State v. Savo

• Decision Date: 06 April 1982
• Docket Number: No. 220-81,220-81
• Citation: 141 Vt. 203,446 A.2d 786
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. John S. SAVO, Jr.

Page 786

446 A.2d 786

141 Vt. 203

STATE of Vermont v.John S. SAVO, Jr.

No. 220-81.

Supreme Court of Vermont.

April 6, 1982.

Richard G. English, Addison County State's Atty., and John T. Quinn, Deputy State's Atty., Middlebury, Susan R. Harritt, Asst. Atty. Gen., Montpelier, and Dale O. Gray, Caledonia County State's Atty., on the briefs, St. Johnsbury, for plaintiff.

Andrew B. Crane, Defender Gen., William A. Nelson, Appellate Defender, and Nancy E. Kaufman, Montpelier, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and SHANGRAW, C. J.(Ret.), Specially Assigned.

BARNEY, Chief Justice.

The defendant appeals for the third time from his 1976 conviction of armed robbery under 13 V.S.A. § 608(b) for which he is presently serving a sentence of ten to fifteen years imprisonment.

The first appeal in this case was heard by the Court in April, 1978, and was dismissed under V.R.A.P. 4, as untimely filed.State v. Savo, 136 Vt. 330, 388 A.2d 391(1978).The defendant then sought post-conviction relief pursuant to 13 V.S.A. § 7131, on a claim that counsel's failure to file a timely notice of appeal violated his constitutional right to effective counsel.

The trial court agreed with the defendant.It went on to consider the merits of the claim and denied relief.The defendant appealed again.On the second appeal this Court reversed, ruling that the trial court had exceeded its jurisdiction in deciding the merits of the case, and giving the defendant leave to file a new appeal as provided for in our Rules.In re Savo, 139 Vt. 527, 431 A.2d 482(1981).This third notice of appeal was duly filed on May 14, 1981.

We now reach on this appeal the defendant's four claims of error below.The first challenges the trial court's denial of his motion to exclude proof of his prior convictions.The second questions the admission into evidence of a pair of cut-off tights which the state's attorney represented to be those worn by the defendant as a mask during the robbery.Third is a claim that pretrial and in-court identifications were erroneously admitted.And finally, the defendant charges improper and prejudicial closing argument by the prosecutor.We consider the claims in the order they were presented.

The defendant raised a defense of alibi.He brought a motion to exclude his record of prior convictions from use at trial to impeach his credibility if he chose to testify on his own behalf.This record included three separate convictions on a total of seven counts of breaking and entering, one conviction of escape, and a conviction of grand larceny over a period of three and a half years directly preceding the trial.

At hearing, the defendant argued for adoption of the federal standard for admission of prior convictions, which gives the court discretion to weigh the probative value of the criminal record against the prejudicial impact its admission would have on the defendant.His position was that absent conclusive case law in Vermont, 12 V.S.A. § 1608 should be read to give Vermont courts this same discretionary power, and that a proper exercise of that discretion in his case would require exclusion of the criminal record.

The state's attorney maintained that under Pond v. Carter, 126 Vt. 299, 229 A.2d 248(1967), there was no discretionary power in the court to exclude convictions that met the statutory requirement of being convictions for crimes involving moral turpitude occurring within fifteen years, introduced to impeach the credibility of the witness.He argued that the decision to introduce such evidence belonged solely to the state's attorney, who could proceed as a matter of right.

Although the record below reflects only the hearing on the motion and not the trial court's ruling or its basis, we can fairly conclude that the motion was denied, since defense counsel brought out the information when the defendant took the stand to testify in his own defense.

Furthermore, after filing the current notice of appeal, but prior to argument, the defendant attempted to reconstruct the mental processes of the trial court for the record on appeal, by filing a Statement of Proceedings pursuant to V.R.A.P. 10(c), for settlement and approval by the judge who decided the motion below.

A hearing on the Statement of Proceedings was held on October 13, 1981, and resulted in approval of the following statements: (1) that the record did not contain the court's ruling on the motion to exclude; (2) that the court has no present recollection of whether it had ruled on the motion; and (3) that based upon a reconstruction of events the court believes that a ruling was made following Pond v. Carter to deny the defendant's motion.

