State v. Haner , 2007 Vt. 49 ( 2007 )

State v. Haner (2005-272)
2007 VT 49[Filed 01-Jun-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 49No. 2005-272
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit
Harold Haner, Sr. January Term, 2007
Nancy Corsones, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
General, Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Davenport, Supr. J., Specially Assigned
¶ 1. JOHNSON, J. Defendant Harold Haner, Sr. appeals the district
court's denial of his motion for a new trial. He claims that the district
court erred by: (1) refusing to grant use immunity to his brother who had
previously made exculpatory statements, and (2) ruling that several
proffered documents containing confessions by his brother were inadmissible
hearsay. We affirm.
¶ 2. In October 2000, defendant was convicted of aggravated sexual
assault on his daughter, A.H. We affirmed the conviction in November 2001.
In late February 2002, defendant's brother, who was seventeen at the time,
went with their mother to the state police and confessed to the crime for
which defendant had been convicted-sexually assaulting A.H. in March 1999.
Defendant's brother then proceeded to write twenty-three letters to various
parties, including defendant, expressing his guilt.
¶ 3. In June 2002, defendant filed a motion for a new trial based on
newly discovered evidence, attaching a sworn affidavit by his brother that
included a confession to the sexual assault. An evidentiary hearing on the
motion was held on July 30, 2003. At the hearing, defendant's brother
testified that he had come to court to confess to a crime that he had
committed. He further testified that he had waited so long to come forward
because he did not believe his brother could be convicted of a crime he did
not commit, and that he had only written a note to their mother confessing
to the sexual assault when he feared defendant would go to jail. When
defendant's brother was asked to provide details about the sexual assault,
the court cautioned him against self-incrimination and asked if he wished
to speak to an attorney before proceeding. He replied in the affirmative.
An attorney was provided to him, and from that point forward he refused to
answer questions, invoking his Fifth Amendment right against
self-incrimination.
¶ 4. Defendant subsequently filed a motion requesting that the
court "use its inherent power to grant use immunity to [his brother] and
thus require[] him to testify in the pending motion for a new trial." The
court denied the motion in September 2003. The hearing on the motion for a
new trial reconvened in March 2005. Defendant's brother again testified
that he had previously confessed to sexually assaulting A.H., however, he
invoked the Fifth Amendment when asked whether he had actually committed
the offense. In support of his motion for a new trial, defendant proffered
several sources containing confessions by his brother: statements to the
state police; letters written to defendant, A.H., and others; an affidavit;
and deposition and hearing testimony predating his invocation of the
privilege against self-incrimination. At the court's request, the parties
filed memoranda addressing admissibility of the proffered evidence under
the statement-against-penal-interest exception to the hearsay rule. V.R.E.
804(b)(3). The court deemed the confessions hearsay, and consequently
denied defendant's motion for a new trial. This appeal followed.
¶ 5. Defendant's underlying claim on appeal is that the trial court
erred in denying his motion for a new trial pursuant to Vermont Rule of
Criminal Procedure 33. He bases this claim of error on two specific
actions of the court: (1) its refusal to grant use immunity to his brother,
and (2) its exclusion of his brother's confessions as inadmissible hearsay.
For a new trial to be granted under Rule 33, the evidence must be such that
it "would probably change the result upon retrial." State v. Palmer, 169
Vt. 639, 640, 740 A.2d 356, 359 (1999) (mem.) (quotation omitted). The
ultimate decision to grant or deny a Rule 33 motion based on newly
discovered evidence is left to the sound discretion of the trial court, and
we will reverse only if the court abused that discretion. Irving v. Agency
of Transp., 172 Vt. 527, 528, 768 A.2d 1286, 1289 (2001) (mem.).
I.
¶ 6. Defendant first claims that the court erred when it failed "to
exercise its inherent power to compel [his brother's] testimony through the
grant of use immunity." He argues that our case law supports the judicial
authority to grant defense witnesses immunity under circumstances similar
to his case. To the extent that Vermont law does not explicitly support
his argument for judicial use immunity, he nonetheless claims that defense
witness immunity was warranted here to protect his constitutional right, as
a criminal defendant, to compel witness testimony in his favor. He urges
us to adopt the Third Circuit's holding in Government of the Virgin Islands
v. Smith that courts have "inherent authority to effectuate the defendant's
compulsory process right by conferring a judicially fashioned immunity"
upon witnesses whose testimony is exculpatory and essential to an
effective defense. 615 F.2d 964, 969 (3d Cir. 1980) (quoting United States
v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913(1979)).
