State v. Robillard

• Decision Date: 28 February 1986
• Docket Number: No. 83-649,83-649
• Citation: 508 A.2d 709,146 Vt. 623
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Donna ROBILLARD.

Page 709

508 A.2d 709

146 Vt. 623

STATE of Vermont v. Donna ROBILLARD.

No. 83-649.

Supreme Court of Vermont.

Feb. 28, 1986.

Shelley A. Hill, Windsor County Deputy State's Atty, White River Junction, for plaintiff-appellee.

Bruce M. Lawlor and Deborah S. McCoy, Springfield, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

PECK, Justice.

Defendant Donna Robillard appeals her conviction of operating a motor vehicle while she was under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). The alleged offense occurred early in the morning of July 30, 1983, in the town of Springfield, Vermont. Trial was by jury with a verdict of guilty. Post-trial motions were heard and denied; judgment was entered on the verdict. We remand for further proceedings.

Defendant's appeal asks this Court to review two issues. First, she contends the court below erred in denying her motion, couched in the alternative, for a judgment of acquittal, V.R.Cr.P. 29, or for a new trial, V.R.Cr.P. 33. ^* The motion was based on the ground of newly discovered evidence resulting from recanted testimony by one of the State's witnesses. Second, defendant argues that she was denied her right to a fair trial because the judge ordered the courtroom doors locked during the actual trial proceedings. However, the doors were open for public access before the commencement of proceedings and during recess periods.

The evidence was conflicting, particularly on the question of whether defendant had consumed sufficient liquor, before operating her car, to place her under the influence. Nevertheless, in reviewing the sufficiency of the evidence to sustain a conviction, we will view the evidence in the light most favorable to the State, and exclude the effect of any modifying evidence. State v. Nash, 144 Vt. 427, 433, 479 A.2d 757, 761 (1984).

Considering the evidence in the context of the standard recited above, the facts as presented at trial may be summarized as follows. State's witness William H. Garrow, III, who described himself as a former boyfriend of the defendant, and who was living with her on the date of the offense, testified that he arrived at a Springfield bar sometime between eight and nine o'clock in the evening of July 29, 1983. According to Garrow, defendant was already in the bar when he arrived. They did not sit together during the course of the evening, but he bought and sent to her table "four or five drinks." There was no direct evidence that defendant consumed any of these drinks; she denied drinking any of them and testified that she just left them on her table. It was not disputed that she did have one drink furnished by another friend.

Although they were not in each other's immediate company while in the bar, Garrow and the defendant left together around midnight in the latter's car; defendant was driving. An argument broke out between the two almost immediately. Still within sight of the bar, Garrow opened the car door and either jumped or fell out. As a result, he was rendered unconscious, although he was not seriously injured. Defendant immediately stopped her car and ran back to look after her friend.

Shortly after the accident, an officer of the Springfield police department arrived at the scene and an ambulance was summoned. Garrow was taken to the hospital and defendant was permitted to accompany him in the ambulance. The officer talked briefly with defendant at the scene and noted the odor of liquor on her breath. He talked with her again at the hospital, and noticed that she swayed as she walked, and again he detected the odor of liquor on her breath. The officer maintained he asked defendant twice whether she had taken anything to drink since the accident; she responded twice that she had not. The officer then arrested defendant and took her to the police station for processing. Breath testing disclosed a blood-alcohol level of .209%, and relation-back testimony at trial estimated a level of .13% at the time of operation.

The defense evidence tended to show that she had taken no more than one drink in the bar, and that a friend who was with her at the hospital gave her more to drink there from a bottle and a flask that the friend happened to have in his car. However, another witness testified that he had not seen defendant drinking at the hospital. Defendant denied that she told the officer she had nothing to drink since the accident.

I.

A.

