State v. Webster, 94-106

• Decision Date: 15 March 1996
• Docket Number: No. 94-106,94-106
• Citation: 165 Vt. 54,675 A.2d 1330
• Parties: STATE of Vermont v. Roger WEBSTER.
• Court: Vermont Supreme Court

Page 1330

675 A.2d 1330

165 Vt. 54

STATE of Vermont v. Roger WEBSTER.

No. 94-106.

Supreme Court of Vermont.

March 15, 1996.

Robert L. Sand, Department of State's Attorneys, Montpelier, for plaintiff-appellee.

David J. Williams of Sleigh & Williams, St. Johnsbury, and Thomas P. Donnellan of Moore & Donnellan, Derby, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Defendant appeals multiple assault convictions, arguing that the trial court erred by (1) excluding for substantive purposes certain evidence regarding an alleged affair between the complaining witness, defendant's wife, and the chief investigating officer, and (2) denying a motion for new trial based on newly discovered evidence, namely an answering machine tape purporting to show defendant's wife threatening the officer. We affirm.

I.

Defendant was convicted of seven counts of simple assault. Five of the assaults were against his wife, one was against his older daughter, then eleven, and one was against his younger daughter, then eight. ¹ Defendant's wife testified that she and her children had endured several years of physical and emotional abuse while living with defendant. The two children also testified, describing the abuse they suffered, and corroborating some of the abuse directed at their mother. The State also presented the testimony of several corroborating witnesses. One witness testified that she had observed bruising on defendant's wife. Another witness testified that he had counseled defendant's wife about the abuse. The corroborating witnesses also established that defendant's wife had revealed the abuse and sought relief as early as February 1990, more than two years before the local sheriff, who was the chief investigating officer, became involved in the case.

On appeal, defendant argues that his rights to confront witnesses and present a defense were violated because the trial court refused to permit defendant to pursue his theory of the case. Defendant sought to undermine the credibility of the complaining witness, defendant's wife, by presenting evidence regarding alleged romantic involvement between defendant's wife and the sheriff. Although the court permitted much of the relevant testimony for impeachment purposes, the court instructed the jury that they were not to determine whether the affair took place, but only to consider the evidence in deciding whether or not they believed defendant's wife and the other witnesses.

The trial court excluded the evidence under V.R.E. 403, which permits the exclusion of relevant evidence where the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." The trial court has discretion to balance these factors, and we will not disturb the trial court's ruling absent a showing of an abuse of that discretion. State v. Cartee, 161 Vt. 73, 75, 632 A.2d 1108, 1110 (1993). In criminal cases, however, the broad discretion of the trial court in evidentiary matters is limited by defendant's constitutional right to confront witnesses against him and by the demands of due process. Id. at 76, 632 A.2d at 1110; State v. Covell, 146 Vt. 338, 341, 503 A.2d 542, 544 (1985).

We note first that defendant has overstated the extent to which the trial court limited his presentation of his defense. Defense counsel was free to cross-examine the three complaining witnesses about possible motives to fabricate the charges. For example, defense counsel presented to the jury the possibility that defendant's wife had fabricated the charges either to gain advantage in her pending divorce action, or to divert attention from her own pending criminal charges. Defense counsel did succeed in impeaching defendant's wife with respect to the alleged affair, by calling two witnesses to contradict her denial of the affair. The first, an acquaintance of defendant's wife, testified that defendant's wife had confided in her about the affair; the second, a deputy sheriff, testified that he went to the sheriff's camp one night, saw defendant's wife's vehicle parked there, heard voices inside, but received no response to his greeting until the sheriff emerged and came down the driveway just before the deputy left. As defense counsel stated more than once during the trial, the defense theory of the case was that "[defendant's wife] lacks credibility," and the trial court's limiting instruction was not inconsistent with that theory. Rather, the court's instruction was intended to remind the jury not to be distracted by the conflicting evidence regarding the affair. ²

Regardless, the trial court acted within its discretion by limiting the evidence to impeachment purposes. Defendant presents a theory that defendant's wife conspired with the sheriff to concoct a story of abuse and coach defendant's daughters to support the story. Had defendant had evidence to support such a theory, that evidence certainly would have been admissible. All defendant offered, however, was evidence tending to show that defendant's wife and the sheriff had an affair. Defendant chose not to pursue the "coaching" theory during cross-examination of the children. The sheriff was not called as a witness by the State, and gave no testimony in support of the charges against defendant, so any possible bias of the sheriff was not relevant. As defense counsel repeatedly argued during the trial, the principal issue in this domestic abuse case was the credibility of the complaining witnesses. Evidence as to the sheriff's actions and motives had no bearing on the credibility of defendant's wife and children. We agree with the trial court that evidence of the alleged affair had minimal probative value, but was very likely to confuse the issues at the trial and mislead the jury.

Defendant argues that this case is analogous to Cartee, in which this Court reversed the defendant's sexual assault convictions and remanded for a new trial because the trial court excluded evidence that the complaining witness may have fabricated the charges. In Cartee, however, the defendant presented a coherent theory explaining the claimed motive to fabricate, and made an offer of proof supporting that theory. Specifically, the defendant, a bookkeeper who had worked for the complainant's stepfather, claimed

that (1) the investigation of the stepfather for fraud was underway before any allegations of sexual assault; (2) soon after the investigation started, the stepfather threatened defendant in an attempt to get him to remain silent about his knowledge of the business; (3) complainant's mother met with defendant's brother and proposed an arrangement whereby the sexual assault charges would be dropped in return for defendant's signed agreement not to testify further against the stepfather; and (4) thereafter, complainant and his mother met with the state's attorney in an effort to have the sexual assault charges dropped.

161 Vt. at 74-75, 632 A.2d at 1109-10.

This case may be distinguished from Cartee on several grounds. Here, the trial court was particularly concerned that the jury not be distracted by the conflicting evidence regarding the alleged affair, the fact of which was never conclusively established. The possibility for prejudice was thus greater than in Cartee, where the fact of the fraud investigation was undisputed. Also, we emphasized in Cartee that because the only evidence against the defendant was the victim's uncorroborated...