State v. Roberts, 86-308

• Citation: 574 A.2d 1248,154 Vt. 59
• Decision Date: 09 March 1990
• Docket Number: No. 86-308,86-308
• Parties: STATE of Vermont v. Michael ROBERTS.
• Court: United States State Supreme Court of Vermont

Page 1248

574 A.2d 1248

154 Vt. 59

STATE of Vermont v. Michael ROBERTS.

No. 86-308.

Supreme Court of Vermont.

March 9, 1990.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, and James P. Mongeon, Rutland County State's Atty., and Marc Brierre, Deputy State's Atty., Rutland, for plaintiff-appellee.

Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, ¹ JJ.

ALLEN, Chief Justice.

Defendant appeals from his conviction, following trial by jury, of kidnapping in violation of 13 V.S.A. § 2401. We affirm.

On February 23, 1984, 28-year-old Mark Knapp was reported missing by his parents after he had failed to return home the previous night. That evening, police discovered his abandoned car, a Ford station wagon, with the keys in the ignition. Knapp's body was discovered on the following day, lying on the ice at the bottom of an abandoned quarry. His hands were tied, and subsequent examination revealed four puncture wounds in his back and two on his wrist. A pair of scissors was also discovered in the quarry, and it appeared that the puncture wounds had been inflicted with the scissors prior to Knapp's death. Two sets of fingerprints were found on the interior surfaces of Knapp's automobile, one set attributable to defendant and one set to an individual named Randy Daniels.

On February 29, 1984, Randy Daniels was arrested and charged with Knapp's murder. Defendant was questioned later that evening. Initially, he claimed that he had gone to bed early on the night of February 22 and had stayed home sick the next day. Later, he admitted to having been at the quarry with Daniels on the night in question. Defendant then attempted, unsuccessfully, to strike a deal with the state's attorney regarding the incident.

Daniels was eventually charged with both kidnapping and murder. On May 22, he entered into a plea agreement with the State. Under this agreement, the State dismissed the murder charge without prejudice, and Daniels pleaded nolo contendere to the kidnapping charge and provided statements regarding the incident. Daniels provided two sworn affidavits as well as a sworn deposition. He later was a key witness at defendant's murder trial.

Daniels' account of the events leading to Knapp's death, based on his affidavits, his deposition, and his testimony at defendant's trial, was as follows: Daniels and defendant were walking along a street in Rutland when Knapp drove up, asked for directions, and offered them a drink. Daniels got into the back seat, while defendant sat in the front passenger's seat. The trio purchased beer and cigarettes with money provided by Knapp and then drove around Rutland and the area west of Rutland.

Later, Knapp pulled to the side of a dirt road and parked the car. Defendant and Daniels began a discussion about their need for money, and Knapp explained that he had no more cash. He then gave his wallet to defendant, who examined its contents and gave it to Daniels. Daniels discovered a bank card in the wallet. Defendant either "helped" or "pushed" Knapp over into the back seat of the car and handed a pair of scissors to Daniels. Defendant then drove to a nearby bank, where Daniels attempted unsuccessfully to use the bank card in the automatic teller machine. Knapp then used the card to withdraw $90 from his account, which he gave to defendant.

Defendant drove to West Rutland with Knapp and Daniels in the back seat, while Daniels again held the scissors. He parked near a quarry and instructed Daniels to tie Knapp's hands. Daniels complied, after handing the scissors back to defendant. Defendant led Knapp to the edge of the quarry, "moved his arm," and Knapp disappeared over the edge.

Defendant and Daniels drove Knapp's car to New York City, bought some food, and began the return trip. They abandoned Knapp's car in Castleton when it ran out of fuel.

On July 3, 1984, defendant was charged with assault and robbery, kidnapping, felony murder, and second degree murder. These four counts were severed on defendant's motion. The information was subsequently amended to charge first-degree murder. Defendant's murder trial lasted five days and ended with a hung jury. The trial judge declared a mistrial.

