State v. Mayo, 06-335.

CourtUnited States State Supreme Court of Vermont
Citation2008 VT 2,945 A.2d 846
Docket NumberNo. 06-335.,06-335.
PartiesSTATE of Vermont v. Stanley MAYO.
Decision Date18 January 2008
945 A.2d 846
2008 VT 2
STATE of Vermont
v.
Stanley MAYO.
No. 06-335.
Supreme Court of Vermont.
January 18, 2008.

[945 A.2d 848]

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Charles S. Martin and Kathleen Whelley McCabe (on the Brief) of Martin & Associates, Barre, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and BURGESS, JJ., and ZIMMERMAN, D.J., Specially Assigned.

BURGESS, J.


¶ 1. Defendant Stanley Mayo was convicted of aggravated assault and being a habitual offender. Defendant challenges these convictions on three grounds, claiming that the trial court erred by: (1) quashing his subpoena for recordings of telephone calls made by one of the State's witnesses from jail; (2) admitting what he describes as an unnecessarily suggestive photographic lineup, and allowing the victim to identify him in court; and (3) refusing to properly investigate allegations that the jury was tainted. Defendant further claims that the sum of the trial court's errors entitles him to reversal on appeal. We disagree, and affirm defendant's convictions.

¶ 2. The assault at issue took place during the early morning hours of November 20, 2004. The victim was in the parking lot of the Edgewater Pub in Colchester when he was attacked by two men. One man ran at him from the direction of the bar and struck him in the face, while another man struck him from behind. The victim fell to the ground, where the two men "started kicking and punching" him. Fearing for his life, the victim moved his "arms back and forth" in front of his body to protect himself; he then went into a fetal position and soon lost consciousness. As a result of the attack, the victim sustained serious injuries, including a broken

945 A.2d 849

nose and broken left eye socket, lacerations to his face, and brain damage due to "air on his brain."

¶ 3. The victim's description of his assailants varied. He did not provide a description to the police immediately after the attack, but during an interview with Officer Michael Fish of the Colchester Police Department on December 17, 2004, he stated that one of his attackers had "a hat on and a goatee." He also told Officer Fish that defendant was one of the men who had attacked him. The victim maintained that he did not know defendant, but instead had been informed of defendant's involvement by an eyewitness (referred to herein as "eyewitness"), a friend of the victim who had been present at the time of the assault. Officer Fish showed the victim two photographic lineups, the first of which contained eight photos of men with light hair. All eight photos were in black and white, uniformly numbered and framed, and approximately the same size. They were shown one at a time to the victim. While the victim was not "100% sure," he chose two photographs from the eight which he thought depicted the man who had assaulted him. One of these photos was a picture of defendant. After choosing the two photographs, the victim asked the officer if he had identified defendant.

¶ 4. At a hearing on February 15, 2005, the victim described one of his assailants as not "too tall, probably 5'7. I wouldn't say muscular but fat ... didn't look clean cut ... [with] [l]ight facial hair." At trial, the victim described his attackers to the jury, stating that one man, who "might have been five-eight, skinny, [with] black hair" ran at him from the bar and struck him in the face, while a "fatter person, kind of grubby at the time, [with] blond hair ... heavyset," struck the victim from behind.

¶ 5. The police also interviewed eyewitness, who was incarcerated afterwards for an unrelated incident. Eyewitness identified defendant as one of the victim's assailants. Defendant was subsequently charged with aggravated assault and violation of the habitual-offender statute on December 21, 2004.

¶ 6. Three weeks prior to trial, defendant attempted to subpoena jail records of eyewitness' telephone calls during the time he had been incarcerated following the assault, arguing that these recordings could provide valuable impeachment evidence. The Department of Corrections moved to quash the subpoena, claiming that production of the recordings would "compromise the safety and security of the Chittenden facility," and its motion was granted. Defendant also moved to suppress the introduction of the December 17 photographic lineup, as well as any subsequent in-court identification by the victim. This motion was denied. At trial, defendant was convicted of both counts, and this appeal followed.

