State v. Settle ( 1982 )

Peck, J.

Defendant John A. Settle and a companion as co-defendants were tried by jury and both convicted of committing an unlawful trespass in violation of 13 V.S.A. § 3705(c). Separate appeals were instituted. The companion’s appeal was heard at the June 1981 Term of this Court, and the judgment was affirmed in State v. Durling, 140 Vt. 491, 442 A.2d 455 (1981).

The factual background of the offense itself is identical in all material respects to that described at length in Burling, accordingly there is no need to restate it here. To these facts, however, certain others should be added since questions relating to them, raised here, were not raised by the earlier appeal.

The offense occurred on January 22, 1980. On February 12th the brother of one of the defendants and the fiancee of the other, dressed in attire similar to that worn by the defendants on the date of the trespass, went to the residence of the complaining witness who had identified the defendants. The brother carried with him a tape recorder. Arriving at the witness’s home they knocked and when he came to the door the brother asked, “I want to know how come you think it was us that broke in.”

This stratagem was an effort to discredit the witness’s positive identification of the two defendants. The effort backfired badly; the witness was not gulled by the deception. On the contrary, he reported the incident, and the imposters themselves were taken to the police station where they were detained for a short time and released. No charges were brought against them.

In his brief appellant seeks to adopt by reference the six issues set forth in his co-defendant’s brief. Thereafter he does not brief, cite appropriate authorities, or argue the application of these issues to his own situation. His apparent intent is to incorporate the entire companion-case brief into his own, also by reference. This is questionable briefing practice. We have held, and we reiterate here that, in all but a few exceptional instances, matters which are not briefed will not be considered on appeal. Quazzo v. Quazzo, 136 Vt. 107, 111, 386 A.2d 638, 641 (1978). See V.R.A.P. 28(a) (4). Moreover, this Court will not search the record in order to sustain a claim of error inadequately briefed, or hop back and forth between briefs of co-defendants in an exploratory effort to determine what impact, if any, the claims briefed on behalf of one appellant may have on similar claims made (by reference only) for the other. It should be noted, however, that the judgment below in the companion case has been affirmed; no error was discovered. State v. Durling, supra. We see no reason for a different conclusion here.

In addition to the six points which appellant sought to incorporate into his brief by reference, he raises and briefs three issues for review. We consider them in the order presented.

First, he claims error in the lower court’s admission into evidence of the prosecuting witness’s post-crime identification.

The reference here is to testimony by the complaining witness, elicited on redirect examination, describing the ill-conceived effort on February 12, 1980, to create a serious doubt as to the credibility of the witness’s identification of the defendants.

Appellant contends that the testimony of the complaining witness was apparently admitted, first, on the grounds that the incident was an experiment, and, secondly, as a matter of custom or habit: “The offer was made for the inference that (the witness) was a person who habitually and customarily made proper identifications.”

We are not called upon to review the failed deception as being an experiment, or in the light of custom or habit. The record simply does not support either as the basis on which the testimony was admitted. Moreover, there is no necessity that a witness be one who “habitually and customarily” identifies people, i.e., that he is an “expert” in the field, if such there be, as a prerequisite to stating he recognized or did not recognize a person as someone he had identified earlier. There is even less reason for any such a foundation than for limiting sobriety opinions to experts in cases involving the effect of alcoholic beverages. See State v. LaFleche, 127 Vt. 482, 486, 258 A.2d 124, 128 (1969).

On cross-examination the witness was subjected to a long and determined effort to discredit his identification. Whatever effect the cross-examination may have had on the jury in weakening the impact of his initial identification, the State was properly allowed on redirect, in the discretion of the trial judge, to meet what had been developed on cross-examination, to explain away any tendency to discredit him that may have been accomplished. State v. Tatko, 119 Vt. 459, 463, 128 A.2d 663, 666 (1957). The materiality of the challenged evidence was thin, but in the light of the attack on the ability of the witness to identify the defendants, we conclude it was not an abuse of discretion by the trial judge to admit the testimony. It 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. Control of cross and redirect examination lies within the sound discretion of the trial court. Id.

