State v. Tester (2006-051)
2007 VT 40
[Filed 11-May-2007]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
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to press.
2007 VT 40
No. 2006-051
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont
Unit No. 1, Windham Circuit
Dwight Tester, Sr. December Term, 2006
Katherine A. Hayes, J.
David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro,
for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1. DOOLEY, J. Defendant Dwight Tester, Sr., was convicted
after a jury trial of aggravated sexual assault of his daughter, D.T.
While his direct appeal was pending, defendant moved for a new trial under
Vermont Rule of Criminal Procedure 33 on the grounds of newly discovered
evidence. The trial court denied his motion, concluding that there was no
reasonable probability that defendant's proffered evidence would have
changed the outcome of his trial. Defendant appealed, arguing that the
court erred in evaluating the relevance and admissibility of the evidence.
We affirm.
¶ 2. The record indicates the following. Defendant was charged with
aggravated sexual assault in April 2003. The State relied on D.T.'s
hearsay statements at trial to establish defendant's guilt. Its evidence
showed that in April 2003, when D.T. was seven years old, she told her
foster mother that defendant had come into her room, knelt by her bed, and
touched her vagina. See State v. Tester, 2006 VT 24, ¶ 4, 179 Vt. 627, 895
A.2d 215 (mem.). Following this disclosure, D.T. was interviewed by a
Bellows Falls police detective, and an investigator with the Department for
Children and Families (DCF). At the interview, D.T. reiterated that
defendant had come into her room and touched her, and she indicated that
the touch was "inside" her vagina. Id. ¶ 8. The assault apparently
occurred at defendant's home in Bellows Falls, not long after D.T. and
several siblings relocated to Vermont from Texas, where they had been
living with their mother. We affirmed defendant's conviction on appeal,
concluding that D.T.'s hearsay statements were properly admitted at trial,
and that the evidence was sufficient to establish defendant's guilt. Id. ¶
1.
¶ 3. In October 2004, more than one year after his conviction and
during the pendency of his direct appeal, defendant filed a Rule 33 motion
for a new trial. He asserted that he had just discovered a videotaped
interview of D.T. and her older sister K.T., which took place on December
3, 2002, approximately four months before he allegedly sexually assaulted
D.T. Defendant argued that the videotape was exculpatory evidence that the
State was constitutionally obligated to disclose under V.R.Cr.P. 16 and
Brady v. Maryland, 373 U.S. 83, 87 (1963) and that the State's failure to
disclose this evidence entitled him to a new trial.
¶ 4. The court denied defendant's motion after a hearing. It made
the following findings. D.T. and K.T. were interviewed at the Springfield
DCF office in December 2002 at defendant's prompting. One week earlier,
defendant had described alleged acts of sexual abuse perpetrated against
D.T. by "her mother's boyfriend" to a detective in the Springfield Police
Department. At that time, defendant expressly acknowledged the children's
upcoming DCF interview.
¶ 5. The children's interview was conducted by the Springfield
detective and the same DCF investigator who would later interview D.T.
about her allegation that defendant sexually assaulted her. The interview
focused on whether the children had been abused by their mother or her
boyfriends while they were living in Texas. The interview consisted mainly
of conversation between K.T. and the police detective. K.T. described
abuse and neglect in their mother's home. She stated that her mother told
her about sex and had sex in front of her. K.T. theorized that D.T. had
engaged in inappropriate sexual contact with their younger brother because
her mother had "taught her" such behavior. K.T. also stated that one of
her mother's friends had touched her.
¶ 6. D.T. spent most of the time during the interview playing with
toys and wandering around the room. Her statements were limited, but
included descriptions of physical abuse by her mother, description of an
incident where she was in the bathroom and one of her mother's adult male
friends came in and pulled down his pants and boxers, a statement that her
brother stabbed the friend in the leg, a statement that the friend
"touched me," and a nodding-of-the-head response to a question whether
D.T.'s mother had taught her to engage in conduct that included improperly
touching her brother.
