State v. Lavallee

• Decision Date: 06 September 1960
• Docket Number: No. 341,341
• Citation: 163 A.2d 856,122 Vt. 75
• Parties: STATE of Vermont v. Wilfred Herman LAVALLEE.
• Court: Vermont Supreme Court

Page 856

163 A.2d 856

122 Vt. 75

STATE of Vermont v. Wilfred Herman LAVALLEE.

No. 341.

Supreme Court of Vermont.

Sept. 6, 1960.

Thomas M. Debevoise, II, Atty. Gen., for plaintiff.

John T. Conley, Middlebury, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SMITH, Justice.

The respondent was convicted of assaulting and robbing one Audsley R. Eno of Winooski, Vermont, a violation of V.S. 47 § 8266 (now 13 V.S.A. § 604) by a jury verdict on March 23, 1959, in the Chittenden County Court. Under the practice existing at that time the respondent seasonably filed a bill of expections to bring the case here.

At the outset of the trial, the respondent filed with the trial court the following petition:

'Now comes the respondent, Wilfred Herman Lavallee, by his attorney, John T. Conley, and moves this Honorable Court to direct and order the State to produce for the inspection by the respondent all reports of investigators, police officers and informers who are to testify at the trial in the above entitled cause, either written by them personally or orally made by them and reduced to writing by the State touching the events and activities as to which they are to testify in the trial of the above entitled cause, and the respondent further requests that any relevant statements or reports in the State's possession of the State's witnesses touching the subject matter at the trial be given to the respondent for inspection.'

The trial court denied the petition, and it is upon this denial that the respondent briefs his first exception. The respondent relies almost entirely upon the decision of the United States Supreme Court as given in the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, as the basis for his assertion of error in the denial of his petition in the lower court.

The holding in the Jencks case was not based upon a constitutional question, but set forth a procedural rule for the administration of justice in the Federal courts. This is made obvious by the fact that some of the discovery provisions set forth in the majority opinion in the case have been limited by the passage of the so-called 'Jencks Act' (18 U.S.C. § 3500, Supp. V) by the Congress, and by the fact that it is this Act, rather than the decision in Jencks v. United States, supra, which now governs the production of statements of government witnesses for inspection at trial by a respondent in the United States courts. Rosenberg v. United States, 360 U.S. 367, 369, 79 S.Ct. 1231, 3 L.Ed.2d 1304.

However, if, as the respondent suggests, we used the decision in Jencks v. United States, supra, as a guide to our own reasoning on the question presented it would avail him nothing, for the decision in the Jencks case did not go as far as the respondent would have it.

The motion for the inspection of the reports sought in the Jencks case was made during the course of cross-examination of a witness, and was not made prior to the trial of the case, as was the motion in the case before us. Mr. Justice Frankfurter stated, in Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 1221, 3 L.Ed.2d 1287:

'Exercising our power, in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts this Court, on June 3, 1957, in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. These statements were therefore to be turned over to the defense at the time of cross-examination if their contents related to the subject matter of the witness' direct testimony, and if a demand had been made for specific statements which had been written by the witness or, if orally made, as recorded by agents of the Government.'

No authority is found in the Jencks case to grant a respondent the right to inspect the records and writing of a prospective government witness before trial. Such right to inspect objects, or writings in advance of trial in criminal cases does not exist in the common law. 6 Wigmore Ev. §§ 1850, 1859, 3rd ed. This State has conferred no such right by statute. The respondent has cited us no authority from other jurisdictions conferring such right of pre-trial inspection of the statements of state witnesses. The petition was properly denied.

At the conclusion of the direct testimony of Audsley Eno, he was cross-examined by counsel for the respondent and testified that he had given a statement to investigating officers soon after the robbery and which was signed by him. The respondent then made the following motion:

'Now at this time, your Honor, the respondent moves this court to order the State to produce any statements of the witness in the possession of the State which relate to the subject matter as to which the witness has testified.'

Upon objection by the attorney-general the trial court denied the motion and allowed the respondent an exception.

The same motion was made by the respondent at the conclusion of the direct testimony, and the commencement of cross-examination by other state witnesses, and the same exception was allowed on the denial of each of such motions. While there is a variance in the factual backgrounds on the making of statements on the part of the individual witnesses, we may, for the purpose of deciding the question presented, treat them as the same.

We believe that the question presented may be fairly summarized as involving the right of a respondent in a criminal case to have produced, and to inspect, signed statements made by a state witness before trial, and in the possession of the state, for the use of the respondent on cross-examination, for the purpose of testing the credibility and accuracy of the testimony of the witness given on his direct examination. It is the first time that this question has been presented to this Court.

In the common law the accused in a criminal action could not compel production of documents or other evidence in the possession of the state. 6 Wigmore Evidence, 475-476, 3rd ed. This Court has held that there is no right on the part of a respondent in proceedings made secret by statutory provisions, such as the hearings of a grand jury, or of an inquest (13 V.S.A. § 5605 and 13 V.S.A. § 5134) to inspect the transcripts of such proceedings, except upon an order of the court granted as a matter of discretion. State v. Goyet, 119 Vt. 167, 171, 122 A.2d 862; State v. Truba, 88 Vt. 557, 561, 93 A. 293.

The statements here sought by the respondent were not made during the course of any statutory hearing but were taken from witnesses by the State, through its agents, in the investigation of the alleged crime. It has long been a truism, possibly at times more honored in the breach than in the observance, that it is as much the duty of the State to acquit the innocent as to convict the guilty. To put it another way the interest of the State in a criminal prosecution 'is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314. Justice can only be done when the truth is made known. 'Cross-examination is the most valuable safeguard that has been discovered in the judicial search for truth, and if cross-examination is to be at all effective it must have wide latitude in the testing of the recollection and fidelity of the witness.' State v. Hunt, 25 N.J. 514, 138 A.2d 1, 6. 'Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory.' Mr. Justice Brennan in Jencks v. United States, supra, 353 U.S. at page 667, 77 S.Ct. at page 1013.

There are jurisdictions that deny the right of a respondent to examine statements made by a witness before trial and which are in the possession of the State, for the purpose of cross-examination, on the ground that justice would be frustrated and that no constitutional question is involved, but such jurisdictions admit that such statements might be subject to inspection by a respondent if it is first shown that they are in conflict with the direct testimony of the witness. Anderson v. State, Ind., 156 N.E.2d 384.

It is difficult for us to understand how a respondent could show the inconsistency of a pre-trial statement of a witness, as compared with his direct testimony on trial, when the contents of the statement must remain unknown to the respondent until he has examined it. It must so have appeared to Chief Justice Marshall in the early Federal case of United States v. Burr, 25 Fed.Cas. P. 187, 191, when he wrote:

'Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents?'

A prior showing of inconsistency in...