The sole issue raised by a motion for acquittal under V.R.Cr.P. 29 is "whether the prosecution has introduced evidence fairly and reasonably tending to show the defendant's guilt, that is, whether the jury on that evidence would be justified in finding guilt beyond a reasonable doubt." State v. Poirier, 142 Vt. 595, 599, 458 A.2d 1109, 1111 (1983) (citation omitted); State v. Menard, 142 Vt. 47, 49, 451 A.2d 1100, 1101 (1982) (the standard of proof in criminal cases is guilt beyond a reasonable doubt). We reiterate that, on appeal, we will view the evidence in the light most favorable to the State, excluding the effect of modifying evidence. State v. Nash, supra, 144 Vt. at 433, 479 A.2d at 761. Furthermore, the credibility of the witnesses and the relative weight to be given their testimony are matters for the jury, as the trier of the facts, to determine. Claude G Dern Electric, Inc. v. Bernstein, 144 Vt. 423, 426, 479 A.2d 136, 138 (1984). Applying the above standards to the evidence as summarized above, we hold the jury was justified in finding the defendant guilty beyond a reasonable doubt. The motion for a judgment of acquittal was properly denied.

B.

During the course of his testimony at trial, the State's witness Garrow stated under oath that he had several discussions with defendant since the night of the accident and that defendant told him of a scheme to escape conviction: she and others would testify that she had not been present in the bar that night, but went there only in response to a phone call from him (Garrow) asking that she come and drive him home. Garrow stated also that defendant told him she intended to testify that she had been drinking only at the hospital. Much of the case presented by the defense tracked this alleged conspiracy. On the other hand, the defense sought to impeach Garrow's credibility with evidence tending to show that he was no longer living with defendant, that his leaving had been the result of disagreements with her, and that Garrow had, since leaving her, harassed defendant and her young daughter with unwelcome and threatening phone calls.

Apparently defendant and Garrow reconciled their differences after the trial. Shortly thereafter Garrow approached defendant's counsel, informing him that his testimony at trial relating to a conspiracy was a fabrication, and that he had lied on the stand. Defendant's motion requesting a new trial was then filed, on the ground of newly discovered evidence based on the above information transmitted by Garrow.

At the hearing on the motion Garrow reiterated that he had lied about the defendant's conspiracy. After hearing Garrow's recantation testimony, the court denied the motion. Judgment was then entered on the guilty verdict.

The effect of recanted testimony by a witness for the prosecution in criminal cases is a matter of first impression with this Court. We must decide what standard should be used for granting a new trial when newly discovered evidence reveals that a government witness may have committed perjury at trial.

We find that, among the various jurisdictions which have addressed the problem, two tests or standards have emerged. The first of these is commonly referred to as the "possibility standard." When this standard is applied, a new trial may be granted when, assuming the court is reasonably well satisfied that the recanted testimony of a material witness was, in fact, false, and the party seeking a new trial was taken by surprise when the false testimony was given, or did not know of its falsity until after the trial, then a new trial should be granted if the court finds that, without the testimony, the jury might have reached a different conclusion. United States v. Wallace, 528 F.2d 863, 866 (4th Cir.1976).

We reject this standard. It has been criticized as requiring reversal in every case, if it is applied literally. United States v. Stofsky, 527 F.2d 237, 245-46 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976). In Stofsky, the court stated "once it is shown that a material witness has intentionally lied with respect to any matter, it is difficult to deny that the jury, had it known of the lie, 'might' have acquitted." Id. at 246. In other words, this standard would require a new trial on bare possibility alone. Another criticism of the possibility rule is that the courts which give lip service to it frequently circumvent the rule by loose application. As Stofsky pointed out, even those courts which profess to apply the possibility rule rarely reverse convictions based upon recanted testimony. Id. at 246 n.10. We think, too, that the possibility standard would have the deleterious effect of encouraging bribery or the bringing of other pressures to bear on witnesses to recant their trial testimony. The underlying and serious difficulty in all recantation cases, which the mere word of the witness will seldom resolve is: when is the witness in fact telling the truth?

The Stofsky court applied the "probability standard," which is the test commonly used in ruling on a motion for new trial based on newly discovered evidence. Id. at 246. This test requires that the new evidence must not have been previously discovered or discoverable by due diligence; must be material, not merely cumulative or impeaching; and would probably alter the jury's verdict. See State v. Smith, 145 Vt. 121, 131, 485 A.2d 124, 130-31 (1984); V.R.Cr.P. 33, Reporter's Notes; 8A J. Moore, Federal Practice § 33.03(1)(2d...