¶ 7. The Springfield detective forwarded copies of the videotaped
interview to law enforcement authorities in Texas. The DCF investigator
retained an audiotape of the interview, which she turned over to a staff
person at the Springfield DCF office responsible for such items. The tape
was not made part of the children's file or the family's DCF file, but was
instead placed in a box of similar taped interviews that related to many
Springfield DCF cases. Neither the DCF investigator nor the Springfield
detective made any report to the Windham County State's Attorney's office
or to the Bellow Falls Police Department regarding this interview until
June 2004, when defendant requested a copy of the videotape. The record
does not indicate whether such a report would be normal, but we note that
the Town of Springfield is in Windsor, not Windham, County.
¶ 8. As noted above, in April 2003, the Bellows Falls police
detective interviewed D.T. with respect to the instant case, and the same
DCF investigator was also present. The Bellows Falls detective did not
learn that D.T. had been previously interviewed by the Springfield
detective and the DCF investigator until June 2004, when, at defendant's
request, he was asked to obtain any tape or other record of such an
interview by the Windham County's State's Attorney's Office.
¶ 9. Based on these and additional factual findings, the court
turned to defendant's legal arguments. While defendant filed his motion
for a new trial based on "newly discovered evidence" under Rule 33, he
argued that the State had committed a Brady violation by failing to
disclose the videotape, and that the suppression of this information caused
a due process violation sufficient to warrant a new trial. The court
evaluated the evidence in light of the standard applicable to this claim.
It explained that under Brady and its progeny, if the State failed to
disclose exculpatory evidence in its possession, a new trial would be
warranted only if the omitted evidence was material, that is, if "there is
'a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.' " United
States v. Petrillo, 821 F.2d 85, 88-89 (2d Cir. 1987) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)); see also United States v.
Agurs, 427 U.S. 97, 112 (1976).
¶ 10. In this case, the court explained, D.T.'s credibility was the
sole issue at trial. Thus, if the State failed to disclose any evidence
that directly bore on her credibility, it was potentially exculpatory, and
if such evidence was in fact material, then a new trial would be required.
The court found D.T.'s statements regarding physical abuse and neglect by
her mother irrelevant to any of the issues at trial. The only arguably
relevant statements, the court explained, were D.T.'s very equivocal
statements about whether her mother may or may not have "taught her" to
engage in sexualized behavior by engaging in sexual activities in her
presence and her claims that: (1) mother's adult male friend came into the
bathroom while D.T. was there and pulled down his pants and boxers; (2) the
friend touched her; and (3) she touched her little brother in sexual ways.
The court concluded that all of these statements related to D.T.'s "prior
sexual conduct," and thus, would have been inadmissible at trial under the
rape-shield statute, 13 V.S.A. § 3255.
¶ 11. In reaching its conclusion, the court rejected defendant's
assertion that D.T.'s statements provided evidence that she may have been
mistaken as to who assaulted her or that mother's adult friend, or some
other person in Texas, committed the alleged offense. As the court
explained, identity was not at issue in defendant's trial. D.T. repeatedly
and clearly identified defendant as the person who touched her, and the
fact that D.T. may have also been sexually assaulted by another man while
in her mother's care was simply irrelevant. The court thus concluded that
defendant's motion was without merit. This appeal followed.
¶ 12. Defendant argues that the trial court erred in denying his
motion because it failed to consider K.T.'s statements in its analysis, and
it erred in concluding that certain evidence would have been inadmissible.
According to defendant, both children's statements were relevant and
material because they could have been used to challenge the admissibility
of D.T.'s hearsay statements before trial, and they could have been used as
impeachment evidence during trial. Defendant maintains that the admission
of the videotape also would have allowed the jury to see and hear D.T. and
her sister, and to contrast D.T.'s demeanor and acuity on the videotape
with her trial testimony. Defendant argues that evidence about abuse and
neglect was relevant as "context" evidence, that part of the videotape
evidence is not barred by the rape shield statute, and that the remainder
must be admitted despite the statute to protect defendant's constitutional
confrontation right.
¶ 13. Although we adopt a different reason, we affirm the district
court's decision. (FN1) In evaluating defendant's claim, we must first
identify what he is required to prove to prevail. These elements have
become somewhat confused because defendant has argued that he is entitled
to a new trial due to the State's violation of its obligation under Brady.
