On cross-examination the witness admitted that he had not seen Rodgers since 1971.

The trial court found that the testimony of the witness was newly discovered by the defendant and material, but the court also found that it would not be likely to bring about acquittal on retrial, citing State v. Jackson, supra, because the witness knew Rodgers only casually and had not seen him in years. Furthermore, he experienced only a brief glimpse of the person in Woolworth's and recognized only two features similar to Rodgers's, the eyes and nose.

The court also found that the prosecution, by failing to furnish the defendant with the information it received from the witness, violated V.R.Cr.P. 16(b)(2) and 16.2(b). Those rules impose a continuing duty on the State to disclose all exculpatory evidence to the defendant in a criminal case. Because of the violation, the court held that the motion for new trial should be evaluated under a less stringent standard than normally would apply under State v. Jackson, supra. It determined that the motion should be evaluated under the standard set out in United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976), which it found to be: "(whether) 'the omitted evidence creates a reasonable doubt that did not otherwise exist,' " evaluating the omission " 'in the context of the entire record.' "

The court found the identity of the homicide victim "to be one of the most closely contested issues" at the trial, "an issue that the jury could have decided either way." But "conceding the closeness of the issue and the possibility that the 12 finders of fact could have entertained reasonable doubts on the identity issue, the Court (found) it impossible to believe that the extremely weak and inherently unreliable (although sincere) testimony of (the witness) would have created a reasonable doubt in the minds of the jurors that did not already exist."

The...