State v. Robar

• Decision Date: 27 September 1991
• Docket Number: No. 88-341,88-341
• Citation: 157 Vt. 387,601 A.2d 1376
• Parties: STATE of Vermont v. Donald ROBAR.
• Court: Vermont Supreme Court

Page 1376

601 A.2d 1376

157 Vt. 387

STATE of Vermont v. Donald ROBAR.

No. 88-341.

Supreme Court of Vermont.

Sept. 27, 1991.

William Sorrell, Chittenden County State's Atty., Burlington, and Pamela Hall Johnson and Gary Kessler, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

The defendant, Donald C. Robar, appeals from his conviction by jury for burglary in violation of 13 V.S.A. § 1201(a), arguing that testimony from an inquest was improperly considered, the evidence was insufficient to sustain his conviction, and the deferred sentence statute is unconstitutional. We hold that the evidence was insufficient to sustain the conviction as a matter of law, and reverse.

I.

Defendant was charged with breaking into the Fish Bank Restaurant in South Burlington in December 1985 and stealing $25 worth of beer and $100 worth of pork ribs. The charge resulted from a June 10, 1986 inquest held by the state's attorney to aid the South Burlington Police Department with the investigation of the burglary.

At the inquest, the State took sworn testimony from Tracy Atkins who testified that she was with defendant and her brother Brian Atkins one night shortly before Christmas in 1985 when they stopped near the Fish Bank Restaurant. She testified that her brother and defendant told her that they were going to the Fish Bank, and left her alone in the car for about fifteen minutes. They returned carrying two cases of beer, three or four packs of wine coolers, and fifty pounds of pork ribs. She testified that she knew the restaurant was closed when defendant and her brother went there, and that she "knew what they were going to do." She stated that the three then returned to her apartment where they ate the ribs and drank the beer.

The State called Tracy Atkins to testify at the trial, but she claimed no recollection of the events occurring on December 23, 1985. She remembered testifying at the inquest in June of 1986, but did not recall what she had said. Reading a transcript of her testimony at the inquest failed to refresh her memory. She testified, however, that at one time she remembered the events of the night of December 23, 1985, and that her testimony at the inquest was the truth as she knew it at the time when she remembered those events.

Over defendant's objection, the court then allowed the State to read the inquest testimony into evidence with the state's attorney reading the question and Atkins reading her inquest answer. In this manner, the jury heard Atkins' inquest testimony.

The State also presented other testimony from police officers involved in the investigation, and from the manager of the Fish Bank at the time of the burglary. These witnesses testified about the specific details of the burglary, such as what was stolen, and the method of entry. The only evidence presented that identified defendant as one of the perpetrators, however, was the recorded recollection of Tracy Atkins. The case was submitted to the jury, which found the defendant guilty.

Defendant raises three arguments on appeal: (1) Atkins' inquest testimony was not properly admitted into evidence, and thus may not support defendant's conviction; (2) even if Atkins' testimony was properly admitted, it was insufficient to sustain a conviction; and (3) the court's failure to consider deferral of sentence pursuant to 13 V.S.A. § 7041 in spite of the State's refusal to consent was unconstitutional as a violation of the separation of powers. Because we find the evidence insufficient to support the conviction, we reverse defendant's conviction and do not reach the third issue.

II.

Defendant first challenges the admissibility of Tracy Atkins' inquest testimony. The trial court admitted the testimony as past recollection recorded, under V.R.E. 803(5), which permits the admission of

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable [her] to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in [her] memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Documents admitted under Rule 803(5) must meet three foundational requirements:

"(1) The document must pertain to matters about which the declarant once had knowledge; (2) The declarant must now have an insufficient recollection as to such matters; (3) The document must be shown to have been made by the declarant or, if made by one other than the declarant, to have been examined by the declarant and shown to accurately reflect the declarant's knowledge when the matters were fresh in [her] memory."

State v. Paquette, 146 Vt. 1, 3, 497 A.2d 358, 360 (1985) (quoting People v. Kubasiak, 98 Mich.App. 529, 536-37, 296 N.W.2d 298, 302 (1980)); see also State v. Lander, 155 Vt. 645, 645, 582 A.2d 128, 128 (1990) (mem.) (statement is inadmissible if foundational requirements not met). There is no dispute that the foundational requirements were met in this case.

