State v. Houle , 162 Vt. 41 ( 1994 )

Johnson, J.

Defendant appeals her convictions, after a jury trial, of two counts of simple assault and one count of unnecessary cruelty to a person in her care. 13 V.S.A. §§ 1023, 1305. We affirm.

Defendant was a licensed practical nurse at the Medical Center Hospital of Vermont. The criminal charges against her, which stemmed from defendant’s treatment of a stroke patient, alleged that defendant slapped the victim’s legs repeatedly and shackled him to his bed at the wrists and ankles with his legs crossed. By the time of trial, the victim had died of causes unrelated to the charged conduct. During the trial, the State presented the testimony of an eyewitness who was present throughout the abusive incident, the victim’s wife, employees of the hospital, and an investigator for the Office of Attorney General. Defendant did not deny that she had restrained the victim, but claimed that her actions were necessary for the patient’s protection and her own, and were neither assaultive nor cruel. Defendant also produced the testimony of a nurse who was familiar with the victim’s medical condition and care and his need for restraint. This nurse was also used to impeach, through reputation evidence, the credibility of one of the State’s witnesses.

Defendant’s claims of error all relate to the admission of evidence. Evidentiary rulings will not be disturbed on appeal “unless it clearly and affirmatively appears that the trial court withheld or abused its discretion.” State v. Catsam, 148 Vt. 366, 383, 534 A.2d 184, 195 (1987). Thus, a ruling will stand if it has a reasonable basis. State v. Goodrich, 151 Vt. 367, 375, 564 A.2d 1346, 1351 (1989).

I.

Defendant’s first claim is that the trial court improperly admitted, over objection, evidence that the victim gave consistent accounts of the incidents underlying the charges to a hospital employee named Jean Herrick. At a pretrial conference, defendant objected on hearsay grounds. The court overruled the objection, but questioned the relevance of the evidence. The State argued that the evidence would prove that the victim was conscious at the time of the incident, and thus was able to suffer from defendant’s cruelty. The court ruled that the evidence was admissible for the limited purpose of proving the victim’s consciousness. At trial, defendant renewed her objection. On appeal, defendant argues that the evidence was improperly admitted because it was not relevant. Although the record is ambiguous on preservation, the State does not argue that defendant’s first claim of error was not preserved. We therefore treat the error as preserved and review the court’s ruling for an abuse of discretion.

Defendant contends that the testimony was not relevant because: (1) the State was not required to show that the victim was “aware” of the crime to prove cruelty, and (2) even if the victim was conscious of the cruelty inflicted upon him, the fact that his statements were consistent over time, without evidence of the content of those statements, proves nothing. In fact, evidence of a victim’s state of mind is admissible to prove an element of a crime. State v. Derouchie, 153 Vt. 29, 34, 568 A.2d 416, 418 (1989). In this case, the victim’s awareness was relevant to the State’s case because the trial court, in its instructions to the jury, defined cruelty as “intentional and malicious infliction of physical or emotional pain or suffering upon a person.” By showing that the victim was aware of what had happened to him, the State allowed the jury to infer that he had suffered physical or emotional pain. It is true in the abstract, as defendant argues, that cruelty may also be shown by evidence of physical injury. It does not follow, however, that because other kinds of evidence may prove the crime, the State’s evidence was not relevant here. See V.R.E. 401, 402.

Nevertheless, defendant argues that the State’s use of this evidence in closing argument reveals its hidden agenda — to suggest to the jury that the victim’s account of the events was consistent with that of the State’s key eyewitness, Lena Fasser, thereby accomplishing the admission of the deceased victim’s account of the events. This testimony had been offered by the State, but excluded at trial. The prosecutor’s statement that the victim “would tell you just the same thing as what Lena Fasser told you” was, therefore, a reference to facts not in evidence. It was made without objection. The objection relied on by the defense for preservation of this issue was made in relation to a different statement, i.e., the number of times Ms. Herrick had spoken with the victim. Thus, defendant can prevail only upon a showing of plain error. See State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989).