The defendant's position, based on the record as supplemented by the Statement of Proceedings, is that the trial court denied its motion to exclude the criminal record only after reading Pond v. Carter to say that a trial court has no discretion to exclude such evidence, and must admit it as a matter of right.He argues that since our recent decision in State v. Gardner held that "the cross-examination of a witness concerning prior convictions is subject to the discretion of the trial court,"139 Vt. 456, 458, 433 A.2d 249, 250(1981), the decision of the trial judge in this case was reversible error.We do not agree.

Discretionary rulings are not subject to review if there is a reasonable basis for the court's action.State v. Ahearn, 137 Vt. 253, 267, 403 A.2d 696, 705(1979).The burden of proof is on the party alleging the abuse.State v. Kasper, 137 Vt. 184, 210, 404 A.2d 85, 99(1979).To support a claim of error there must be a showing that the court failed to exercise its discretion, or exercised it for reasons clearly untenable or to an extent clearly unreasonable.State v. Ahearn, supra, 137 Vt. at 267, 403 A.2d at 705;State v. Morrill, 127 Vt. 506, 510, 253 A.2d 142, 145(1969).

Here there is no showing that the trial court considered itself bound to admit the criminal record.The defendant points to no express language which would indicate that this was the case, nor do we find anything in the record from which such a conclusion can fairly be implied.

The trial court approved the following statement:

That based upon a reconstruction of events from the best available means, including but not limited to the Court's expressed intention on the record to make a ruling and the fact that the trial of this matter commenced the same day that the Court heard oral argument so that the necessity to make a ruling was not overlooked due to a lapse of time, the Court believes that a ruling was made following Pond v. Carter to deny defendant's motion in limine.

An alternative statement, which included the following language, was also submitted by the defendant but was objected to by the state's attorney and never approved by the trial court:

The record does not contain the court's ruling on appellant's motion in limine.However, the court ruled prior to trial that the state would be able to impeach appellant with his prior convictions because the court lacked discretion under the statute to exclude such evidence.

The court's five year old impression that it "believes" it made a ruling "following Pond v. Carter," even if evidentially sufficient, would still not resolve the essential issue in this claim.Particularly when compared to the rejected statement it fails to tell us which of the competing interpretations of Pond v. Carter it was which was followed, or where it may have led.

Pond v. Carter may have been read by the trial court for the proposition that a trial judge has no discretionary power to exclude prior convictions otherwise eligible for admission under 12 V.S.A. § 1608, as the state's attorney urged.But it is also possible that the court read the case in the light cast on it by the defendant, as not precluding an exercise of discretion in the matter before it.

That this second interpretation, now well-illuminated by our decision in State v. Gardner, was before the trial court, is clear from the transcript of the hearing on the motion to exclude.There the state's attorney indicated to the court that even if Pond v. Carter were not read to require the admission of the criminal record as a matter of right, and the court chose instead to apply the balancing standard of the federal rules, it was still his position that the material would be admissible.

The defendant argues further that the failure of the trial court to exercise its discretion left him substantially disadvantaged and resulted in prejudicial error.He notes that under the criteria set forth by this Court in State v. Gardner, supra, 139 Vt. at 460-61, 433 A.2d at 251-52, the admission of his criminal record for impeachment purposes would have constituted an abuse of discretion, had discretion been exercised.

Even treating this statement as an alternative argument that the Court exercised, but abused its discretion, and assuming, arguendo, that the Gardner criteria would apply to this case, we still think the defendant's proof falls short of its mark.

The defendant maintains that his claim of alibi required him to testify in his own defense, and that once the convictions were ruled admissible he was forced to reveal his criminal record to the jury himself.He suggests that the length of that record, and the similarity of the offenses contained in it to the offense being tried, gave rise to an especially severe possibility of prejudice in his case.He cites Gordon v. United States, 383 F.2d 936(D.C.Cir.1967), which we cited with approval in State v. Gardner, supra, in support of this argument.

The State, as expected, emphasizes the probative value of the defendant's prior convictions on the issue of his credibility, and seeks to minimize the prejudicial impact of their admission into evidence.It notes that all of the convictions involved dishonesty or falsehood, that none was crime of...