State v. Memoli

• Decision Date: 10 February 2011
• Docket Number: No. 09–349.,09–349.
• Citation: 2011 VT 15,18 A.3d 567
• Parties: STATE of Vermontv.Richard D. MEMOLI.
• Court: Vermont Supreme Court

18 A.3d 567

2011 VT 15

STATE of Vermont

v.Richard D. MEMOLI.

No. 09–349.

Supreme Court of Vermont.

Feb. 10, 2011.

William H. Sorrell, Attorney General, and David E. Tartter, Assistant Attorney General, Montpelier, for Plaintiff–Appellee.William A. Nelson, Middlebury, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.SKOGLUND, J.

¶ 1. Defendant Richard D. Memoli appeals from a judgment of conviction based on a jury verdict of aggravated sexual assault. He contends the trial court erred in: (1) excluding evidence of complainant's use of cocaine during the months preceding and following the assault because it precluded him from presenting his defense that complainant voluntarily exchanged sex for drugs; and (2) declining to instruct the jury on the prohibited act of lewdness as a lesser-included offense. We conclude that the court's pretrial order excluding evidence of complainant's drug use was error, and reverse and remand for a new trial.

¶ 2. The record evidence may be summarized as follows. On the evening of December 31, 2007, complainant celebrated New Year's Eve with friends at a bar in Winooski. After consuming several drinks which left her feeling “buzzed,” complainant caught a ride to a nearby house party. Complainant smoked marijuana on the ride to the party and drank—by her own estimation—“a lot” of beer while there. Shortly after midnight, complainant left the party with the two friends who brought her, planning to go home. An argument ensued, however, over whether the complainant was owed change from a purchase of marijuana, and the friends dropped her off on Malletts Bay Avenue.

¶ 3. As complainant began to walk home, a sport utility vehicle pulled up and stopped in front of her. Complainant's version of the ensuing events is as follows. She recalled that the driver asked if she was okay, and identified himself as “Rico” and the woman in the passenger seat as “Sam.” Complainant gave a false name because she “thought they were undercover cops.” Rico, later identified as defendant, offered complainant a ride home. She accepted and entered the rear passenger seat. Complainant also accepted defendant's invitation to join him and Sam at defendant's house for drinks. After parking in defendant's driveway, defendant asked Sam to open the console and she removed what, according to complainant, “looked like a bag of crack.” Sam brought the bag inside the house, where she and defendant entered a bedroom and closed the door while complainant drank a beer in the living room. Complainant assumed that defendant and Sam were smoking the crack cocaine.

¶ 4. A few minutes later, Sam and defendant came out and invited complainant to enter the bedroom to be “more comfortable.” She complied, whereupon Sam closed and locked the bedroom door. Complainant testified that she then observed defendant and Sam smoking crack from an inhaler, and that Sam also blew some of the smoke into her mouth. Complainant further testified that “at some point” her clothes were off but could not recall precisely when or how that occurred. Complainant testified that over the next several hours she was forced to participate in a number of sexual activities, including oral sex on defendant. Complainant testified that she was crying, asked to leave, and felt sick and scared throughout much of the ordeal. Eventually defendant told her that she could leave, called her a taxi and told her to be “a good girl and not cry in the cab.”

¶ 5. Complainant arrived home shortly after 6:00 a.m., and later that morning called her best friend to report the incident. Complainant also told her mother, who called the police. The investigating officer who arrived at the home observed complainant lying on the bed in a fetal position, crying and hyperventilating. Complainant was brought to the hospital, where she was met by an officer with the Chittenden County Special Investigations Unit. The officer observed complainant to be distraught and unwilling to make a statement at that time. A medical examination revealed redness and a bruise on complainant's neck, but no other evidence of assault. About a week later, complainant gave a lengthy statement to the investigating officer describing what happened and who was involved. Her statement and other evidence led to the arrest of defendant, who was charged with aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(2) (defining aggravated sexual assault as a sexual assault committed while being “joined or assisted by one or more persons in physically restraining, assaulting or sexually assaulting the victim”).