In these circumstances, defendant has generally argued that the
demonstration of a Brady violation is enough to obtain a new trial and he
does not additionally have to prove the new-trial elements set out in Rule
33. The State has taken the opposite side of this argument, asserting in
part that defendant was required to prove the elements for a new trial set
out in Rule 33 and he failed to do so.
¶ 14. To support his claim of a Brady violation, defendant needed to
show that: (1) the State suppressed evidence; (2) the evidence was
favorable to him because it was either exculpatory or impeaching; and (3)
he was prejudiced as a result of the suppression. State v. LeClaire, 2003
VT 4, ¶ 8, 175 Vt. 52, 819 A.2d 719. To warrant a new trial on the basis
of newly discovered evidence under Rule 33, defendant needed to establish
all of the following: (1) the new evidence would probably change the
result upon retrial; (2) the new evidence was discovered after trial; (3)
the evidence could not have been discovered sooner through due diligence;
(4) the evidence was material; and (5) the evidence was not merely
cumulative or impeaching. State v. Smith, 145 Vt. 121, 131, 485 A.2d 124,
130-31 (1984).
¶ 15. Although the elements of the Brady violation and those
required for a new trial overlap, they are not the same and even appear
inconsistent with respect to impeachment evidence. Nevertheless, relying
on this Court's decision in State v. Sird, 148 Vt. 35, 528 A.2d 1114
(1987), the State argues that defendant must show all of the elements of a
new-trial motion and a Brady violation to prevail. It particularly draws
on the holding of Sird that the failure to disclose the criminal record of
a witness to allow cross-examination on that basis did not meet the
new-trial standard, despite the arguable Brady violation, where the
defendant did cross-examine the witness on other points-specifically that
she "could not remember the details of the evening in question." Id. at
40, 528 A.2d at 1116.
¶ 16. We need not rely on the State's broad reading of Sird because
defendant here fails, as a matter of law, to meet an element that is in
both Brady and the new-trial standard-that is, the requirement that the
evidence on the videotape be newly discovered. For purposes of an alleged
Brady violation, we held in LeClaire:
The purpose of the first element, suppression of evidence by the
State, and Brady as a whole is "to assure that the defendant will
not be denied access to exculpatory evidence only known to the
Government." United States v. LeRoy, 687 F.2d 610, 619 (2d Cir.
1982). Therefore, where the defendant has notice of the essential
facts which would allow the defendant to take advantage of any
exculpatory evidence, and fails to do so, the defendant cannot
then argue under Brady that the prosecution suppressed or failed
to disclose such evidence. See United States v. Zackson, 6 F.3d
911, 918 (2d Cir. 1993).
2003 VT 4, ¶ 9. For purposes of a new trial motion based on newly
discovered evidence, the evidence must "be truly new and not undiscovered
merely through a lack of diligence." State v. Sheppard, 155 Vt. 73, 75,
582 A.2d 116, 118 (1990). However expressed, defendant cannot meet this
element.
¶ 17. The record shows that defendant was well aware of allegations
that D.T. and K.T. had been subjected to physical and sexual abuse while
living with their mother in Texas. Defendant reported these allegations to
DCF, and as the trial court found, he provided more detail about the
alleged abuse than did D.T. Defendant knew that the children would be
interviewed at the Springfield DCF office in December 2002, and the State's
evidence also showed that in February 2003, defendant told a DCF employee
that he had requested a copy of D.T.'s statement from the Springfield
detective. The issue of prior abuse in Texas was also discussed at trial.
Given defendant's extensive knowledge of these topics, he clearly could
have discovered the videotape through the exercise of due diligence.
¶ 18. Irrespective of any other grounds, defendant's motion for a
new trial was properly denied because the evidence that was not presented
at trial was not newly discovered.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Ordinarily, the standard of review is abuse of discretion. See State
v. Palmer, 169 Vt. 639, 640, 740 A.2d 356, 358 (1999) (mem.). In this
case, however, the district court's decision is based on a legal ruling-the
court's interpretation of the rape-shield act and its applicability to the
evidence in question. Further, we have adopted a rationale different from
that of the district court. Our holding is that it would have been an
abuse of discretion to grant the new-trial motion in view of the fact that
defendant knew of the evidence prior to trial.