State v. Kelley

Citation148 A.3d 191,2016 VT 58
Decision Date20 May 2016
Docket NumberNo. 14–440.,14–440.
Parties STATE of Vermont v. Shawn KELLEY.
CourtUnited States State Supreme Court of Vermont

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for PlaintiffAppellee.

Michelle Kainen of Kainen Law Office, PC, White River Junction, for DefendantAppellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

SKOGLUND, J.

¶ 1. Defendant Shawn Kelley argues that this Court should vacate his domestic assault conviction because numerous reversible errors occurred during his jury trial. Specifically, he claims that the trial court improperly admitted two pieces of hearsay evidence, that the trial court incorrectly denied his motion for judgment of acquittal, and that the State made prejudicial remarks during its closing statement. We affirm.

¶ 2. The following facts are drawn from the testimony of witnesses and the exhibits introduced at trial.

¶ 3. On New Year's Eve 2013, defendant and his girlfriend, the complainant, welcomed the new year at defendant's apartment. They spent the early part of the evening drinking. Later in the evening, the dispatcher at the Williston State Police barracks received a 911 call from the complainant. Distraught, the complainant spoke with the dispatcher:

DISPATCHER: Vermont 911, where is your emergency?
COMPLAINANT: Umm, I need an ambulance—
DISPATCHER: Where?
COMPLAINANT: 9 Fuller Place.
DISPATCHER: Ok, I need you to speak up a little bit. Nine what place?
COMPLAINANT: Fuller.
DISPATCHER: In what town?
COMPLAINANT: Essex.
DISPATCHER: Ok. Is this for you or someone else?
COMPLAINANT: Me.
DISPATCHER: Ok. How old are you?
COMPLAINANT: I'm forty-seven.
DISPATCHER: Ok. What's happening to you?
COMPLAINANT: I was beaten.
DISPATCHER: Ok, who beat you?
COMPLAINANT: [Defendant].
DISPATCHER: Is he still there?
COMPLAINANT: Yes.
DISPATCHER: Ok. Is he hiding or does he
COMPLAINANT: I'm—No—
DISPATCHER: Are you hiding?
COMPLAINANT: Well, kind of ... yes.
DISPATCHER: K, what is your name?
COMPLAINANT: [Complainant].
DISPATCHER: Ok [Complainant], how old are you?
COMPLAINANT: Forty-seven.
DISPATCHER: Ok, all right. And what did he beat you with?
COMPLAINANT: Fists.
DISPATCHER: Ok. Does he know that you're calling for help?
COMPLAINANT: Ahh, I don't know.
DISPATCHER: Ok, has he been drinking or is he on drugs?
COMPLAINANT: We both are.
DISPATCHER: You're both on drugs?
COMPLAINANT: Drinking.
DISPATCHER: Ok.

At this point, approximately one minute into the call, the dispatcher reached the Essex Police Department and requested that they respond; the complainant remained on the phone and listened to the dispatcher's conversation with the police. The dispatcher then asked the complainant several follow-up questions for the remainder of the eight minute call. The dispatcher concluded the call once the responding officers reached the complainant.

¶ 4. Two police officers responded to the 911 call. Defendant met the officers at the vestibule of his apartment building. After climbing to defendant's third floor apartment, the first officer remained with defendant in the hallway, while the second officer entered the apartment to investigate.

¶ 5. Inside the apartment, the second officer saw blood in the entryway and followed a narrow trail of blood into the bedroom, where he found the complainant on the phone with significant blood above her left eye. After checking that she could move safely, he asked the complainant to come into the living room to be interviewed. During this interview, the complainant told the officer that defendant struck her.

¶ 6. Meanwhile, in the hallway, defendant told the first officer that the complainant had fallen a couple times and that he had tried to get her to leave the apartment. According to this officer, defendant seemed agitated and intoxicated. After waiting for a few minutes, defendant attempted to enter the apartment.

¶ 7. Defendant's attempted entry coincided with the second officer's interview with the complainant, so both officers put defendant in investigative detention. Additional officers then transported defendant back to the police station. Rescue personnel took the complainant to the emergency room.

¶ 8. After both defendant and the complainant left, the officers continued their investigation of the apartment. The first officer observed blood in several locations: on a bloody rag or shirt in the bathroom; in a large puddle on the floor in the center of the bathroom; on the door casing going into the bedroom; and on the side of the mattress in the bedroom. This officer did not see any obvious evidence—such as bloodstains, tissue, or hair fibers—that the complainant struck her head on a countertop or furniture corner in the apartment. Similarly, the second officer did not find any indication that the complainant fell and injured her head

. He did observe shoes near the bathroom door.

¶ 9. As a result of the officers' investigation, the State charged defendant with domestic assault pursuant to 13 V.S.A. § 1042. Defendant's jury trial was held on August 7, 2014, in the Chittenden County Superior Court, Criminal Division.

