State v. Manning, 16–141

• Citation: 177 A.3d 513
• Decision Date: 29 September 2017
• Docket Number: No. 16–141,16–141
• Parties: STATE of Vermont v. Gregory MANNING
• Court: United States State Supreme Court of Vermont

177 A.3d 513

STATE of Vermont

v.Gregory MANNING

No. 16–141

Supreme Court of Vermont.

March Term, 2017

September 29, 2017

Heidi W. Remick, Windsor County Deputy State's Attorney, White River Junction, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Dawn Matthews and Marshal Pahl, Appellate Defenders, Montpelier, for Defendant–Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

REIBER, C.J.

¶ 1. This appeal stems from an embezzlement case concerning four missing bank deposits defendant was entrusted to make for his employers. Following his jury conviction on a single count of embezzlement, in violation of 13 V.S.A. § 2531(a), defendant argues on appeal that: (1) the State's failure to preserve potentially exculpatory video evidence should have resulted in the trial court dismissing the charge or at least barring the State from presenting testimony concerning the video recordings in question; (2) the State's closing argument impermissibly shifted the burden to him to preserve the video evidence and improperly impugned his defense; and (3) given his continuing claim of innocence, the sentencing court's probation condition requiring him to complete a particular program in which he would have to accept responsibility for his crime was not individually tailored to his case and thus constituted an abuse of the court's discretion. We affirm.

¶ 2. The record reveals the following facts. Defendant worked at the Corner Stop Mini Mart, located in Royalton, Vermont, for several years leading up to the incidents in question. He was a trusted employee and friend of the couple who owned the Mini Mart. As a trusted employee, he was responsible at times for making the store's bank deposits, including night deposits, at the local bank.

¶ 3. At the end of each shift, cashiers at the Mini Mart counted the money in the drawer, noted how much was in cash, change, and checks, and filled out a deposit slip. The money and deposit slip were then placed in a zippered bag to be deposited at the bank. A daily sales report was kept by the store for bookkeeping purposes. On days that defendant worked, he would take deposits to the bank. Otherwise, the cashier would drop the bag in the store's drop safe, and one of the store's owners would make the deposit. Defendant was the only employee allowed to make after-hours bank deposits.

¶ 4. At some point between mid-November and December 2013, the store owner who did the bookkeeping noticed a missing deposit. Due to the date of the deposit, October 26, she was not concerned because she thought it would appear on the November statement. When the deposit did not appear, she called the bank to inquire about the missing deposit. Soon thereafter, she noticed a second missing deposit, dated November 27. Several weeks later, she discovered two more missing deposits from December 14, 2013 and January 2, 2014. Defendant was working on all four dates and thus would have been responsible for taking the deposits to the bank. The four missing deposits totaled over $10,000: $2302 from October 2013, $2554 from November 2013, $3153 from December 2013, and $2077 from January 2014.

¶ 5. The bank made an initial search for the missing deposits, but found no record of the deposits on the dates in question or the days immediately after those dates for either the Mini Mart account or any other account. In early January 2014, the regional security manager for the bank began investigating the missing deposits. After reviewing security camera footage, she did not observe defendant on October 26, 2013;¹ however, footage from the other three dates appeared to show defendant approaching the after-hours drop box with the deposit bag, but then either holding the bag in the box and withdrawing it or placing the bag in his coat before putting an empty hand in the box.

¶ 6. At the security manager's invitation, she, a Royalton police officer, the store owners, and defendant watched the camera footage from the November and December incidents together. Regarding the November deposit, defendant claimed he was having trouble with the deposit box, and the bag would not drop in properly. He alleged he returned to the bank a day later to make the deposit in person with a teller.² Defendant's wife testified at trial that she accompanied defendant the Friday after Thanksgiving to make the November deposit. Regarding the December deposit, defendant claimed that two money bags were stuck together, one of which was empty, and that he pulled back only the empty bag out of the deposit box while dropping in the one containing money.

