State v. Hazelton, No. 04-283.

Docket NºNo. 04-283.
Citation915 A.2d 224, 2006 VT 121
Case DateNovember 22, 2006
CourtUnited States State Supreme Court of Vermont
915 A.2d 224
2006 VT 121
STATE of Vermont
v.
Sherrill HAZELTON.
No. 04-283.
Supreme Court of Vermont.
November 22, 2006.

[915 A.2d 226]

William D. Wright, Bennington County State's Attorney, and David R. Fenster and Daniel M. McManus, Deputy State's Attorneys, Bennington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and Rebecca Turner, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., and DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.


¶ 1. Defendant appeals from his conviction and sentence following a jury trial on two counts of sexual assault. He claims on appeal: (1) that the court improperly allowed the State to introduce hearsay evidence against him; (2) that the court erred in allowing him to be prosecuted for two crimes arising out of a single act; and (3) that his concurrent sentences of eighteen to twenty years are illegal because, after allowing for good time off the maximum, the minimum term could match or exceed the maximum term. We reverse and remand on defendant's first point, respond to his second issue as germane to retrial, and do not reach his third issue.

¶ 2. Defendant was charged with sexually assaulting S.L., the niece of his girlfriend, while babysitting S.L. and her younger sister. S.L. was ten years old at the time of the alleged assault. S.L. testified that she had been playing outside with some other children and that when she went into the house to use the bathroom defendant sexually assaulted her by use of force. There was no other witness or evidence to corroborate the alleged assault. Defendant testified and denied the allegations.

I.

¶ 3. Defendant's first claim of error is that the trial court allowed the State to bolster S.L.'s credibility with hearsay after defense counsel impeached her testimony at trial with a prior inconsistent statement made in an earlier deposition. S.L.'s statements at issue — prior descriptions of the assault to the investigating police officer and to her grandmother — were proffered by the State on the theory that prior consistent statements would allow the prosecution "to argue that there were no other inconsistencies." The State cited State v. Church, 167 Vt. 604, 708 A.2d 1341 (1998) (mem.), as authority for admission of prior consistent statements to support the credibility of a witness impeached by a prior inconsistent statement.

¶ 4. Defendant argues that the trial court improperly admitted the testimony in reliance on our decision in Church, which allowed admission of prior consistent statements of a witness, not as substantive

915 A.2d 227

nonhearsay evidence under V.R.E. 801(d)(1)(B), but for rehabilitation after the witness was impeached by prior inconsistent statements. Id. at 605-06, 708 A.2d at 1342. Defendant posits that Church should be limited or overruled. For the reasons discussed below, we agree with defendant that the trial court's application of Church to the instant case was overly broad and erroneous.

¶ 5. At trial, S.L. testified that while playing kickball, she entered defendant's home to use the bathroom when he grabbed her by the arm, brought her to his bedroom, undressed her, forced her face-down onto the bed, and held her down with one hand on her neck and the other under her stomach propping her up. She testified that she felt something go into her "baby hole," that it hurt, and that defendant made moaning noises. She said that after the assault she got her clothes, ran into the bathroom, and noticed she was bleeding from between her legs and that there was "white mushy stuff" on her. She stated that she cleaned herself with toilet paper and wrapped toilet paper around her underwear to stop the blood from leaking through. She also testified that after the assault, and before she went into the bathroom, defendant told her not to tell anyone and that if she did he would "hurt people [she] cared for." S.L. testified that afterwards she had nightmares about defendant, continued to spot blood for a few days (when she had not yet begun menstruating), and told her grandmother about the incident around Easter, some six months later.

¶ 6. On cross-examination, defense counsel sought to impeach S.L. by highlighting inconsistencies between her trial testimony and her earlier deposition testimony. Defense counsel asked S.L. whether any blood got onto her clothing, and S.L. responded that some blood got onto her underwear and she threw them away. Defense counsel then presented S.L. with her deposition testimony, where counsel asked whether she had bled onto her underwear, and S.L. answered: "No, not that I could recall."

¶ 7. After S.L. testified, the State presented testimony from Dr. Scattergood, who examined S.L. after she disclosed the alleged assault to her grandmother. The doctor related that during a sexual assault examination, S.L. reported that defendant "put his thing inside her, she had some spotting for two to three days, [and] afterward she was sore." Defendant raised no objection to this portion of the doctor's testimony.

¶ 8. After the doctor's testimony, the State proffered the investigating officer who took S.L.'s report of the assault, and S.L.'s grandmother who was the first person S.L. told about the assault, to testify about what complainant previously told them had happened at defendant's house. Defendant objected to the witnesses repeating S.L.'s prior statements as both inadmissible hearsay and improper rehabilitation. The State argued that the prior consistent statements were not offered for the truth of the matter asserted, but to support S.L.'s credibility in response to defendant's effort to impeach the witness with her prior inconsistent statements, and cited Church in support.

¶ 9. Defendant argued that repetition by others of S.L.'s versions of the assault would not rebut the inconsistency drawn out by the defense, and the State made no proffer that either witness's testimony would address the particular inconsistency raised by the defense: that S.L. testified at trial that there was blood on her underwear, but testified at an earlier deposition that she recalled no such blood. Agreeing that Church appeared to follow a rationale of admitting prior consistent statements

915 A.2d 228

for the jury "to understand that these inconsistencies are minor with how many consistencies there have been in the past," the trial court allowed the prior consistent statements for that purpose. This ruling was incorrect, and so we revisit Church to clarify the use of prior consistent statements following attack on a witness's credibility by prior inconsistent statements. We do not here attempt to exhaust the circumstances in which the trial courts may find the admission of consistent statements relevant to rehabilitate a witness's credibility after impeachment. As each case may present unique circumstances, the application is best left to the sound discretion of the trial courts. Nevertheless, it must be said that Church does not stand for the proposition that, whenever an inconsistency is raised as to one detail of a story, the opposing party may introduce prior out-of-court statements consistent with other aspects of a witness's testimony, without any rebuttal force to the contradiction or to the source of the impeachment.