¶ 10. The State's evidence included the 911 recording, the responding officers' testimony, the complaint's testimony, and photographs of the complainant and the apartment. Although the complainant testified for the State, she testified that defendant did not cause her injuries. The complainant explained that, rather than being struck by defendant, she tripped over her shoes while entering the bathroom and hit her head on the ceramic tiles. She said that she sometimes blacks out when she drinks; as a result, she did not remember anything leading up to her fall, she did not recall making the 911 call, she did not recollect reporting that she was struck, and she only vaguely remembered the trip to the hospital. She acknowledged that her trial testimony differed from her previous reports, but said that, as the days progress after a blackout, snippets of her memory return, like her memory of tripping.

¶ 11. At the conclusion of the State's case, defendant made an oral motion pursuant to Vermont Rule of Criminal Procedure 29(a) on the ground that the State could not establish that defendant caused the complainant's injury. The trial court denied the motion based, at least in part, on the substantive evidence contained in the 911 recording.

¶ 12. Defendant's case consisted solely of his own testimony. He testified that he did not strike the complainant. Instead, he said that complainant was drunk and became verbally aggressive with him, so he left her alone. After she quieted down for several minutes, he went to investigate and discovered her on the bathroom floor with a pool of blood around her head. Defendant then called 911, and the complainant grabbed the phone from him. According to defendant, after she grabbed the phone, he went down to the vestibule to meet the police.

¶ 13. The jury convicted defendant of domestic assault under 13 V.S.A. § 1042. Subsequently, defendant filed a combined post-trial motion for judgment of acquittal and for a new trial. In his combined motion, defendant renewed his argument that the State did not establish that defendant caused complainant's injury, claimed the State did not build a proper foundation for the admission of the 911 recording as an excited utterance, and advanced other arguments not at issue in this appeal. The trial court denied both motions, again pointing to the substantive evidence contained in the 911 recording and noting that defendant did not object to the admittance of the 911 recording as an excited utterance.

¶ 14. On appeal, defendant raises four arguments: first, defendant argues the court abused its discretion by admitting the 911 recording; second, defendant claims that, because the second officer's testimony failed to impeach the complainant, it was hearsay and unfairly prejudicial; third, defendant contends the evidence failed to establish that he recklessly caused injury to the complainant; and fourth, defendant argues the State mischaracterized the evidence and made improper remarks during its closing statement.

I. The 911 Recording

¶ 15. Defendant's initial argument concerns the admission of the 911 recording. He contends the court abused its discretion by admitting the 911 recording for three reasons: (1) the State did not lay a proper foundation to authenticate the identity of the 911 caller; (2) the State failed to establish a foundation for the admission of the 911 recording as an excited utterance; and (3), because the complainant did not remember the 911 recording, defendant could not cross-examine her, which violated the Confrontation Clause of the Sixth Amendment of the United States Constitution. We address each in turn.

¶ 16. During the trial, the trial court allowed the State to authenticate the identity of the 911 caller using the testimony of the 911 dispatcher and one of the officers. The officer testified that he recognized the complainant's voice on the 911 recording, based on a prior meeting with the complainant and either a voicemail or a phone conversation. Then, the court allowed defendant to voir dire the officer; defendant asked a single question about the content of the alleged voicemail. The court subsequently admitted the entire 911 recording.

¶ 17. On appeal, defendant argues that the officer's testimony did not establish the identity of the 911 caller with “reasonable certainty” because the officer met with the complainant only once, the State never established that the alleged voicemail or phone conversation was actually from complainant, and the voicemail or phone conversation occurred roughly seven months prior to trial. By contrast, the State argues that, because the defendant failed to offer a timely or sufficiently clear objection to the admission of the 911 recording at trial, we should review defendant's arguments under a plain error standard. In the alternative, the State claims that no error, let alone plain...

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  • State v. Lambert
    • United States
    • United States State Supreme Court of Vermont
    • April 30, 2021
    ...two positions is relevant to the witness's credibility, regardless of the information in the inconsistent out-of-court statement." State v. Kelley, 2016 VT 58, ¶ 35, 202 Vt. 174, 148 A.3d 191. By concluding the deed statement was only relevant for impeachment, the trial court implicitly con......
  • State v. Sarkisian-Kennedy
    • United States
    • United States State Supreme Court of Vermont
    • January 24, 2020
    ...fact of incarceration as evidence of defendant's character or that he committed offense for which he was on trial); State v. Kelley, 2016 VT 58, ¶ 40, 202 Vt. 174, 148 A.3d 191 (noting that court properly used curative instruction to alleviate risk that jury would consider evidence of out o......
  • State v. Sarkisian-Kennedy
    • United States
    • United States State Supreme Court of Vermont
    • January 24, 2020
    ...not consider fact of incarceration as evidence of defendant's character or that he committed offense for which he was on trial); State v. Kelley, 2016 VT 58, ¶ 40, 202 Vt. 174, 148 A.3d 191 (noting that court properly used curative instruction to alleviate risk that jury would consider evid......
  • State v. Discola
    • United States
    • United States State Supreme Court of Vermont
    • January 19, 2018
    ...constitute plain error if "they are so manifestly and egregiously improper that there is no room to doubt the prejudicial effect." State v. Kelley, 2016 VT 58, ¶ 48, 202 Vt. 174, 148 A.3d 191 (quotation omitted); see also State v. Ladue, 2017 VT 20, ¶ 39, ––– Vt. ––––, 168 A.3d 430 ; State ......
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