¶ 7. In Vermont, the power to grant witness immunity lies
exclusively within the discretion of the prosecutor, and the State is under
no constitutional obligation to confer such immunity. State v. Roberts,
154 Vt. 59, 67, 574 A.2d 1248, 1251 (1990); 12 V.S.A. § 1664 (establishing
that court may issue order granting immunity to witness despite invocation
of Fifth Amendment privilege upon request by Attorney General or state's
attorney). While we have recognized exceptions to this statutory rule,
they are few and limited in scope so as not to disrupt the separation of
powers inherent in the Legislature's exclusive grant of authority to the
Attorney General and state's attorneys. 12 V.S.A. § 1664; see also R.
Schoenhaus, Annotation, Right of Defendant in Criminal Proceeding to Have
Immunity from Prosecution Granted to Defense Witness, 4 A.L.R. 4th 617, § 2
(1981) (discussing courts' reluctance to allow defendants to compel
prosecutors to exercise their legislatively granted authority to afford
witnesses use immunity).
¶ 8. Defendant claims that his case is sufficiently analogous to
two cases in which we recognized an exception to the State's discretion
under 12 V.S.A. § 1664 to necessitate court-ordered immunity for his
brother. In State v. Begins, we were concerned by the State's practice of
scheduling probation revocation hearings prior to the criminal trial on the
underlying offense because of its potential to coerce self-incrimination by
probationers. 147 Vt. 295, 297-98, 514 A.2d 719, 721-22 (1986). We held
that when a prosecutor insists on placing a probationer in the untenable
position of choosing between her right to due process at the revocation
hearing and her right to remain silent at criminal trial, the probationer's
testimony may not be used against her at trial. Id. at 298-99, 514 A.2d at
722-23. In State v. Cate, we extended this "exclusionary rule" to a
situation in which a sex offender who had testified at trial was required
by his probation conditions to admit criminal responsibility at a treatment
program, exposing him to potential perjury charges. 165 Vt. 404, 415, 683
A.2d 1010, 1018 (1996). Again, we mandated that probationers be offered
use immunity before being forced to incriminate themselves. Id. Thus, in
the limited circumstances where we have recognized an exception to
prosecutors' exclusive authority to grant use immunity, the defendant has
been faced with the difficult choice of testifying and risking
self-incrimination or remaining silent and forfeiting other important
rights. See Cate, 165 Vt. at 414, 683 A.2d at 1018 (described above);
State v. Loveland, 165 Vt. 418, 427, 684 A.2d 272, 278 (1996) (statements
made by sex offenders at sentencing are inadmissible against them at
subsequent criminal proceedings to encourage them to accept treatment
rather than emerge from prison untreated); State v. Drake, 150 Vt. 235,
237, 552 A.2d 780, 781 (1988) (evidence of crimes for which defendant has
not been charged cannot be considered at sentencing unless defendant is
offered use immunity); Begins, 147 Vt. at 297-98, 514 A.2d at 721-22
(described above). We have not extended this rule, however, to defense
witnesses who invoke the privilege against self-incrimination, and we have
likewise been cautious to limit its applicability, even to defendants, to
situations where public policy demands the availability of immunity. See,
e.g., State v. Gorbea, 169 Vt. 57, 61-62, 726 A.2d 68, 71 (1999) (declining
to expand exclusionary rule where facts did not fit "the limited exceptions
carved out in Loveland and Cate"). Particularly here, where defendant
advocates judicial use immunity not to protect his own privilege against
self-incrimination, but to compel testimony by his brother that was deemed
unreliable by the trial court, the limited exceptions articulated in
earlier cases do not support his position.
¶ 9. Nevertheless, defendant argues that the circumstances of his
case implicate important public policy considerations and thus warrant an
expansion of the exclusionary rule. Without judicial use immunity, he
claims, he cannot compel witnesses in his favor and the "fair
administration of justice" will be thwarted. Defendant relies solely on
the Third Circuit's holding in Smith, and urges us to adopt it. 615 F.2d
at 969. Smith held that courts have an inherent power to grant witness
immunity to vindicate a defendant's constitutional right to present
exculpatory evidence crucial to his case. Id. Recognizing the potential
for judicial use immunity to seriously encroach upon the realm of the
executive branch, however, the court emphasized the need for "special
safeguards" in determining whether to grant such immunity. Id. at 971-72.
As such, barring prosecutorial misconduct, it limited the judicial power to
grant defense witness immunity to situations where "the proffered testimony
[is] clearly exculpatory; the testimony [is] essential; and there [are] no
strong governmental interests which countervail against a grant of
immunity." (FN1) Id. at 972, 974.