¶ 7. After viewing the camera footage of the night deposits, defendant requested in writing that security videos be preserved for the night deposit on November 27 and 28 and for the entire day on November 28 and 29, as well as December 14 and 16. The security manager replied in writing that the federal Gramm–Leach–Bliley Financial Privacy Act prohibited the bank from honoring his request without a subpoena. Defendant never provided the bank with a subpoena.

¶ 8. In February 2014, the security manager and the Royalton police officer reviewed the internal bank camera footage from November 29 and 30. The officer testified that he did not seek a warrant to obtain copies of the footage because he "did not see the defendant come into the bank and give the deposit to a teller" like the defendant stated he did.

¶ 9. In early March 2014, the Royalton officer learned of the missing January deposit and contacted the bank to see if there was any relevant camera footage. The bank produced security footage that showed defendant walking to the night depository and then walking away without depositing anything. Regarding that incident, defendant testified that he had issues with the deposit box and brought the deposit home, later returning to the bank to deposit it with a teller.

¶ 10. On June 16, 2014, defendant was charged with embezzling money in excess of $100 between October 26, 2013 and January 2, 2014, in violation of 13 V.S.A. § 2531(a). At arraignment the following day, defendant pleaded not guilty and was released on bail. After a two-day jury trial held July 22 and 23, 2015, defendant was convicted of embezzlement. Defendant filed a motion for judgment of acquittal, or alternatively, for a new trial, arguing that: (1) the evidence was insufficient to establish that he came into possession of his employer's money; and (2) the State's repeated claims that defense counsel could have subpoenaed interior bank camera footage were unsupported by any evidence that the footage at issue was available to be subpoenaed by the time he was arraigned on the embezzlement charge. The trial court denied defendant's motion, stating that the evidence was sufficient for the jury to find defendant guilty beyond a reasonable doubt and that, in noting defense counsel's ability to have subpoenaed the video footage, the State was responding to defense counsel's cross-examination regarding the bank's failure to preserve the footage. Following a hearing, the court sentenced defendant to one to five years, all suspended except for thirty days. His sentence was subject to several probationary conditions, including a condition that he complete the Restorative Justice Program to the satisfaction of his probation officer.

¶ 11. Defendant now appeals, arguing that: (1) the State failed to preserve interior bank camera footage that was potentially exculpatory evidence; (2) the State's closing argument impermissibly shifted to him the burden to preserve the camera footage and improperly impugned his defense; and (3) the probation condition requiring him to complete the Restorative Justice Program was not individually tailored to his circumstances.

¶ 12. Regarding his first claim of error, defendant argues that the "real issue" is a denial of due process based on the State's failure to preserve potentially exculpatory evidence. He contends that, under this Court's three-part test set forth in State v. Bailey, 144 Vt. 86, 475 A.2d 1045 (1984),³ and later reaffirmed in State v. Delisle, 162 Vt. 293, 648 A.2d 632 (1994), he is entitled to dismissal of the charge or at the least a new trial in which the State would be precluded from presenting any testimony concerning the viewing of interior bank camera footage that was no longer available and had not been preserved by the State.

¶ 13. As an initial matter, we address the State's claim that defendant failed to adequately raise his due process claim during the trial court proceedings. As the State points out, during the thirteen months before trial when he was represented by counsel, defendant neither subpoenaed the interior videos from the bank⁴ nor filed a motion in limine to prevent the State from presenting testimony concerning the videos.

¶ 14. In her opening statement at trial, the prosecutor told the jury, with respect to the November missing deposit, that although defendant claimed he made the deposit during bank hours the next day after having trouble with the night deposit box the previous evening, police and bank personnel viewed interior bank camera footage of the two following bank days but did not see defendant enter the bank to make a deposit. The bank security manager later testified on direct examination that she reviewed the bank's interior camera footage for those days. When the prosecutor asked her if she was "able to find any indication ...," defense counsel objected that this was "hearsay in disguise" in that the prosecutor was really getting the security manager to say that the video did not show anything. Defense counsel also argued that the manager's answer would violate the best evidence rule because the interior video footage was not preserved despite defendant's request that it be preserved. The court ruled that the video recording was not an out-of-court statement, as defense counsel argued, and that if defendant was going to testify that he came in later...