State v. Spooner

• Decision Date: 13 August 2010
• Docket Number: No. 09-260.,09-260.
• Citation: 8 A.3d 469,2010 VT 75
• Parties: STATE of Vermont v. Patrick SPOONER.
• Court: Vermont Supreme Court

8 A.3d 469

2010 VT 75

STATE of Vermont

v.Patrick SPOONER.

No. 09-260.

Supreme Court of Vermont.

Aug. 13, 2010.

Megan Campbell, Washington County Deputy State's Attorney, Barre, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

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

REIBER, C.J.

¶ 1. Following a jury trial, defendant Patrick Spooner was convicted of aggravated sexual assault of a child under eighteen years of age, in violation of 13 V.S.A. § 3252(d). On appeal, he argues that the trial court violated the Vermont Rules of Evidence and the Confrontation Clauses of Chapter I, Article 10 of the Vermont Constitution and the Sixth Amendment to the United States Constitution when the trial court admitted certain tape-recorded statements from the victim rather than bringing the victim in to present live testimony. We affirm.

¶ 2. The record evidence may be briefly summarized as follows. The victim, T.S., lives with her biological father and stepmother. She had visitation time with her biological mother and stepfather before they got divorced. Defendant is T.S.'s stepfather. In December 2007, T.S. revealed to her stepmother that she and defendant had touched each other's private areas; she pointed to her chest and vaginal area. Stepmother did not immediately question T.S. following this disclosure. Soon thereafter, T.S.'s biological father entered the home, and, after prompting by stepmother, T.S. told him she had a secret. T.S. and her father went up to T.S.'s bedroom, where she recounted the same events. Her father did not pursue further details at this time, but notified the police the same day.

¶ 3. T.S. was interviewed a total of three times. Three days after her father notifiedthe police, she completed her first interview with an investigator from the Department for Children and Families (DCF) and a police officer. It lasted approximately forty-five minutes and was recorded. The interview took place at a neutral child advocacy center where children are interviewed in cases of suspected sexual abuse. The interview initially focused on veracity-whether or not T.S. knew the difference between lying and telling the truth. The interview's focus then shifted to a number of incidents of abuse that occurred between T.S. and defendant. The DCF investigator described T.S. as shy and nervous but "quite frank" in her recounting of the events.

¶ 4. The second interview took place in January 2008 with the DCF investigator and a police officer present. The second interview was also recorded and took place at the same child advocacy center. The focus of this interview was to determine whether T.S. had ever seen defendant's penis. T.S. indicated that she had, at least twice. The third interview occurred in April 2008 with only the police officer present. Between the second and third interviews, the DCF investigator and the police officer learned about a specific tattoo located on defendant's penis. As a result, the focus of this third interview, which was not recorded, was on whether T.S. knew about defendant's tattoos. T.S. was able to describe some of defendant's tattoos, but did not recall the one on his penis.

¶ 5. Before trial, the State, citing Vermont Rule of Evidence 804a, moved to admit T.S.'s statements made to her stepmother, her father, the police officer, and the DCF investigator.¹ In January 2009, the court held a pretrial hearing on the State's motion to admit these statements. Defense counsel argued that having four witnesses describe the disclosures was unnecessarily cumulative, unfairly prejudicial, and would improperly bolster T.S.'s credibility. Defense counsel also argued that the statements were inadmissible under Rule 804a because they did not have substantial indicia of trustworthiness and were prepared for a legal proceeding. The court concluded that the statements made to T.S.'s stepmother and father contained substantial indicia of trustworthiness and were admissible under Rule 804a. As for the statements made to the DCF investigator and the police officer, the court concluded that these statements were also trustworthy and did not appear to be "rehearsed or the subject of suggestion." The court, however, held that T.S.'s statements to the DCF investigator and to the police officer were unnecessarily duplicative, and that, as a result, only one of these witnesses could testify at trial about T.S.'s statements regarding the alleged abuse.

