State v. Settle

Hill, J.,

concurring. In this case, the defendant challenges his conviction for unlawful trespass on two evidentiary grounds. First, he asserts that the trial court erred in allowing redirect testimony by the complaining witness concerning an incident involving the defendant’s brother. Second, he challenges the exclusion of a tape recording of the incident, which was offered by the defense to attack the complaining witness’s credibility. The majority opinion concludes that the testimony concerning the incident was admissible, because “[i]t had some tendency, however insubstantial, to show that the witness was sufficiently positive in his identification of the defendants that he did not become confused into accepting the imposters as the persons he had originally identified as the trespassers.” I write separately, because I believe this conclusion is in error.

I agree with the majority’s statement that the trial court enjoys wide discretion in the control of cross-examination and redirect. This discretion, however, does not extend to the point of admitting irrelevant or immaterial evidence. Thus, the critical question is whether the witness’s “nonidentification” meets the threshold standards of admissibility. I believe that it does not.

*66This Court has established a standard for the admissibility of all evidence: it must be logically and legally relevant. State v. Patnaude, 140 Vt. 361, 370, 438 A.2d 402, 405 (1981). Logical relevance is satisfied if the evidence tends to make the existence of a fact more probable or less probable. Yet, as Justice Underwood wrote, “[s]ome special relationship indicating a connection beyond mere similarity as to some particulars” is necessary. Id. A speculative, insubstantial tendency is not enough. “To have one fact prove another, . . . [t]hey must be linked together by the chain of cause and effect, in some assignable way, before the existence of one of the transactions will support an inference about the nature of the other.” Id. at 371, 438 A.2d at 406. The “nonidentification” evidence in this case fails the Patnaude standard.

It is essential to note what was at issue concerning the identification of the defendants on redirect examination. Three general categories of evidence are opened by cross-examination. First, the witness’s credibility could have been at issue. Second, his general ability to perceive, e.g., his eyesight and memory, could have been challenged. Third, the accuracy of his specific identification could be at issue. This final category encompasses subjects such as how long and under what conditions the witness saw the defendant, corroborating details, and the certainty of the identification. The trial court, in admitting the “nonidentification” testimony, referred to each of the three categories. The court stated that the evidence “has to do with the positiveness with which [the witness] can identify and recognize people that appear before him.” (Tr. at 215). (See also Tr. at 217, 218). The prosecution asserted that the evidence supported the witness’s credibility. (Tr. at 212). Finally, the Court noted that the nonidentification testimony reinforced the specific identification, as it supported the witness’s “ability to say that these are not the people . . . that I saw before.” (Tr. at 218). The trial court, like the majority opinion, noted that the defense had opened the door via cross-examination. (See Tr. at 217). Yet, the first mention of the “nonidentification” is on redirect, not cross-examination. Thus, admissibility turns on whether the evidence is probative under any of the three general categories.

*67The evidence clearly fails as to credibility and the witness’s general perception abilities. The only metric for testing the accuracy or veracity of the “nonidentification” is the identification, the very fact at issue. The evidence is merely cumulative. The witness could have consistently good perception, or, his perception could be consistently bad. See generally McCormick on Evidence 103-04 (2d ed. 1972).

The most beguiling, yet most suspect, ground for admissibility is that it supports the specific identification at issue. The evidence does not satisfy the prior consistent statement rule outlined in State v. Roy, 140 Vt. 219, 227, 436 A.2d 1090, 1093-94 (1981). Indeed, the evidence is not a prior consistent statement at all — it is merely a prior statement that is not inconsistent with the previous statement. This Court has, till now, required that such negative evidence show more than “a mere basis for speculation and conjecture,” to be admitted. Barney’s Admrx. v. Quaker Oats Co., 85 Vt. 372, 387, 82 A. 113, 120 (1912). “Negative evidence is relevant and admissible when it tends to prove the wcmexistence of a material fact.” 1 Wharton’s Criminal Evidence § 156, at 287 (13th ed. 1972) (emphasis supplied). See Barney’s Admrx. v. Quaker Oats Co., supra, 85 Vt. at 386-87, 82 A. at 120 (collecting examples). The witness testified that the defendants were the perpetrators. It is completely irrelevant that others were not the perpetrators. Simply put, when a witness testifies that “Y did not do it,” it tells us nothing about the accuracy of his statement that “X did do it.”

In testing identification testimony, courts are not interested in whether a witness can exclude suspects; rather we wonder whether the witness singled out the right persons. Certainty and accuracy are not proven by an ability to exclude individuals as suspects. The most unsure eyewitness would readily testify that countless individuals were not the perpetrators. Under the Patnaude standard such a “nonidentification” is logically irrelevant and, therefore, inadmissible.

Unfortunately, the majority opinion sets an unwise precedent: prosecutors may now utilize “nonidentification” testimony to buttress shaky witnesses. The majority, although purporting to limit this case to its facts, provides no principled basis for limiting this rule. Witnesses may now testify concerning who they did not select out of a line up, the *68¡mug shots they did not select, and who was not at the scene of the crime. Apparently, any attack on identification during cross-examination will now open this door, as long as the “facts and circumstances” bring the evidence within the realm of “judicial discretion.” At some point, “nonidentification” testimony will cumulate to the point of prejudice. Yet, under this decision, defendants will be remediless, as such evidence is relevant.

I would hold that the “nonidentification” testimony was irrelevant and inadmissible. I emphasize, however, that I would not reverse the conviction. Given the weight of the evidence of guilt, the error in admitting the “nonidentification” testimony was harmless error. Therefore, reversal is not warranted. See, e.g., State v. Howe, 136 Vt. 53, 60, 386 A.2d 1125, 1129 (1978) ; State v. Miner, 128 Vt. 55, 71, 258 A.2d 815, 824-25 (1969). Furthermore, exclusion of the tape recording itself was proper, as impeachment on collateral grounds is improper. See, e.g., Isabelle v. Proctor Hospital, 133 Vt. 200, 203, 333 A.2d 118, 121 (1975); State v. Teitle, 117 Vt. 190, 196-97, 90 A.2d 562, 567 (1952).

I concur in the judgment, but dissent from the reasoning of the majority. I am authorized to state that Mr. Justice Billings concurs in this opinion.