I. Defendant's subpoena for recordings of eyewitness' telephone calls

¶ 7. Defendant first contends that the trial court erred when it quashed his subpoena for the recordings of eyewitness' telephone calls from jail. Defendant claims that the trial court's actions violated his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution, Chapter I, Article 10 of the Vermont Constitution, the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and Rule 16 of the Vermont Rules of Criminal Procedure.

¶ 8. We first address defendant's claim of a Confrontation Clause violation, and conclude the Confrontation Clause affords

945 A.2d 850

no protection to defendant in the context of a pretrial motion for discovery. This Court discussed the reach of the Sixth Amendment to the pretrial context in State v. Percy, 149 Vt. 623, 548 A.2d 408 (1988). In Percy, we upheld the trial court's denial of the defendant's request to have a psychological expert examine the victim before trial with the aim of preparing his experts to testify before the jury. Id. at 631-32, 548 A.2d at 412-13. Because the Sixth Amendment right of confrontation is a "trial right that is not violated by restrictions on pretrial discovery," we conclude that the defendant had no Sixth Amendment right at stake during the pretrial discovery stage of trial. Id. at 633, 548 A.2d at 414. Similarly, defendant's claim here, raised in the context of a pretrial subpoena of a witness' telephone records, must fail.

¶ 9. Defendant is not without recourse for denial of pretrial discovery. While rejecting the application of the Sixth Amendment to pretrial discovery in Percy, we explained that the Due Process Clause of the Fourteenth Amendment establishes "disclosure rights relevant to defendant's [pre-trial] claims." Id. at 633-34, 548 A.2d at 414.1 Defendant must pursue this due-process claim before the trial court, however, and in the instant case, this claim was not raised until defendant's motion for discovery pending appeal, filed more than a year after the October 2005 trial. Because defendant failed to raise this claim below, we review only for plain error. State v. Wiley, 2007 VT 13, ¶ 7, 181 Vt. 300, 917 A.2d 501. "Plain error exists only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." State v. Carpenter, 170 Vt. 371, 375, 749 A.2d 1137, 1139-40 (2000) (quotation omitted).

¶ 10. No such miscarriage of justice occurred here. In the motion hearing before the court, defendant argued that he should be able to listen to recordings of the calls eyewitness made while in prison because eyewitness was a key witness in the case. Defendant offered no specific evidence as to the contents of the particular conversations requested, nor any indication why the evidence he sought would be found in the telephone records. Rather, he claimed that he should have the opportunity to see "whether or not [eyewitness] made incriminating statements to the people on the outside," because eyewitness had, in the past, made inconsistent statements regarding the case. The trial court denied defendant's request for an in-camera hearing, finding that defendant, "not having the slightest idea of the content of these conversations," had made an insufficient showing that these conversations contained material evidence. The court did, however, allow defendant another chance to prove the conversations were material: it ordered the Department of Corrections to release a call log containing a full listing of the telephone calls eyewitness had made while in jail, including the names and telephone numbers of the persons called, and instructed defendant to telephone the individuals listed on the log to determine whether those individuals had in fact discussed the case with eyewitness while he was incarcerated. The court suggested that the issue could be revisited if it appeared that the telephone conversations did contain specific information about the case. Defendant did not follow up on

945 A.2d 851

this information for more than a year after trial. Given the lack of evidence presented by defendant that the particular recordings he was requesting would provide material evidence, and the opportunity provided by the trial court for defendant to gather the information needed through call logs, we find no plain error here.

II. The photographic lineup and subsequent in-court identification

¶ 11. Defendant next raises three contentions regarding the admission of the photographic lineup and the victim's in-court identification of him at trial: (1) the trial court erroneously found that the victim could not have identified defendant at the time of...

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  • State v. Pitts, 07-077.
    • United States
    • United States State Supreme Court of Vermont
    • May 22, 2009
    ......See State v. Mayo, 2008 VT 2, ¶ 9, 183 Vt. 113, 945 A.2d 846 (stating test for finding plain error). .         ¶ 36. Regarding the merits of Sequoya's ......
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