State v. Porter

• Decision Date: 01 August 2014
• Docket Number: No. 12–344.,12–344.
• Citation: 103 A.3d 916,2014 VT 89
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Harold D. PORTER, Jr.

103 A.3d 916

2014 VT 89

STATE of Vermont

v.Harold D. PORTER, Jr.

No. 12–344.

Supreme Court of Vermont.

Aug. 1, 2014.

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

William A. Nelson, Middlebury, for Defendant–Appellant.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, Edward A. Brill and Rebecca L. Berkebile of Proskauer Rose LLP, and Karen A. Newirth, Barry C. Scheck, and M. Christopher Fabricant, New York, New York, for Amicus Curiae The Innocence Project, Inc.

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

Opinion

CRAWFORD, J.

¶ 1. Defendant Harold D. Porter, Jr. appeals from his conviction for attempted kidnapping. He argues that the trial court erred in (1) refusing to grant a motion for a new trial because the prosecution failed to disclose important expert testimony; (2) admitting the testimony of police officers that they had

ruled out other suspects based on interviews with out-of-court declarants; (3) admitting eyewitness identification testimony; (4) failing to dismiss the case for failure to preserve and test potentially exculpatory evidence; and (5) excluding the testimony of defendant's expert on police procedures. We reverse and remand.

¶ 2. The following facts were established at defendant's March 2012 trial. On the evening of September 9, 2009, the complainant was walking home along Colchester Avenue in Burlington when an unknown man attacked her and tried to force her into the cab of a pickup truck that was parked alongside the road. He punched her repeatedly in the face and she fell to the ground. He pinned her to the ground with his knee. She started screaming “rape.” At one point he shoved his finger into her mouth and she bit him. He got up and she managed to escape. She ran to a nearby house and rang doorbells until someone let her in. The assailant drove off in the truck. Police and an ambulance arrived soon afterwards.

¶ 3. Several people witnessed the event and offered descriptions of the assailant and the truck to police. One eyewitness chased after the truck as the assailant left and saw that the license plate was the green color of a Vermont plate, although he could not see the numbers because they were obscured by the tailgate. The complainant described the man as a middle-aged white male with no beard or mustache who was about her height, 5'11,? but could not otherwise identify him.

¶ 4. While the assailant's truck was parked on the side of the road, a Chittenden County Transportation Authority (CCTA) bus passed by. Two video cameras attached to the bus captured images of the assailant's truck at the location identified by the complainant.

¶ 5. In the course of their investigation, police showed the videos to the manager of a local Chevrolet dealership. He identified the truck as a light-colored Chevrolet one-ton dual-rear-wheel pickup truck with four doors, a flaring fender, a distinctive front bumper and headlights, and a contractor's rack on the back. He believed that the car was gas-powered because he did not see a diesel badge on the driver's-side door. He further believed that the truck was likely to have four-wheel drive. Based on these characteristics, he told police that the truck's vehicle identification number (VIN) would contain the sequence “K33” in the fifth, sixth, and seventh position.

¶ 6. Using the VIN parameters provided by the manager of the Chevrolet dealership, the Vermont Department of Motor Vehicles produced a list of approximately twenty gray or silver trucks registered in Vermont.¹ Police contacted the owners of each truck, and eventually ruled out every truck except for defendant's.

¶ 7. Defendant was arrested and charged with attempted kidnapping, aggravated assault, and unlawful restraint. The latter two charges were eventually dismissed by the State. Defendant's first trial in July 2011 ended in a mistrial when the jury was unable to reach a verdict. A second jury trial in March 2012 resulted in a guilty verdict. Defendant was sentenced to serve thirty years to life. This appeal followed.

I. Testimony of Police Officers Ruling out Trucks Other Than Defendant's

¶ 8. One of the critical issues at trial was the identification of defendant's truck using video from the CCTA camera at the scene of the crime. Because the truck was relatively unique, police investigators working with the Department of Motor Vehicles were able to identify approximately twenty vehicles registered in Vermont which matched the make and color of the truck seen on camera. Ten vehicle owners testified at trial for the purpose of eliminating their truck or trucks from identification. The police interviewed five other owners prior to trial. These owners did not testify at trial. Instead, the investigating officers testified that based on the out-of-court interviews with the owners, the officers were able to eliminate those remaining trucks from the identification process.

