State v. Smith

• Decision Date: 22 February 2010
• Docket Number: No. 08-396.,08-396.
• Parties: STATE of Vermont v. Justin S. SMITH.
• Court: Vermont Supreme Court

992 A.2d 310
2010 VT 15

STATE of Vermont
v.
Justin S. SMITH.

No. 08-396.

Supreme Court of Vermont.

February 22, 2010.

992 A.2d 311

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Defendant appeals from a judgment of conviction, based on a jury verdict, of sexual assault and possession and sale of

992 A.2d 312

marijuana. Defendant contends that the court erred in: (1) denying a motion for mistrial based on the erroneous admission of evidence of uncharged prior sexual misconduct; and (2) admitting certain photographs. We reverse and remand

¶ 2. The record evidence may be summarized as follows. The victim, B.H., testified that, on March 19, 2007 she visited defendant's trailer in St. Albans, Vermont, to purchase marijuana. B.H. had known defendant for a number of years — her best friend was the sister of defendant's girlfriend — and had purchased marijuana from him on several occasions in the past. B.H. recalled that she gave defendant money for a "nickel bag," that defendant offered to share a marijuana cigarette with her, and that she "took a couple of hits." According to B.H., defendant then stood up and pulled down her shirt, which she thought was to check for a hidden wire. However, defendant then grabbed her by the arms, pushed her down a hall and into a bedroom, forcibly removed her clothes, and pushed her onto a bed. Defendant compelled B.H. to engage in oral sex, and then raped her.

¶ 3. According to B.H., defendant thereafter acted as though "nothing had happened," offered her a towel, and said something to her about not telling his girlfriend. B.H. left the trailer and returned home to take her child to a prearranged play-date, where she told a friend, E.C., about what had happened. She then returned home, informed her mother and boyfriend about the incident, and went to a hospital for an examination. B.H. later contacted the police, who took a statement and had her place a number of "monitored" telephone calls to defendant, in which she attempted — without success — to elicit admissions concerning the incident. Among other witnesses, the State called defendant's girlfriend, who testified that, during a police search of her residence, defendant admitted to having sex with B.H. A police officer present during the search testified that he overheard the conversation in which defendant "stated that he had fucked up. That he had fucked B.H. and now she was trying to say that it was rape." The investigating officer also secretly recorded a conversation with defendant in which he suggested that any sexual intercourse with B.H. was consensual.

¶ 4. As noted, the jury returned a verdict of guilty on charges of sexual assault and possession and sale of marijuana. Defendant was sentenced to an aggregate term of ten years to life. This appeal followed.

¶ 5. Defendant contends that he was denied a fair trial by the erroneous admission of evidence of prior uncharged sexual misconduct. The claim arose out of events occurring on the first day of trial, during defendant's cross-examination of E.C., the friend to whom B.H. first reported the assault. Defense counsel informed the court that, the night before trial, she had received from the state's attorney a CD recording of the police interview of E.C. To show certain alleged discrepancies between E.C.'s trial testimony and the interview, defense counsel proposed to play the recording for the witness. The state's attorney had no objection and accordingly played the CD in open court up to a certain point, when he abruptly stopped it in mid-recording. The court then observed that the recording was "getting into" certain objectionable areas, referring to E.C.'s clearly audible statement that B.H. had discussed "the fact that defendant was molesting his wife or girlfriend's daughter." Shortly thereafter, E.C. repeats the allegation, recalling that B.H. "had also mentioned that defendant had raped or molested his wife or girlfriend's daughter."

992 A.2d 313

¶ 6. A bench conference followed, in which the state's attorney requested a cautionary instruction and defense counsel moved for a mistrial. The court denied the mistrial motion on the basis that the recording had been "admitted by agreement," but invited defense counsel to comment on the prosecutor's request that it direct the jury to ignore the last part of the recording. Defense counsel declined to join in the request and renewed her motion for a mistrial, which the court again denied. The court then instructed the jury that the "last portion of the recording... was not meant for you to hear" and that it should "ignore that last statement that was made." The court further informed the jury that it would review the balance of the CD outside the presence of the jury and "figure out if there's anything else on there that we don't want you to hear."¹

¶ 7. The court and counsel then listened to the rest of the recording and identified two additional statements by the witness alluding to B.H.'s allegation that defendant had sexually assaulted his girlfriend's daughter. Although the state's attorney suggested that they refrain from playing the CD, the court agreed with defense counsel that they would "have to continue it now because we started it for the jury" and that the two statements in question would "need to be excluded."² The jury then returned, the court explained that they would hear the balance of the CD except for certain "objectionable material," and the CD was played in open court. Although defense counsel then completed her cross-examination of E.C....