¶ 10. The Smith approach, insofar as it does not rely on
prosecutorial misconduct, has been uniformly rejected by other federal
circuit courts, as well as numerous state courts, that have addressed
judicial use immunity. See, e.g., United States v. Mackey, 117 F.3d 24, 28
(1st Cir. 1997) (rejecting Smith and holding that courts generally cannot
compel witness immunity where prosecutor has refused to do so); United
States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988) (same); United
States v. Turkish, 623 F.2d 769, 778-79 (2d Cir. 1980), cert. denied, 449
U.S. 1077 (1981) (same); see also Schoenhaus, supra, ¶ 7. But, we need
not reach the question of whether the Smith approach to judicial immunity
is a sound one because defendant fails to meet the minimum requirements of
that decision. Contrary to defendant's assertion that the mere proffer of
his brother's facially exculpatory testimony triggered the court's inherent
power to grant defense witness immunity, Smith requires that the defendant
"make a convincing showing . . . that the testimony which will be
forthcoming is both clearly exculpatory and essential to [his] case" before
the court may compel immunity. 615 F.2d at 972. Thus, the court may
evaluate the credibility of the proffered evidence, and is not required to
simply take it at face value. See United States v. Sampson, 661 F. Supp.
514, 519-20 (3d Cir. 1987) (explaining that application of the "clearly
exculpatory" requirement in Smith should include consideration of "the
trustworthiness of the evidence that the defendant offers").
¶ 11. Like the trial court, we are unpersuaded by defendant's
assertion that his brother's statements regarding the sexual assault of
A.H. were clearly exculpatory. Defendant's daughter alleged that the crime
took place in defendant's trailer while his wife and other children were
asleep in other rooms. Nonetheless, throughout the pretrial investigations
and trial, not a single mention was made of the brother's potential
presence in the trailer at the time of the offense. Defendant's son
testified that he could not recall defendant's brother ever sleeping in his
room; however, defendant's brother claimed that he slept there on the night
of the assault. While A.H. testified that she heard her assailant leave
her room through a doorway to the hall and shortly thereafter saw defendant
walk into the room, defendant's brother claimed that he hid at the foot of
her bed as defendant entered the room. Each of these inconsistencies cuts
against the trustworthiness of the proffered evidence, and the trial court
was justified in considering them.
¶ 12. In addition to these inconsistencies, the circumstances
surrounding the confession diminish its credibility. Defendant's brother
waited until approximately three years after defendant was first accused to
come forward with his confession. By that time, defendant's appeal had
been taken and denied, presenting the opportunity for his brother to tailor
his confession to the facts and theories already on the record. See State
v. Haner, No. 2000-577, (Vt. Nov. 21, 2001) (unreported mem.).
Furthermore, defendant's brother acknowledged to the police that he was
aware that, as a juvenile, he would be subject to a lesser punishment than
defendant. When asked by the police why he waited so long to confess,
defendant's brother answered that his sister-in-law "was trying to, um, she
was the one that was trying to find out what to say, not what to say but
um, where to go to report it." Both the officer who took the statement and
the judge who heard the testimony at trial reasonably questioned the
credibility of the statement.
¶ 13. Finally, the familial relationship between defendant and his
brother calls into question the veracity of any exculpatory statements by
defendant's brother. See Sampson, 661 F.Supp. at 521 (suggesting that a
close relationship between witness and defendant undermines the credibility
of the proffered testimony in the Smith "clearly exculpatory" analysis).
Particularly given the testimony of a sheriff's deputy and intern at the
state's attorney office, the court had reason to find the confession
suspect. The deputy testified that during a July 2003 hearing, she sat
behind defendant's brother and two women who appeared to be his aunts. She
overheard defendant's brother tell the women: "We'll be all right as long
as he doesn't do it again when he gets out." In light of the increased
motive of close relatives to fabricate exculpatory evidence, the
inconsistencies between the confession and witnesses' testimony, and the
general circumstances surrounding the confession, we agree with the trial
court that defendant failed to make a "convincing showing" that the
proffered testimony was "clearly exculpatory." Because defendant failed to
meet the first element of the test for judicial use immunity that he
advances, the trial court did not err as a matter of law when it declined
to grant immunity to defendant's brother.
II.
¶ 14. Defendant next asserts that the trial court erred by refusing
to admit his brother's exculpatory statements into evidence as statements
against penal interest. V.R.E. 804(b)(3). The trial court is afforded
broad discretion in determining the admissibility of hearsay under Rule
804, and we will not upset its decision "unless there has been an abuse of
discretion resulting in prejudice." State v. Fisher, 167 Vt. 36, 39, 702
A.2d 41, 43 (1997). Here, as noted in our discussion above, defendant
failed to make a sufficient showing of the exculpatory statements'
reliability, and therefore the court deemed the confessions by his brother
inadmissible hearsay.