¶ 6. Defendant and his companion Sam testified and presented a different version of events. Defendant recalled that when complainant entered the car he asked her “if she smoked” and wanted to “hang out with us and get high,” she assented, and all three smoked crack cocaine on the ride to defendant's house. Defendant further testified that the three then went straight to the bedroom, where they all smoked a considerable amount of crack cocaine and engaged in consensual sexual relations. Defendant emphatically denied that complainant was forced to smoke or to have sex. He recalled that complainant asked to take some crack with her when she left, and that when he refused, she “wasn't pleased.” Defendant's companion testified similarly that complainant voluntarily smoked “a lot” of cocaine, and denied that complainant was forced to do so or compelled to participate in sexual relations.

¶ 7. A jury found defendant guilty as charged. He was sentenced to a term of imprisonment often to twelve years. This appeal followed.

I.

¶ 8. Defendant's principal claim on appeal concerns a pretrial ruling excluding all evidence relating to complainant's use of drugs before and after the date of the offense. The ruling arose following the State's in limine motion, which contained no legal argument, but simply asked for exclusion of certain evidence including testimony about complainant's drug use before and after the date of the alleged offense, and a videotaped conversation wherein complainant allegedly buys drugs. Defendant opposed the motion through a written memorandum. At a hearing on the motion, defendant's attorney gave the following proffer of the evidence's relevancy:

[These two issues] go to the heart of our defense. If we're not allowed to deal with [these issues], we don't have a defense. Our defense is very simple. Our defense is that the complaining witness traded sex for drugs. It's as simple as that, and it's a common occurrence among a certain group of individuals who are addicted to crack cocaine. It's just a fact of life, and so we have a voluntary defense. Our defense is that she voluntarily consented, and the reason that she did was ... that she was a crack addict, and my client was in a position to give her all the crack that she wanted.

Defendant's attorney explained that he had witnesses who would testify that complainant used and sold crack cocaine within thirty days before and after the incident, and this was both relevant to his defense and to impeach complainant, who in her deposition denied using crack before or after the incident. Defendant's attorney further explained that “if the court restricts everything to just that day, then the jury isn't really going to understand who this person is and the kind of activities that she engages in on a regular basis. Someone who uses crack, you know, shortly before and after and then denies using it on that particular day, I think the jury should be able to hear that.”

¶ 9. The State claimed that the evidence should be excluded for lack of relevance because “[t]he fact that she is a crack addict does not mean he has a right to sexually assault her.” On the issue of impeachment, the State explained that complainant would testify at trial that she “has been an addict in the past,” and so there would be no need to impeach her testimony.

¶ 10. From the bench, the court ruled that complainant's drug use on the night of the incident was admissible, but complainant's subsequent use and “history and reputation as a drug user beforehand is out of bounds.” Defendant's attorney again probed whether he could use complainant's drug use to impeach complainant's statement during her deposition that she had not used crack cocaine before or after the night of the incident. The court denied the request, stating that those questions were not directly relevant to the charge and therefore beyond the scope of admissible testimony.

¶ 11. The court also issued a written order, directing that, other than evidence from the night of the incident, evidence of complainant's drug usage was inadmissible because it was not relevant to the issue of consent. In addition, although it had not been argued, the court rested its decision on the rape shield law, which prohibits introduction of a victim's prior sexual conduct, with some limited exceptions. 13 V.S.A. § 3255(a)(3). The court reasoned as follows:

In this case, the defense seeks to introduce evidence of [complainant's] prior and subsequent use of crack and/or addiction to crack to support an inference that she performed sex for drugs. Allegations concerning prior sexual conduct are generally impermissible under the Rape Shield law, and none of the exceptions to that statute apply. Even if [complainant] previously used or was addicted to crack, that does not mean she consented to sex in the charged incident.

Defendant filed a motion for interlocutory appeal, which was denied.

¶ 12. The case proceeded to trial. As set forth above, complainant, defendant and defendant's alleged accomplice, Sam, all testified. While their stories varied in the details, all agreed that complainant voluntarily got into defendant's car, went back to defendant's house, and entered defendant's bedroom. They also agreed that defendant, Sam and complainant smoked crack cocaine and that complainant...