Defendant was then tried on the kidnapping charge. Daniels, however, asserted his Fifth Amendment right against self-incrimination and refused to testify. The trial judge ruled that Daniels could not properly invoke the Fifth Amendment and ordered him to testify or be held in contempt of court. Daniels, however, remained steadfast in his refusal to testify. The trial judge declared Daniels unavailable pursuant to V.R.E. 804(a)(2) and admitted Daniels' pretrial deposition and trial testimony over the objection of defendant. The judge informed the jury of the witness's unavailability. The judge's law clerk then read Daniels' deposition and testimony into the record. The jury returned a guilty verdict.

Defendant raises four arguments on appeal: (1) that the trial court infringed upon defendant's constitutional right to confront his accusers by admitting Daniels' prior testimony; (2) that the court erred by refusing to instruct the jury to use caution in evaluating the credibility of Daniels' statements read into the record and by precluding defense counsel's comment thereon; (3) that the court erred by failing to grant a mistrial after a police officer described Daniels as a follower of the defendant; and (4) that the admission of defendant's prior statements regarding his participation in Knapp's homicide placed an impermissible burden on defendant's right to testify on his own behalf. We reject each of these claims and affirm.

I.

The transcripts of Daniels' deposition and testimony at the murder trial meet the definition of hearsay in our Rules of Evidence. V.R.E. 801(c). Under V.R.E. 804(b)(1) a trial court may admit the prior testimony of a declarant who is unavailable at trial. ² The "unavailability" of a witness, however, ultimately raises "a constitutional question rather than one of the interpretation of statutorily created rules of evidence." State v. Carroll, 147 Vt. 108, 111, 513 A.2d 1159, 1160 (1986). In Carroll, we stated:

The hearsay rules and the confrontation clause ... are designed to protect similar values. California v. Greene [Green], 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970). However, the congruence is not exact, and a statement which might be admissible under the rules [of evidence] must still be subject to a more rigorous constitutional scrutiny. This is especially true of the rules' use of the term "unavailable," for the interpretation of that term determines when the proponent of a witness is excused from having to ensure that the witness is present at trial, which goes to the heart of the confrontation clause.

Id. at 111, 513 A.2d at 1160-61.

The Sixth Amendment of the United States Constitution states in relevant part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." ³ The United States Supreme Court has interpreted the confrontation clause as providing "two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987). This interpretation reflects the understanding that " 'the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.' " Carroll, 147 Vt. at 111, 513 A.2d at 1161 (quoting Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068-69, 13 L.Ed.2d 923 (1965)).

The rights conferred by the Sixth Amendment, however, are not absolute, and at times must yield to other important interests. Coy v. Iowa, 487 U.S. 1012, 1019-20, 108 S.Ct. 2798, 2802, 101 L.Ed.2d 857 (1988). Both the United States Supreme Court and this Court have therefore recognized an exception to the confrontation requirement when an unavailable witness has given testimony at a prior proceeding. See Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968); State v. Sprague, 144 Vt. 385, 391, 479 A.2d 128, 131 (1984).

In order to fall within this prior testimony exception, the proponent of the hearsay evidence must meet the rigors of a two-part threshold inquiry. The proponent must: (1) establish the unavailability of the declarant; and (2) satisfy the court that the proffered testimony possesses certain "indicia of reliability" that provide a satisfactory basis for evaluating the truth of the prior statement. Carroll, 147 Vt. at 112, 513 A.2d at 1161. While this general statement of the rule speaks in terms of the unavailability of the declarant, the critical factor is the unavailability of his live testimony. E. Cleary, McCormick on Evidence § 253, at 753-54 (3d ed.1984) [hereinafter McCormick]. Thus, a declarant physically present at trial may nonetheless qualify as unavailable by refusing to testify despite a court order to do so. V.R.E. 804(a)(2).

Defendant contends that the State could have procured the testimony of the witness by offering him use immunity from future prosecutions. In essence, defendant argues that he has a general Sixth Amendment right to demand that the State either grant immunity to witnesses of its choosing or dismiss the charges against them. The power to grant a witness immunity lies exclusively within the discretion of the attorney general and the state's attorneys. State v. Hamlin, 146 Vt. 97, 107, 499 A.2d 45, 52 (1985). ⁴ No constitutional obligation exists on the part of the State to confer such immunity. See United States v. Lang, 589 F.2d 92, 95-96 (2d Cir.1978) (U.S. attorney need not grant immunity to witness who invoked his Fifth Amendment privilege; therefore, unavailable...