This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Chittenden Unit, Criminal Division. James R. Crucitti, J.
Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.
William A. Nelson, Middlebury, for Defendant-Appellant.
Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, Edward A. Brill and Rebecca L. Berkebile of Proskauer Rose LLP, and Karen A. Newirth, Barry C. Scheck, and M. Christopher Fabricant, New York, New York, for Amicus Curiae The Innocence Project, Inc.
Present: Reiber, C.J., Dooley, Skoglund, and Robinson and Crawford,, JJ.
[¶1] Defendant Harold D. Porter, Jr. appeals from his conviction for attempted kidnapping. He argues that the trial court erred in (1) refusing to grant a motion for a new trial because the prosecution failed to disclose important expert testimony; (2) admitting the testimony of police officers that they had ruled out other suspects based on interviews with out-of-court declarants; (3) admitting eyewitness identification testimony; (4) failing to dismiss the case for failure to preserve and test potentially exculpatory evidence; and (5) excluding the testimony of defendant's expert on police procedures. We reverse and remand.
[¶2] The following facts were established at defendant's March 2012 trial. On the evening of September 9, 2009, the complainant was walking home along Colchester Avenue in Burlington when an unknown man attacked her and tried to force her into the cab of a pickup truck that was parked alongside the road. He punched her repeatedly in the face and she fell to the ground. He pinned her to the ground with his knee. She started screaming " rape." At one point he shoved his finger into her mouth and she bit him. He got up and she managed to escape. She ran to a nearby house and rang doorbells until someone let her in. The assailant drove off in the truck. Police and an ambulance arrived soon afterwards.
[¶3] Several people witnessed the event and offered descriptions of the assailant and the truck to police. One eyewitness chased after the truck as the assailant left and saw that the license plate was the green color of a Vermont plate, although he could not see the numbers because they were obscured by the tailgate. The complainant described the man as a middle-aged white male with no beard or mustache who was about her height, 5'11", but could not otherwise identify him.
[¶4] While the assailant's truck was parked on the side of the road, a Chittenden County Transportation Authority (CCTA) bus passed by. Two video cameras attached to the bus captured images of the assailant's truck at the location identified by the complainant.
[¶5] In the course of their investigation, police showed the videos to the manager of a local Chevrolet dealership. He identified the truck as a light-colored Chevrolet one-ton dual-rear-wheel pickup truck with four doors, a flaring fender, a distinctive front bumper and headlights, and a contractor's rack on the back. He believed that the car was gas-powered because he did not see a diesel badge on the driver's-side door. He further believed that the truck was likely to have four-wheel drive. Based on these characteristics, he told police that the truck's vehicle identification number (VIN) would contain the sequence " K33" in the fifth, sixth, and seventh position.
[¶6] Using the VIN parameters provided by the manager of the Chevrolet dealership, the Vermont Department of Motor Vehicles produced a list of approximately twenty gray or silver trucks registered in Vermont. Police contacted the owners of each truck, and eventually ruled out every truck except for defendant's.
[¶7] Defendant was arrested and charged with attempted kidnapping, aggravated assault, and unlawful restraint. The latter two charges were eventually dismissed by the State. Defendant's first trial in July 2011 ended in a mistrial when the jury was unable to reach a verdict. A second jury trial in March 2012 resulted in a guilty verdict. ...