¶ 10. In Church, a child-sexual-assault case where evidence of recantation was introduced as a prior inconsistent statement to impeach the child's testimony, the defendant argued that it was error to allow a witness to testify to the child's prior consistent statements outside of the limited circumstances outlined in V.R.E. 801(d)(1)(B). 167 Vt. at 605, 708 A.2d at 1342; see also V.R.E. 801(d)(1)(B) (providing that a statement is not hearsay if consistent with the witness's trial testimony and "offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive"). Rule 801(d)(1)(B) was inapplicable in Church, because the statements were not offered as substantive nonhearsay evidence under that rule, but were offered solely to rehabilitate the witness after her credibility was impeached by an apparent recantation. 167 Vt. at 605, 708 A.2d at 1342 ("V.R.E.801(d)(1)(B) does not govern the admissibility of prior consistent statements to rehabilitate a witness; it `merely allow[s] a certain subset of these statements to be used as substantive evidence of the truth of the matter asserted.'" (quoting United States v. Ellis, 121 F.3d 908, 919 (4th Cir.1997), cert. denied, 522 U.S. 1068, 118 S.Ct. 738, 139 L.Ed.2d 674 (1998))).

¶ 11. That the evidence is not offered under Rule 801(d)(1)(B) for substantive purposes does not end the inquiry into the relevance of prior consistent statements for rehabilitative purposes, nor their admissibility. As we stated in Church, a prior consistent statement offered to rehabilitate a witness "is admissible when it has `some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony.'" 167 Vt. at 605, 708 A.2d at 1342 (quoting Ellis, 121 F.3d at 920) (emphasis added). As observed in Ellis, prior consistent statements have significant rebutting force and countering effect where they "serve to clarify whether the impeaching statements really were inconsistent within the context of the interview, and if so, to what extent"; where they are "offered to clarify or amplify the meaning of the impeaching inconsistent statement"; where they "bear on whether, looking at the whole picture, there was any real inconsistency"; or where, in accord with the "Doctrine of Completeness," the one against whom part of a statement has been admitted into evidence seeks to complement the evidence by putting in the remainder of the statement to demonstrate a "complete understanding of the total tenor and effect of the utterance." 121 F.3d at 920 (internal...

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33 practice notes
  • State v. Nelson, No. 2018-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...the age of sixteen to whom he was not married" and "§ 3252(a)(1) by compelling a person to participate in a sexual act without consent." 2006 VT 121, ¶ 23, 181 Vt. 118, 915 A.2d 224 (quotation omitted). Reasoning that the element of compulsion is not an additional element in § 3252(a)(1) be......
  • State v. Nelson, No. 18-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...the age of sixteen to whom he was not married" and " § 3252(a)(1) by compelling a person to participate in a sexual act without consent." 2006 VT 121, ¶ 23, 181 Vt. 118, 915 A.2d 224 (quotation omitted). Reasoning that the element of compulsion is not an additional element in § 3252(a)(1) b......
  • State v. Breed, No. 13–288.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 13, 2015
    ...indication of a contrary legislative intent, such as an explicit provision that the penalty is to apply cumulatively.” State v. Hazelton, 2006 VT 121, ¶ 39, 181 Vt. 118, 915 A.2d 224 (quotation omitted).¶ 24. In attempting to distinguish Hazelton —a case in which we held that the elements o......
  • State v. Tribble, No. 10–021.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 28, 2013
    ...trial court erred in allowing defense counsel to present a case of diminished capacity over defendant's objection. See State v. Hazelton, 2006 VT 121, ¶ 22, 181 Vt. 118, 915 A.2d 224 (addressing remaining legal claim, despite reversal on other grounds, because it was likely to arise in new ......
  • Request a trial to view additional results
33 cases
  • State v. Nelson, No. 2018-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...the age of sixteen to whom he was not married" and "§ 3252(a)(1) by compelling a person to participate in a sexual act without consent." 2006 VT 121, ¶ 23, 181 Vt. 118, 915 A.2d 224 (quotation omitted). Reasoning that the element of compulsion is not an additional element in § 3252(a)(1) be......
  • State v. Nelson, No. 18-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 16, 2020
    ...the age of sixteen to whom he was not married" and " § 3252(a)(1) by compelling a person to participate in a sexual act without consent." 2006 VT 121, ¶ 23, 181 Vt. 118, 915 A.2d 224 (quotation omitted). Reasoning that the element of compulsion is not an additional element in § 3252(a)(1) b......
  • State v. Breed, No. 13–288.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 13, 2015
    ...indication of a contrary legislative intent, such as an explicit provision that the penalty is to apply cumulatively.” State v. Hazelton, 2006 VT 121, ¶ 39, 181 Vt. 118, 915 A.2d 224 (quotation omitted).¶ 24. In attempting to distinguish Hazelton —a case in which we held that the elements o......
  • State v. Tribble, No. 10–021.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 28, 2013
    ...trial court erred in allowing defense counsel to present a case of diminished capacity over defendant's objection. See State v. Hazelton, 2006 VT 121, ¶ 22, 181 Vt. 118, 915 A.2d 224 (addressing remaining legal claim, despite reversal on other grounds, because it was likely to arise in new ......
  • Request a trial to view additional results

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