¶ 6. All four proposed witnesses testified at the two-day trial. T.S.'s stepmother and father testified regarding her statements made to them, consistent with the court's pretrial order. The State called the police officer to testify about the general investigation, rather than as an 804a witness. T.S.'s biological mother, who was previously married to defendant, testified about T.S.'s relationship with defendant and about the night of the incident that led to charges being filed. In addition, T.S. testified during the State's case-in-chief. Defensecounsel cross-examined T.S. and drew out various inconsistencies between T.S.'s live testimony and her past statements.

¶ 7. Following these witnesses, the State explained that it still intended to play T.S.'s recorded statements when the DCF investigator took the stand. The court asked what purpose would be served by playing the recorded statements now that T.S. had already presented live testimony. The State responded that before the commencement of trial the parties reached a stipulation whereby portions of the recorded statements would be played during the State's direct examination of the DCF investigator. The State explained that "it would be better, potentially for both parties, that the jury could hear exactly what [T.S.] had said and exactly how the questions were posed." Defense counsel acknowledged that he previously agreed to this approach but said that he stipulated to the admission of these statements under the assumption that T.S. was not going to testify. Defense counsel argued that, after T.S.'s live testimony, the recorded statements were unnecessarily duplicative and prejudicial to the interests of defendant.

¶ 8. In chambers, following the State's expert's testimony, the State asserted that the recorded statements were necessary to rebut defense counsel's attack of the credibility of the complaining witness and to corroborate T.S.'s testimony and therefore outweighed any prejudice to defendant. Defense counsel reiterated his concern that the recorded statements would be cumulative because T.S. testified in the State's case-in-chief. The court concluded that, under State v. Gallagher, the child's testimony in the State's case-in-chief did not preclude admission of 804a statements. 150 Vt. 341, 344, 554 A.2d 221, 223 (1988). The court confirmed that defense counsel maintained the right to compel T.S. to return to court the following day.

¶ 9. The DCF investigator then took the stand, and the State played the stipulated portions of the recorded statements from the first interview. Defense counsel cross-examined the DCF investigator, challenged T.S.'s "word," and raised inconsistencies in the testimony and statement of T.S. Following cross-examination, defense counsel moved for a directed verdict, which the court denied. Defendant then took the witness stand and began to present his version of the facts. At the close of the first day of trial, defense counsel stated that he had subpoenaed T.S. for the next day and that he would play recorded statements from a deposition of T.S.

¶ 10. At the start of the second day of trial, while in chambers, the court noted its concern about T.S. being brought in to testify a second time. Defense counsel responded that he wanted to recall T.S. to ask her about three things: (1) a discrepancy between her live testimony and recorded statements regarding the time of day an incident of alleged abuse by defendant occurred; (2) a discrepancy between her live testimony and a statement made in a deposition regarding whether defendant left to use the bathroom during an incident of claimed abuse; and (3) a statement in her deposition regarding the death of a neighbor's son, which defense counsel argued related to T.S.'s credibility because the veracity of the story was uncertain.

¶ 11. Defense counsel agreed with the court that, as to the first two requests, they could be served by playing portions of the recorded statements from the first interview and the deposition.² When thecourt asked about the third proffered need for T.S.'s testimony, defense counsel acknowledged its irrelevance. The court therefore allowed defense counsel to play recorded statements from T.S.'s interview and deposition for the first two purposes, but did not allow defense counsel to offer evidence regarding the alleged death of the neighbor's son. The court made no explicit ruling, nor were there any objections on the record in chambers or when courtroom testimony resumed. Rather, the parties voluntarily agreed that defense counsel would play excerpts from the two tapes in lieu of T.S.'s live testimony.

¶ 12. Defense counsel opened the second day of trial with excerpts from one of the statements taken in the recorded interviews and the deposition of T.S. The first excerpt, from the first interview with the DCF investigator and the police officer, revealed discrepancies in T.S.'s testimony regarding the time of day an incident of abuse allegedly occurred. The second excerpt, from a deposition, revealed that T.S. had previously stated the defendant did not leave during an episode of abuse, while her live testimony indicated that he left momentarily. Defense counsel cited both discrepancies in closing arguments. After the close of testimony, the jury asked to rehear T.S.'s recorded statements-those introduced by both the State and defendant-from the interview with the DCF investigator and police officer. The jury found defendant guilty of...