The concurring opinion, while summarizing some legitimate concerns, expresses, we believe, undue alarm. This opinion should not be construed as giving carte blanche for all negative evidence; the rules relating thereto discussed in the concurrence remain virtually intact. Nor does it open the door to any random man-on-the-street “nonidentification,” to adopt the word coined by the minority.

The “nonidentification” here did not relate either to casual passers-by, nor to persons eliminated through the traditional line-up or through an examination of photographs. The very purpose of the February 12th masquerade was to disparage the witness’s credibility, i.e., his ability to identify the defendants. When this same credibility is as ably and exhaustively challenged as it was on cross-examination, we cannot agree that it was legal error (even if not prejudicial) to permit the questioned testimony on redirect. We hold only that under the facts and circumstances surrounding the offer made in the matter before us, and the purpose for which the offer was made, the admission of the testimony was a matter of judicial discretion. We will not frustrate that broad power by an unyielding insistence upon general rules, when, as here, we are satisfied that a special factual situation justified the trial court’s decision.

Secondly, appellant contends the trial judge erred in excluding a tape recording of a conversation between the complaining witness and the two people who appeared at his residence on February 12, 1980. Admission was sought to show a claimed inconsistency between the recorded conversation and the witness’s testimony as to the same interchange. If there was an inconsistency in fact, and a proper foundation established for admission of the tape, it might have been admissible for purposes of impeachment, although not to establish a fact. State v. Young, 189 Vt. 535, 538, 433 A.2d 254, 256 (1981).

On redirect, the witness gave the following account of the conversation:

The gentleman said, “Are you [giving the name of the witness] ?” At that time I opened the door and said, “Yes, I am.” And at that time the gentleman asked me why I had thought that they had broken into my house. And I answered as close as I can remember to, “Who axe you? I don’t know you.” And the gentleman said thank you and left.

During the presentation of his case, appellant offered a tape recording of the same conversation, made by the brother of one of the defendants to show the actual conversation was not the same. The court listened to the tape out of the hearing of the jury and while much of it was inaudible, the following was recorded:

The Brother: I want to talk to you about the alleged break in.

Witness: Yeah, what about it?

The Brother: I want to know how come you think it was us that broke in.

Witness: What break in?

The Brother: All right. (Inaudible)

We will say at the outset that even if the recorded excerpt is the complete conversation between the brother and the witness, and there is no clear verification that it is, we are not impressed by appellant’s claim of inconsistency. The two accounts are not contradictory, one with the other. The witness’s account at trial is inconsistent only to the extent it is not word for word the same as the taped version. Indeed, if it were, it might suggest that the witness had merely “learned his lines” like an actor, and was reciting them by rote. In the courtroom, he was called upon to repeat a short conversation which occurred three months earlier. Under the circumstances he probably did well to remember it as accurately as he did. We conclude that the statement of the witness while on the stand was not inconsistent, in the sense urged by appellant, with his prior recorded statement. Moreover, even if the two statements were inconsistent, the proper foundation was not laid for introduction of the tape. At no time during the long and searching cross-examination of the complaining witness by counsel for appellant was the earlier statement called to his attention, nor was he questioned about it; there was every opportunity to do so. Appellant’s counsel was well aware of the tape while examining the witness; it was in the possession of the defense. The tape was properly excluded and no error appears. State v. Young, supra. See also State v. Dragon, 128 Vt. 568, 570, 268 A.2d 913, 914 (1970).

Appellant’s concluding assertion is that the admission of the complaining witness’s testimony concerning his post-offense confrontation with the two people who came to his residence, and the exclusion of the tape, combine to produce prejudicial and, accordingly, reversible error. Since we have found no fault with either ruling of the trial judge, appellant’s last contention is unavailing; two negatives do not unite to form an affirmative.

Judgment affirmed.