State v. Hall
| Decision Date | 21 December 1984 |
| Docket Number | No. 348-81,348-81 |
| Citation | 487 A.2d 166,145 Vt. 299 |
| Parties | STATE of Vermont v. Roland A. HALL. |
| Court | Vermont Supreme Court |
Dale O. Gray, Caledonia County State's Atty., and Robert Butterfield, Deputy State's Atty., St. Johnsbury, for plaintiff-appellee.
Andrew B. Crane, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.
Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.
This is an appeal by defendant from a judgment of the Vermont District Court, Unit No. 4, Caledonia Circuit, convicting him of lewd and lascivious conduct in violation of 13 V.S.A. § 2601. Trial was by jury. We affirm.
Defendant presents three questions for review by this Court. First, whether the admission of testimony of the state police investigating officer concerning the site of the alleged offense and another material location constituted a violation of the hearsay rule; second, whether this same testimony violated defendant's rights under the confrontation clause of the Sixth Amendment to the United States Constitution; and third, whether the delay of seventeen months in the preparation of the transcript of a pretrial suppression hearing, ordered to complete the record on appeal, denied defendant his constitutional right to due process and to obtain justice promptly and without delay, which, he argues, is applicable to appeals as well as to trials under Chapter I, Articles 4 and 10, and Chapter II, § 28, of the Vermont Constitution.
The facts, as they appear in the record, disclose that on September 1, 1980, two young women, the complaining witnesses, were traveling in a motor vehicle through St. Johnsbury, Vermont, en route to their homes in Montreal, Canada. At approximately seven o'clock in the morning of that date, they stopped at a restaurant in St. Johnsbury. Defendant, who was not known to either at the time, was seated near them at the counter. Before leaving the restaurant, one of the complainants asked defendant for directions to the northbound lane of Interstate Highway 91 leading towards Canada; defendant provided the requested information. The two women left the restaurant shortly thereafter and resumed their journey, stopping briefly for gasoline at a service station across the road from the restaurant.
Defendant acknowledged that he was in the restaurant as claimed by the two women, and that he gave them directions for reaching the Interstate. He acknowledged also that before leaving the restaurant, not long after the complainants, he saw and Once on the Interstate, the complainants proceeded northerly towards Canada at a speed estimated by them as between fifty-five and sixty miles per hour for fifteen to twenty-five minutes. At that point they were passed by a green car traveling at a high rate of speed. A short time later they observed the same car parked on the left shoulder of the road. At the rear of the car they saw a naked man engaging openly in an act which constituted the conduct prohibited by the statute under which defendant was charged.
spoke briefly with an officer of the St. Johnsbury police department. The officer testified to this fact during the trial.
The complainants continued on their way and notified the state police at their first opportunity of the incident they had witnessed. During the course of the subsequent police investigation, the complainants identified the man they had seen by the side of the highway as the defendant, and the same man who had been seated near them in the restaurant of whom they had asked directions. One of the complainants also identified the defendant without hesitation from a series of eight photographs shown to her by the state police. It was also established that defendant owned a green car similar to the one seen by the complainants on the highway.
An examination of defendant's claim relating to hearsay evidence and confrontation rights requires an understanding of the context in which the evidence was presented.
Approximately a week before the trial was scheduled to commence, and notwithstanding the court's earlier discovery order, * the defense informed the prosecution that it proposed to present an alibi witness. The defense knew of the existence of this witness much earlier, and had in fact interviewed him about a month after the alleged offense had occurred. Over the State's objection the trial judge, although indicating displeasure at the untimely disclosure, virtually "on the eve of trial," ruled that since the failure to make an earlier disclosure was not attributable to the defendant personally, he would permit the witness to testify. The court agreed, however, that the State would be allowed a reasonable time to formulate a rebuttal.
The substance of the proposed testimony was to the effect that the alibi witness had seen and talked with defendant on the streets of St. Johnsbury at a time inconsistent with the latter's presence at the scene of the offense at the time it was committed. In short, the testimony was to be offered to rebut the complainants' identification of the defendant.
Facing the challenge of this unanticipated evidence, the investigating state police officer, accompanied by the complainants, drove over the route followed by the latter on September first, from the restaurant to the point on the highway at which they had seen defendant standing by his green car. The point at which complainants told him they had been passed by a green car a few minutes earlier was also noted by the officer. Thus, by following the same route, and at a rate of speed comparable to that at which complainants informed him they had driven on the day in question, the officer was able to clock the approximate number of minutes it supposedly took the complainants to reach these key points. On another trip, the officer drove the interstate portion of the trip at a higher rate of speed in accordance with the estimate by the complainants of the speed of the green car when it passed them. Again, the officer was able to formulate an estimate of the time it had taken the green car to reach the passing point as well as the point at which the complainants claimed to have seen the defendant at the side of the road.
During the State's case-in-chief, the police officer was called as a witness. The The prosecution argued that the testimony was offered for purposes of identifying the scene of the offense, and as corroboration of the previously admitted testimony of the two complaining witnesses on the same subject matter. The court allowed the officer's affirmative response to stand: Thereafter, the prosecutor continued to examine the officer along the same lines:
prosecutor questioned the officer concerning the trips the latter had made with the complaining witnesses, including the average speed at which he had traveled on the Interstate. No objections were interposed until the question was asked: "Now, did these two women tell you the location where they had been passed?" The officer replied in the affirmative, whereupon the defense objected on the grounds of hearsay
Q. And what happened when you passed that area? [where the green car had passed the complainants.]
A. When I reached the [mile] marker 145 area, this is where [one of the complainants] told me that [defendant] had been--had stopped his car [and] was standing there.
Q. Now, how fast were you going at that point?
A. Approximately 60 miles an hour.
Q. And do you recall the time you left [the restaurant]?
A. Yes.
Q. And how long a period of time passed before you got to mile marker 145?
A. Approximately 18 minutes.
It is evident, from the prosecutor's argument and the court's response, that the parties as well as the court treated the hearsay objection as applicable to this entire line of questioning. We will treat it accordingly even though the hearsay objection was not expressly renewed as to the questions and answers relating to speed and to the site of the offense.
Before commencing cross-examination, during a bench conference and again in chambers, defense counsel moved to strike the officer's testimony in its entirety, but not on the grounds of hearsay. The basis stated for the motion was a failure of the prosecution to comply with discovery requirements resulting in surprise and prejudice. The motion was denied, although the court attempted to cure the claim of surprise by allowing defense counsel time to reprise the trip from the restaurant to the material points on the interstate with the officer and the complainants. The question of surprise was not raised thereafter.
Later, after defendant's alibi witness had testified and the defense had rested, the prosecutor recalled the state police officer as a rebuttal witness. He testified that, at the request of the prosecution, he had made another run over the same route at the higher rate of speed, as described above, presumably to duplicate the speed at which complainants estimated the green car had been traveling as it passed them. He indicated the length of time it took him, at the increased speed, to reach the site of the offense. The only objection to this testimony was on the grounds of relevance. The question of hearsay was not raised then, or at any time thereafter until this appeal was instituted.
Defendant argues that the testimony of the state police officer concerning the times taken to reach the point where complainants informed him they had been passed by the green car, and later, where they had seen defendant standing by his parked car, was based on hearsay, and accordingly, its admission was error. Similarly, he claims that the admission of the officer's testimony violated the confrontation clause of the Sixth Amendment of the United States Constitution.
In the instant case, we need not determine whether the testimony of the...
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