State v. Young
| Decision Date | 28 May 1981 |
| Docket Number | No. 322-79,322-79 |
| Citation | 139 Vt. 535,433 A.2d 254 |
| Parties | STATE of Vermont v. Leland YOUNG. |
| Court | Vermont Supreme Court |
M. Jerome Diamond, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Robert Olsen, Law Clerk, Montpelier, on the brief, for plaintiff.
William W. Pearson of Downs, Rachlin & Martin, St. Johnsbury, for defendant.
Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.
The defendant was convicted of attempting to rape his brother-in-law's wife in April, 1977. At that time, although only sixteen, the victim was already married and was several months pregnant. That pregnancy and a subsequent one were in part responsible for a delay of the trial for two years. Another contributing factor was a venue difficulty which was discovered as the facts developed in the first attempt at a trial held in the Caledonia Circuit.
The testimony revealed a rather simple set of facts. The victim testified that she had been left at the defendant's trailer in Lyndonville by her in-laws and was to wait there for them. They lived in Newport and it was there that the victim wished to return. The defendant offered to drive her there. On the way, somewhere on a back road in the vicinity of the Sheffield-Glover town line, the defendant stopped the car and, in spite of the victim's protests and forcible resistance, committed what the jury found to be attempted rape. The town line involved is also the county line, and, until the exact point of the assault was established, it was thought to have happened in Caledonia County.
The defendant delivered the victim to the in-laws' home in Newport Center. The victim told the hired man at their farm what had happened and later that evening was taken to the Newport Hospital, where she was examined by a doctor. The next day a state trooper interviewed the defendant, advised him of his Miranda rights, and took a statement from him that was put in evidence at trial. That statement narrated the defendant's deliberate and forceful attack on the victim, her protests, and his unsuccessful attempt at penetration.
By the time of the trial, the doctor had moved out of the state. He was returned to testify under a subpoena issued under 13 V.S.A. § 6646, which held him in Vermont only one day. The defendant claims error in certain exclusionary rulings with respect to the doctor's testimony that, in part, derived from his limited availability. The doctor had been deposed before trial at his new residence. After he left following expiration of the subpoena, this deposition was offered in lieu of his further testimony. It was excluded, however, and this ruling is put forward as error.
The evidentiary issue involved arose as a consequence of the defendant's attorney's cross-examination of the complaining witness. He inquired of her as to whether she had talked to the doctor, which she conceded, but he did not inquire about any specific statements she might have made. Thereafter, with the doctor on the stand, defense counsel sought to have the doctor testify to statements made to him by the complaining witness, asserted to be inconsistent with her testimony, as a means of impeaching her credibility. In so doing, he ran afoul of the rule requiring that inconsistent statements sought to be used for impeachment must first be brought to the attention of the witness and an opportunity provided for explanation or denial. The trial court invoked the rule, as our law provides, and excluded the doctor's testimony as to statements made to him by the victim. This action is sustained. State v. Dragon, 128 Vt. 568, 570, 268 A.2d 913, 914 (1970).
Rather than suspending with the doctor and recalling the complaining witness, the examination of the doctor was continued on other matters, and he left the jurisdiction the following day. The victim was then recalled for further cross-examination to establish the missing foundation, and the doctor's deposition was offered in place of his testimony on the ground that he was then an absent witness under V.R.Cr.P. 15(g). The trial court sustained the State's objection to this procedure as well. The ruling is affirmed.
The purpose of bringing in the doctor's testimony was not for the information it contained, but to affect the credit to be given the complaining witness. Since that was the objective, the evidence is subject to the instruction that it cannot be taken by the jury, in a situation such as this, as evidence of the true facts, but only to show that the witness has not always given the same version of the event. Where the inconsistent statement is available only for impeachment and is not relevant on the factual issues, the limitation of laying a preliminary foundation by calling the statement to the attention of the testifier is not taken to be burdensome. This is especially true where, as here, the examiner had the witness on the stand and later available for recall, was fully aware not only of the inconsistent statement but of his own intention to bring it forth from a witness then available for a limited time, and had full opportunity to comply with the requirement. Under these circumstances, it cannot be said that the doctor was unavailable under Rule 15(g). The court was entirely within the bounds of its discretion in refusing to admit the statement when tendered without compliance. All of the speculative alternatives and applications for relief from the rule are undercut by the plain fact that there was no adequate justification for failing to lay the necessary foundation. That receiving it thereafter under the purported authority of V.R.Cr.P. 15(g) would amount to no more than a mere evasion of the evidentiary requirement needs no further comment.
The defendant next argues that the trial court so significantly limited cross-examination of the complaining witness that it deprived the defendant of his right to a full and fair trial. The law is very clear that limitation of the defense's cross-examination of witnesses against it requires adequate legal justification. State v. Morrill, 127 Vt. 506, 513, 253 A.2d 142, 147 (1969). The extent of cross-examination is largely within the discretion of the trial judge, however, unless abuse of discretion is shown. Id.
The issues before us on this question in this case show something quite different than the contention advanced. The court below expressly disclaimed any intention of limiting the questioning of the complaining witness by the defense. No objection persisted for review involving an excluded answer or barred question of this witness by the defense. There is no challenged ruling to which this claim of error can be ascribed.
When the discussion of limited cross-examination came up and was disavowed by the trial court, another matter was, at the time, of central concern. The complaining...
To continue reading
Request your trial
-
People v. Fontenot
...they may instead face conviction for an attempt. And all those courts have concluded the answer is yes. (See, e.g., State v. Young (1981) 139 Vt. 535, 433 A.2d 254, 258 [holding that such a provision prevented "unfair surprise"]; Patton v. State (Miss. 2012) 109 So.3d 66, 81 [similar]; see ......
-
State v. Kelley
...must first be brought to the attention of the witness and an opportunity provided for explanation or denial.” State v. Young, 139 Vt. 535, 538, 433 A.2d 254, 256 (1981) ; see also 1 McCormick, supra, § 37, at 122–23 (noting this foundation requirement attempts to prevent jury from treating ......
-
State v. James
...rape required intent not essential for completed crime of rape); Moore v. State, 969 S.W.2d 4 (Tex. Crim.App.1998); State v. Young, 139 Vt. 535, 433 A.2d 254 (1981); State v. Gallegos, 65 Wash.App. 230, 828 P.2d 37 (1992). New Jersey has held that attempt is a lesser-included offense which ......
-
State v. Devoid
...impression. While we have dealt with cases where a new charge was brought to the jury before deliberation, see State v. Young, 139 Vt. 535, 542-43, 433 A.2d 254, 258 (1981) (affirming conviction for attempted rape when defendant was charged only with rape and an attempt instruction was give......