State v. Setien

• Decision Date: 07 January 2002
• Docket Number: No. 00-548.,00-548.
• Citation: 795 A.2d 1135
• Parties: STATE of Vermont v. Charles L. SETIEN.
• Court: Vermont Supreme Court

795 A.2d 1135

STATE of Vermont v. Charles L. SETIEN.

No. 00-548.

Supreme Court of Vermont.

January 7, 2002.

Motion for Reargument Denied February 8, 2002.

Before: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant Charles Setien appeals his conviction for larceny from the person, 13 V.S.A. § 2503, attempted assault and robbery, 13 V.S.A. §§ 9, 608, and as a habitual offender, 13 V.S.A. § 11, claiming that (1) he was denied his right to testify because the trial court ruled in limine that the State could impeach defendant with evidence of his past criminal convictions; (2) he was convicted of two crimes but committed only one; (3) the habitual offender conviction was improperly based on his change of plea in two cases for which no transcripts were available; and (4) the jury's determination that defendant was a habitual offender may not have been unanimous. We affirm.

Defendant's convictions arose from events occurring in Barre, Vermont on March 15, 1999. On that date, Viola and Victor Aldrich, both in their seventies at the time, were home watching television when defendant entered their home looking for Victor. Victor and Viola collected, bought and sold coins for many years, and kept some of their collection at home. Defendant told Victor, who was disabled and could not get out of his chair, that he wanted to buy some coins. Victor told defendant that they did not sell coins from their home at night. Although Victor told defendant that the coins were at the bank in a vault, defendant insisted that the couple had coins in their home. Viola became nervous, called to her grandson who lived upstairs, and asked him to call the police.

Meanwhile, the couple gave defendant permission to use their telephone so he could call for a ride. After hanging up the phone, defendant again tried to persuade Victor to sell him some coins. Victor refused. Defendant then ordered the couple to open their safe, threatening to kill them with a gun he said he possessed if they did not comply. When the couple continued to refuse defendant's demands, he reached under the top of Viola's nightgown and ripped off a chain and a gold coin she wore around her neck, saying, "I will have one gold piece anyway." Defendant also took some foreign coins from a glass candle holder in the couple's home, and then he left. He was later arrested after a coin dealer identified him as the person who sold him the coin stolen from Viola.

Although neither Victor nor Viola identified defendant as the perpetrator immediately, they were familiar with him because he had worked on their home some time previous to March 15. At that time, the couple allowed defendant to eat lunch in their home, and they discussed coin collecting with him. Defendant has a distinctive lisp, but again neither Victor nor Viola mentioned that to the police right after the crime took place. They also failed to identify him by name after a photo lineup. Eventually, the couple were able to tell the police that defendant was the person who entered their home that evening. Defendant was thereafter convicted, and he appealed to this Court.

Defendant first argues that he was denied his right to testify because the court ruled unfavorably on his motion in limine to exclude impeachment evidence consisting of his prior convictions for false pretenses and attempt to defraud. In response, the State argues that defendant failed to preserve this claim for review because he did not testify at trial; therefore, the evidence was never admitted. The State asks us to adopt the United States Supreme Court's decision in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), requiring a criminal defendant to testify in order to raise and preserve for appellate review a claim of improper impeachment through evidence of prior convictions. Because the record in this case is sufficient for us to find no abuse of discretion in the court's in limine ruling, we do not reach the State's request regarding Luce v. United States.

Whether to admit evidence of prior convictions for impeachment purposes is within the trial court's discretion. State v. Emerson, 149 Vt. 171, 178, 541 A.2d 466, 470 (1987). The standard for exercising that discretion appears in V.R.E. 609 as well as State v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981). Rule 609(a)(1) allows the State to attack a criminal defendant's credibility with evidence of a prior conviction for a crime "whose statutory elements necessarily involve untruthfulness or falsification," unless the court determines that the probative value of such evidence is "substantially out-weighed by the danger of unfair prejudice." V.R.E. 609(a)(1). Although subsection (a)(1) of Rule 609 shows a preference for admitting prior convictions involving falsification or untruthfulness, 1989 Reporter's Notes, V.R.E. 609, the court must assess probative value and prejudice in accordance with a variety of factors set out in State v. Gardner. See State v. Ashley, 160 Vt. 125, 129, 623 A.2d 984, 986 (1993) (failure of trial court to adequately consider Gardner factors is grounds for reversal). Those factors include the nature of the proceeding, the nature of the crime to be used for impeachment, the length of defendant's criminal record sought to be admitted, the age of the prior convictions, defendant's age and circumstances, and the relative importance of defendant's testimony and the State's need to use the prior convictions to impeach. Gardner, 139 Vt. at 460-61, 433 A.2d at 251-52.

In this case, the State argued below that the credibility of its only two eyewitnesses, Viola and Victor Aldrich, was essential to its case. The need to impeach defendant's credibility, should he decide to testify and deny he was present in the Aldrich home on March 15, was therefore critical. Defendant responded that the State had a strong circumstantial case against him, defendant was the only witness who could possibly counter the State's numerous witnesses, and the prior crimes would be unduly prejudicial because they were similar to the crimes at issue in the present case. On appeal, defendant's argument centers on the trial court's alleged failure to adequately consider his need to testify. Defendant never made an offer of proof concerning what his testimony might have been, however, had he decided to testify. Also, defendant does not dispute that false pretenses and attempt to defraud are crimes involving untruthfulness, and therefore are highly probative of credibility.

We agree with the trial court that the probative value of the prior convictions was not substantially outweighed by the danger of unfair prejudice in light of the defense's expected attack on the ability of the elderly eyewitnesses to recall and correctly perceive the events, and to recognize the perpetrator. At trial, defendant's cross-examination of the Aldrichs focused on their failure to immediately identify defendant when the police arrived at their home, Viola's failure to identify defendant by name during a photo array, Viola's ability to see and to correctly recall what happened, Victor's apparent failing memory, and the fact that the couple knew defendant from previous encounters.

Defendant is correct that the State offered other incriminating evidence implicating defendant, but that evidence was primarily circumstantial. Moreover, defendant vigorously impeached that evidence where possible. The credibility of the State's only eyewitnesses was therefore crucial to the State's case. Under the circumstances, there was a greater need to explore all avenues which would help the jury determine whether to believe the victims or defendant, assuming defendant decided to testify. See State v. DeJoinville, 145 Vt. 603, 606, 496 A.2d 173, 175 (1985) (where outcome largely depends on credibility of witnesses, Court recognizes greater need to use prior convictions to help jury determine which witness is more believable). The trial court exercised its discretion appropriately, particularly where defendant failed to make an offer of proof supporting his asserted need to testify in his own defense.

Defendant next argues that if he committed any offense, it was a single crime and he was erroneously charged and convicted of two. He believes only one crime occurred because his acts all took place in a single location, within a few minutes and with a partially fulfilled, single purpose — to steal gold coins. There were two victims on the evening of March 15, 1999, however — Victor and Viola Aldrich — and the crimes against each were supported by different facts. Cf. Jackson v. State, 209 Ga.App. 53, 432 S.E.2d 649, 650-51 (1993) (two separate robberies occurred during same course of events where property stolen from pawn shop in front of shop's owner and property taken from person of owner's wife); Hatcher v. State, 274...