State v. Rollins, 06-404.
| Decision Date | 14 November 2007 |
| Docket Number | No. 06-404.,06-404. |
| Citation | 2007 VT 127,944 A.2d 218 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Tony ROLLINS. |
Present: REIBER, C.J., DOOLEY, JOHNSON and BURGESS, JJ., and KATZ, Superior Judge, Specially Assigned.
¶ 1. Defendant Tony Rollins appeals his conviction after jury trial for attempted assault and robbery. He claims that the trial court erred by excluding testimony that the victim had lied in his pretrial deposition on a collateral matter, and by ordering restitution as part of defendant's sentence. We affirm the trial court's evidentiary ruling, but vacate the order of restitution.
¶ 2. Defendant's first issue on appeal is that the court abused its discretion by denying defendant's motion to present extrinsic evidence to impeach the victim's character at trial. Prior to trial, the victim testified in a deposition that he had left a job as a police officer in Wallingford, Connecticut because of family reasons. Defendant offered to prove that the victim had in fact been fired for falsifying a police report. Defendant sought to present the testimony of the police chief to contradict the victim's expected testimony that he left his police job for family reasons. The State opposed the testimony on the ground that it would violate the collateral impeachment rule of Vermont Rule of Evidence 608, and the trial court excluded it. At trial, the victim was asked again why he had left his work as a police officer in Connecticut and testified consistently with his deposition. Defense counsel was forced to accept the answer. Although the State then made use of the defense's inability to impeach the victim in its closing argument, there was no objection.
¶ 3. Defendant claims that the trial court erred in considering his objection under Rule 608, arguing instead that Vermont Rule of Evidence 404(a)(2) allows a broader range of character evidence against a victim, including what defendant claims is the victim's character trait of a propensity to lie. Defendant apparently concedes that under Rule 608(b) he was not allowed to introduce extrinsic evidence of the specific conduct of the witness for the purpose of attacking his credibility. We affirm the trial court's exclusion of this testimony because the argument made on appeal was not preserved. The entire discussion in the transcript and the pretrial motions relating to this issue centered on the defense's ability to put on evidence of a collateral matter to contradict an expected statement of the witness as to why he left the Connecticut police force. The trial court questioned counsel about Rule 608—not Rule 404—and Rule 404 was not raised by defense counsel in response. Therefore, we will not reach defendant's argument raised for the first time on appeal. See State v. Lee, 2005 VT 99, ¶ 14, 178 Vt. 420, 886 A.2d 378.
¶ 4. Defendant's second claim of error relates to his sentence, which included an order of restitution in the amount of $460. Defendant claims the State failed to prove that he caused the loss sustained by the victim. Although the restitution statute permits restitution in attempt crimes, defendant argues that there is no factual support in the trial or in the sentencing hearing that supports an order of restitution against him. See 13 V.S.A. § 5301(4) ().
¶ 5. The facts elicited at trial and at the sentencing hearing showed the following. Defendant and one or two others assaulted the victim on Main Street in Randolph, apparently because they believed he was carrying several hundred dollars. The money was not recovered. The victim testified that he lost $420 in the robbery, money that he had obtained from his mother earlier in the day, as well as a CD player. No evidence of value of the CD player was offered at trial. Because defendant was charged with attempt, the jury was asked to find only that defendant had the specific intent to rob and made a significant act in that direction but was interrupted or prevented from completing the crime. See 13 V.S.A. § 9(a). The jury was not asked to find that defendant took money or other property from the victim with the intent to permanently deprive...
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State v. Kenvin
...repeatedly “cautioned that a restitution order may not be based on conduct that was not covered by the defendant's conviction.” State v. Rollins, 2007 VT 127, ¶ 7, 182 Vt. 644, 944 A.2d 218 (mem.) (emphasis added) (holding that defendant's conviction of attempted assault and robbery could n......
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State v. Thomas
...cause serious bodily injury cannot serve as a basis for restitution. On this point, he attempts to bring himself within State v. Rollins, 2007 VT 127, 182 Vt. 644, 944 A.2d 218 (mem.), which defendant construes as holding that restitution cannot be ordered in a case where there was only an ......
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State Of Vt. v. Thomas
...cause serious bodily injury cannot serve as a basis for restitution. On this point, he attempts to bring himself within State v. Rollins, 2007 VT 127, 182 Vt. 644, 944 A.2d 218 (mem.), which defendant construes as holding that restitution cannot be ordered in a case where there was only an ......
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State v. Charbonneau, 15-192
...was convicted," and that the link was absent. 151 Vt. at 645–46, 563 A.2d at 1001 (quotation omitted).4 ¶ 12. More recently, in State v. Rollins, 2007 VT 127, ¶ 8, 182 Vt. 644, 944 A.2d 218 (mem.), we vacated a restitution order based on conduct that was not covered by the defendant's convi......