Defendant's complaint is that the inquest testimony was never admitted, although it was before the jury. Thus, defendant argues that the inquest testimony could not be used to convict him. See State v. Paquette, 146 Vt. at 5, 497 A.2d at 361 (prior statement that was never admitted into evidence could not be used to convict). Defendant misperceives how past-recollection-recorded evidence is admitted. As the rule states, the record "may be read into evidence" but it may not be received as an exhibit. V.R.E. 803(5). This limitation is "to avoid the danger that undue weight might be given to the document itself." Reporter's Notes, V.R.E. 803(5). In this case, the document was read into evidence in the question-and-answer format, exactly as the rule contemplated. It was admitted and could be relied upon by the jury.

III.

The next issue is whether Atkins' inquest testimony was sufficient evidence to sustain the defendant's conviction. Defendant argues that because of the nature of the evidence and his inability to cross-examine Tracy Atkins as to her inquest testimony, it alone cannot prove guilt beyond a reasonable doubt.

The standard for sufficiency of the evidence is that, "taken in the light most favorable to the State and excluding modifying evidence, there [must be] sufficient evidence to fairly and reasonably support a finding of [guilt] beyond a reasonable doubt." State v. Papazoni, 157 Vt. 337, ----, 596 A.2d 1276, 1276 (1991); see also State v. Derouchie, 140 Vt. 437, 445, 440 A.2d 146, 150 (1981) (standard in all cases is "whether the evidence, when viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt"). In using this standard, we are concerned with both "the quality and strength of the evidence." Derouchie, 140 Vt. at 444, 440 A.2d at 149. Evidence that gives "rise to mere suspicion of guilt, or [leaves] guilt uncertain or dependent upon conjecture" is insufficient. State v. Partlow, 143 Vt. 33, 37, 460 A.2d 454, 456 (1983).

For purposes of this case, it is also important to distinguish between admissibility and sufficiency. Evidence that is admissible as bearing on a fact in issue, including the guilt of the defendant, may be insufficient standing alone to convict. Id. (evidence of flight). As Chief Justice Barney emphasized in State v. Ravenna, 151 Vt. 96, 100, 557 A.2d 484, 486 (1989), there is a distinction between evidence and proof: "Concluding that the case lacked direct proof is not the same as concluding that it lacked direct evidence. There may be evidence that does not amount to proof...."

The leading case supporting defendant's claim is United States v. Orrico, 599 F.2d 113 (6th Cir.1979). In Orrico, the government offered as sole proof of defendant's guilt two statements admitted under two separate hearsay exceptions. The first statement, prepared in the course of an investigation by the Ohio Department of Insurance, was admitted as a past recollection recorded under Federal Rule of Evidence 803(5), which is identical to the Vermont rule. The second statement, presented as testimony before a grand jury, was admitted as a prior inconsistent statement under Rule 801(d)(1)(A). Both statements were made under oath and the declarants appeared at trial, but the declarants testified that they were unable to remember the specific events that implicated defendant. Defendant was convicted solely on the prior statements of these witnesses. The Sixth Circuit Court of Appeals reversed, expressing concern that "the central element of the crime with which the defendant was charged was established entirely through the use of out-of-court statements, made at a time when the defendant had no opportunity to cross-examine the witnesses as to the accuracy of their accusations." Orrico, 599 F.2d at 117.

The court stated that in some "unusual" cases, such as where a "purely technical element" was being established solely through statements of past recollection recorded or prior inconsistent statements, this evidence might be considered sufficient. Id. at 118. Such statements "may be used to corroborate evidence which otherwise would be inconclusive, may fill in gaps in the Government's reconstruction of events, or may provide valuable detail which would otherwise have been lost through lapse of memory." Id. at 119. Where such evidence is the only support for a central element of the case, however, it is insufficient to support a conclusion of guilt beyond a reasonable doubt. Id. at 118.

Most other courts considering the issue have relied on Orrico in holding that prior inconsistent...