¶ 9. The first issue is whether defense counsel offered a sufficient objection at trial to this testimony. See State v. Decoteau, 2007 VT 94, ¶ 10, 182 Vt. 433, 940 A.2d 661 (“The party opposing introduction of evidence must object at the time the evidence is offered to preserve this issue for appeal.”). Prior to the testimony of Detective Carlson, who had contact with two of the vehicle owners who did not testify, defense counsel objected in the following terms:

[M]y understanding is that this [testimony about the remaining trucks] is just what was reported to him and what was provided to him through photographs that he doesn't have any individual foundation to establish ... [W]e move to exclude him on that basis ....

....

The difference is all the other truck owners are going to be here—my understanding is they're going to be here to testify on their own. Detective Carlson is acting as a substitute for these other two. So this isn't something that can be tied in later with independent evidence, this is just [the detective] coming in and saying well, they said they weren't here and so they weren't here.

The court ruled that the officers could testify about what they had learned from the remaining vehicle owners, but that the State could not elicit “hearsay statements as to what the person told the police officer.” When the same issue arose during the testimony of three detectives, defense counsel renewed his objection on the ground of “foundation based on hearsay” and “objection based on hearsay.” Over these objections, the court permitted the State to introduce testimony from the detectives concerning their elimination of four trucks from involvement in the crime.²

¶ 10. We are satisfied that the objections were sufficient to preserve the issue of admissibility of the testimony under Vermont Rule of Evidence 602. The issues of hearsay and

personal knowledge are closely linked in this case. A police officer's repetition of a statement made by a vehicle owner would raise issues under the hearsay rule. Testimony that a truck was eliminated from suspicion based on the owner's out-of-court statement raises a slightly different question under Rule 602. In considering the preservation issue, courts have generally considered a hearsay objection sufficient to alert the trial court to the issue even when the precise objection arises under Rule 602. United States v. Davis, 596 F.3d 852, 856 n. 2 (D.C.Cir.2010) ; Elizarraras v. Bank of El Paso, 631 F.2d 366, 374 (5th Cir.1980) ; State v. Okumura, 78 Hawai‘i 383, 894 P.2d 80, 95–96 (1995), overruled on other grounds by State v. Cabagbag, 127 Hawai‘i 302, 277 P.3d 1027, 1040 (2012). But see United States v. Stout, 599 F.2d 866, 869 (8th Cir.1979) (holding that police officer's testimony that eight people were in bank at time of robbery, which was based on his interviews of other witnesses, was admissible over hearsay objection). In this case, the shorthand objection on hearsay grounds was supplemented by the prior discussion at the bench of the issue. Defense counsel plainly registered an objection not only to the officers' recitation of statements by the owners who were not present, but also to testimony from the investigating officers concerning their conclusions about which trucks they could exclude from further suspicion.

¶ 11. We turn now to the merits of the dispute over admissibility. We begin our analysis with Rule 602, which provides in relevant part that “[t]he testimony of a witness may be excluded or stricken unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.”

¶ 12. In this case, the witnesses knew only what the vehicle owners told them. These statements were not independently admissible as, for example, admissions by a party opponent. See In re Estate of Maggio, 2012 VT 99, ¶ 27, 193 Vt. 1, 71 A.3d 1130 (holding that evidence admissible as party-opponent admissions under Rule 801(d)(2) need not satisfy personal knowledge requirement of Rule 602 ). Nor were the statements offered as the basis for an expert opinion. See V.R.E. 703 (providing that facts relied upon by expert witness need not be admissible for expert's opinion to be admitted, if facts are reasonably relied upon by experts in the field). Instead, this is a case in which the substance of hearsay statements was introduced in the guise of conclusions reached by the witnesses. Permitting the witnesses to testify

about their conclusions violated the personal knowledge requirement of Rule 602.

¶ 13. The need to guard against the admission of the substance of out-of-court statements has long been recognized by the courts and commentators. The reason for the exclusion is the same as for hearsay: the fact-finder has no basis for judging the reliability of the information because the credibility of the declarant cannot be challenged. This case illustrates the problem very clearly. A truck owner who testifies that his truck was elsewhere on the...