To meet the plain error standard, the prosecutor’s statement must have been “so egregious that there is no room for doubt as to its prejudicial effect and this Court is convinced that affirmance would result in a miscarriage of justice.” State v. Cohen, 157 Vt. 654, 655, 599 A.2d 330, 331 (1991) (mem.). It was patently inappropriate for the prosecutor to imply to the jury what the victim’s testimony would have been had he testified at the trial. But we do not conclude that the comment went “to the heart of a close case,” State v. Gates, 141 Vt. 562, 569, 451 A.2d 1084, 1087 (1982), or could have “tipped the scales” in the State’s favor. State v. Blair, 155 Vt. 271, 276, 583 A.2d 591, 594 (1990). The State presented a witness who was present when the incident occurred and who was able to describe the acts of abuse in detail. The credibility of this eyewitness’s testimony, and not what the victim’s testimony would have been, was the centerpiece of the trial. Though we disapprove of the prosecutor’s statement, we do not conclude that defendant’s conviction was a miscarriage of justice.

II.

Defendant’s second claim is that the State’s use of her statements to a supervisor violated her right against self-incrimination under the Fifth Amendment to the United States Constitution¹ and Chapter I, Article 10 of the Vermont Constitution.² The State introduced evidence that defendant, when informed by her supervisor that she would be suspended pending investigation of the incident, responded by asking, “Should I get a lawyer?” and then left without making any other comment. Defendant contends that she exercised her right against self-incrimination by referring to a lawyer and that use of this reference and of her failure to respond in any other way violated her right against self-incrimination. She also argues that the wrongfully admitted evidence forced her to testify.

Accepting at face value that defendant’s response to her suspension was intended to invoke her right to remain silent, that right did not attach in a meeting with defendant’s supervisor at which no police officers were present and at which defendant was entirely free to leave.³ State v. McElreavy, 157 Vt. 18, 25, 595 A.2d 1332, 1336 (1991). In McElreavy, we held that the right against self-incrimination, under both the United States Constitution and the Vermont Constitution, does not attach absent custodial interrogation or a situation approximating incommunicado interrogation in a police-dominated atmosphere. Id. The confrontation that defendant questions took place at the Medical Center Hospital with no police officers present. Defendant chose not to respond to the charges and left. Nothing about the meeting remotely suggests the kind of coercive setting necessary to invoke the right protected by the Fifth Amendment and Article 10. Defendant’s reliance on Commonwealth v. Harvey, 491 N.E.2d 607 (Mass. 1986), in which a police officer voluntarily participated in questioning by his superiors about theft from an arrestee, does not support her argument that the employment setting here was coercive. Thus, admission of defendant’s prearrest silence and her comment regarding the necessity of counsel to her private employer did not violate her right to remain silent.

III.

Finally, defendant claims that the trial court improperly admitted evidence that defendant threatened the State’s key witness, even though the State had failed to notify the defense that it intended to introduce evidence of another criminal offense as required by V.R.Cr.P. 26(c). An objection was made on relevance grounds, but not on lack of notice. Therefore, our review is limited to plain error. Roy, 151 Vt. at 23, 557 A.2d at 888.

The State concedes that it failed to give notice, but argues that it substantially complied by disclosing the information in discovery. The State misses the point of the rule. Evidence of other crimes is particularly prejudicial if introduced at trial, and is subject to special rules of admissibility. See V.R.E. 404(b), 609. The purpose of Rule 26(c) is to inform the defendant of crimes the State intends to introduce and to allow the defendant time to respond by a motion in limine or otherwise. This burden is not met by general discovery, in which the State discloses only what evidence it has. It was error to admit the evidence when the State had failed to comply with the notice requirements, but it was not plain error. As noted above, the jury had before it substantial evidence from which it could find guilt. The evidence about the threat did not result in a miscarriage of justice.

Affirmed.

1 “No person . . . shall be compelled in any Criminal Case to be a witness against himself. . . .” U.S. Const, amend. V

2 “[I]n all prosecutions for criminal offenses, a person . . . [cannot] be compelled to give evidence against himself. . . .” Vt. Const, ch. I, art. 10.

3 Similarly, because the privileged right did not attach in the meeting, V.R.E. 512(a) does not apply.