¶ 15. Under Rule 804(b)(3), statements that are otherwise hearsay
are nonetheless admissible if they are contrary to the declarant's penal
interest when made. Where a statement tends to inculpate the declarant,
and thereby exculpate the defendant, it is inadmissible "unless
corroborating circumstances clearly indicate the trustworthiness of the
statement." V.R.E. 804(b)(3). In evaluating the trustworthiness of the
exculpatory statements made by defendant's brother in this case, the court
relied on State v. Corliss, where we stated that to satisfy the condition
imposed by Rule 804(b)(3), the defendant must "establish that the
[declarant] had both motive and opportunity to commit the crime" 168 Vt.
333, 336, 721 A.2d 438, 441 (1998).
¶ 16. In its analysis, the trial court found that although defendant
established that his brother "had sufficient motive to corroborate his
confession," he could not similarly show an opportunity to commit the
crime. Despite defendant's contention that he met the corroboration
component of Rule 804(b)(3) through his own testimony and that of his
mother and son, to the effect that defendant's brother sometimes slept over
at the trailer, the court exercised its discretion appropriately. The
court took into consideration conflicting testimony regarding when
defendant's brother may have been at the trailer and where he might have
slept while there, if he slept there at all. Even if defendant met his
burden of showing that his brother had the opportunity to commit the
sexual assault, however, the court was not required to disregard the
plethora of evidence undermining the trustworthiness of his brother's
statements.
¶ 17. The trial court also properly considered the source of the
confession, defendant's brother, in determining its trustworthiness. See
United States v. Bobo, 994 F.2d 524, 528 (8th Cir. 1993) (asserting that
"certain close relationships, such as the sibling relationship, have long
been recognized to diminish the trustworthiness of hearsay statements
against the declarant's penal interest"). Further weighing against the
reliability of the confession were the circumstances under which it was
made, its inconsistency with other evidence in the record, as well as the
suspicious statements made by defendant's brother to the police, supra, ¶
12, and to his two aunts, supra, ¶ 13. Defendant attempts to
counterbalance this evidence of the confession's noncredibility by arguing
that "repetition of hearsay equals corroboration" and that his brother's
twenty-three letters expressing his guilt therefore provide adequate
corroboration for his statements. Defendant, however, misinterprets our
decision in State v. Gallagher, in which we upheld a trial court's decision
to admit hearsay statements made by a child-victim of sexual assault to a
teacher and social worker. 150 Vt. 341, 347-48, 554 A.2d 221, 225 (1988).
In Gallagher, the trustworthiness of the statements was buttressed by "the
internal consistency and detail of the child's story, and the child's
affect, intelligence, memory and concern for the truth." Id. at 348, 554
A.2d at 225. In that case, there were no indications of untrustworthiness
similar to those here. Furthermore, there were different considerations
due to the policy underlying V.R.E. 804a-that "child-victims' early
communications are often highly trustworthy." Reporter's Notes, V.R.E.
804a. Given the lack of corroborating circumstancing clearly indicating
the reliability of the statements made by defendant's brother, and more
importantly, the abundance of evidence indicating just the opposite, we
conclude that the trial court properly exercised its broad discretion in
treating the confessions as inadmissible hearsay.
III.
¶ 18. We conclude that the trial court did not violate defendant's
due process rights by denying his motion for a new trial. Defendant's
contention that the court "completely shutdown [his] ability to present
clearly exculpatory evidence for prosecuting his [m]otion for [n]ew [t]rial
based upon newly discovered evidence" is without merit. To the contrary,
the trial court made the appropriate legal determination that judicial use
immunity was unwarranted both under existing Vermont law and the law
advocated by defendant, and properly exercised its discretion in excluding
the hearsay statements by defendant's brother. As the confession
underpinning defendant's motion for a new trial was correctly deemed
inadmissible due to its unreliability, the court properly dismissed the
motion. See Irving, 172 Vt. at 528, 768 A.2d at 1289 (holding that we will
reverse a trial court decision on a motion for new trial only for abuse of
discretion). Defendant could not succeed on the motion for a new trial, as
the newly discovered evidence (which properly excluded the substance of the
confession) was unlikely to change the result on retrial, and therefore the
trial court did not abuse its discretion in denying the motion. See
Palmer, 169 Vt. at 640, 740 A.2d at 359 (stating that motion for new trial
is granted only if circumstances meet a stringent test, including whether
the evidence is likely to change the result on retrial).
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Two additional requirements for judicial use immunity were articulated
by the Smith court. Neither of these requirements-that immunity be
properly sought in the district court and that the defense witness be
available to testify-is at issue here. Id. at 972.