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State v. Haskins

Supreme Court of Vermont

July 15, 2016

State of Vermont
Glen Haskins, Jr.

         On Appeal from Superior Court, Chittenden Unit, Criminal Division Michael S. Kupersmith, J.

          Thomas J. Donovan, Jr., Chittenden County State’s Attorney, and Pamela Hall Johnson, Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          REIBER, C.J.

         ¶ 1. This is an attempted murder case. At trial, defendant theorized that a group of late-night club-goers with whom he was partying conspired to frame him for a stabbing that occurred in downtown Burlington shortly after two o'clock in the morning of January 15, 2012. Defendant argues that the trial court erred by excluding exculpatory testimony and by giving misleading jury instructions regarding reasonable doubt and permissive inferences. We affirm on all issues and uphold defendant's conviction.

         ¶ 2. Three important features defined this case at trial. First, there was confusion over who stabbed the victim. This confusion was created by the quickly unfolding nature of the events that led to the stabbing, the number of people at or near the scene of the altercation, the victim's inability to identify the person who stabbed him, and the incomplete and conflicting recollections of witnesses. Second, due to the lack of physical evidence linking defendant to the stabbing, the State's case relied principally on the testimony of various witnesses, including the victim, two women who witnessed the stabbing from their nearby parked car, three members of the group of club-goers, defendant's former girlfriend, defendant's surrogate mother, a trauma surgeon who treated the victim, and several Burlington Police Department officers who responded to or investigated the crime. Third, as noted, defendant's primary theory at trial was that the group of friends he was with at the scene conspired to frame him to protect the actual perpetrator among them. He emphasizes that members of the group did not implicate him in the crime until after they were initially interviewed by police.

         ¶ 3. The jury was tasked with piecing together multiple witnesses' testimony-much of which was incomplete or conflicting-into a coherent picture of what occurred that night. The following rendition of the facts is drawn from that testimony. On the night of January 14, 2012, defendant met his former girlfriend, Sarah Giles, at a pool hall in downtown Burlington. Giles and defendant had dated from the end of October 2011 until shortly before the New Year, and had lived together at Giles' apartment for part of that period. They met that night contemplating getting back together again, and they engaged in hugging and kissing at the pool hall. Giles informed defendant that she planned to go to a local nightclub later with their mutual friend, Jess Sturtevant, with whom defendant had grown up.

         ¶ 4. Giles and Sturtevant arrived at the nightclub at approximately ten-thirty in the evening and encountered Shaun Couture, Chad Limoge, Jess Cornell, and Hannah Yuric. Giles had known Cornell and Yuric since high school, but did not know Couture and was only tangentially aware of Limoge, who was Couture's cousin and Cornell's boyfriend. Defendant arrived at the club with two of his friends about an hour after Giles and Sturtevant had gotten there. Defendant and Giles continued to interact romantically at the club.

         ¶ 5. Several minutes past two in the morning after the club closed, defendant, Giles, Sturtevant, Cornell, Yuric, Couture, and Limoge went outside to get pizza at a next-door pizzeria. While they were outside, another man, Eric Hazen, who had been at the club and who Giles knew from high school, engaged defendant and Giles in a conversation. As the group waited for pizza, Cornell began yelling that she had been grabbed or punched by the victim, a stranger who was passing by on the sidewalk. Couture and Limoge confronted the victim, and an argument ensued. There was testimony from some members of the group, which was contradicted by the victim, that the victim attempted to punch Limoge but inadvertently struck Cornell instead. At that point, several members of the group-defendant, Couture, Limoge, Hazen, and Yuric-began pursuing the retreating victim to the end of the block. Giles testified that she yelled at defendant to come back, and that he did so initially but turned around again to join the others in pursuit of the victim.

         ¶ 6. The exact details of the stabbing itself are even less clear. The victim testified that he was followed around a corner by two men from the group, and when those two men confronted him, he squared up to fight. Although the victim did not remember much about the perpetrator's appearance, he recalled that one of the men, the taller of the two, lunged in towards him. The victim testified: "I just felt like a punch in my stomach, and then I knelt down . . . trying to catch my breath. And then I felt it was like wetness, and then I saw blood going down and I was like, 'Fuck, you fucking stabbed me.' "

         ¶ 7. Couture testified that defendant had stabbed the victim. According to Couture, he followed the victim down the street from where the altercation started and around the corner, at which point defendant ran past him and appeared to punch the victim in the stomach before running away. Two women who were in a parked car near where the stabbing took place testified as to what occurred and described the assailant. The woman with the clearer recollection of the altercation testified that the victim-a black man-came around the corner while being followed by two white men. According to the witness, after the victim said something like "I ain't got your shit, " the taller of the two men leaned in and made a swiping motion toward the victim's midsection, after which both white men ran off, heading in different directions once they reached the corner from which they had come.

         ¶ 8. Within seconds of being stabbed, the victim flagged down a police cruiser. Shortly thereafter, other police officers in the area encountered Couture, Limoge, and Yuric. At some point, Giles contacted defendant, who had gone to the nearby apartment of his friend, Chad Ely, the son of Emma Ely, who testified that defendant had been a close part of her family since he was five years old. Giles, Sturtevant, and Cornell then went to Ely's apartment to join defendant. The three women remained at the apartment for about half an hour, until Sturtevant was able to get hold of Yuric, at which point the women went to the Burlington police station to be interviewed. In the early morning hours of January 15, the police interviewed Couture, Limoge, Yuric, Giles, Sturtevant, and Cornell, none of whom mentioned defendant's presence at or involvement in the altercation.

         ¶ 9. After the interviews, Giles, Sturtevant, Couture, and Limoge left the police station together in Giles's car. There was conflicting testimony as to how it transpired, but during the ride Couture told Limoge, who in turn told the women, that Giles's boyfriend had stabbed the victim. Couture reported that to the police the next day. Meanwhile, Giles contacted defendant through Facebook and told him that people were saying he had stabbed the victim. When defendant responded to her message later that morning, Giles asked defendant what had happened the previous night, and he told her that they could talk about it later. Giles testified that she met defendant later that day, at which time he admitted to her that he had stabbed the victim because he thought the victim had struck Sturtevant. Giles further testified that she encouraged defendant to turn himself in to police, but when he later denied being the assailant in another Facebook exchange with her, she went to the police on January 17 and told them defendant had admitted stabbing the victim. Giles agreed to meet with defendant wearing a body wire, but during their recorded conversation he did not admit to stabbing the victim. Defendant was arrested and charged with attempted second-degree murder.

         ¶ 10. At trial, defendant's primary theory was that the group of party-goers conspired to frame him to protect the actual perpetrator among them. Apparently unconvinced by this theory, the jury returned a guilty verdict, and defendant was sentenced to twenty years to life, all suspended except for twelve years. On appeal, defendant alleges that the trial court erred by: (1) not allowing a police officer to testify that Limoge telephoned police on the morning of January 15 to report that he had overheard Giles and Sturtevant saying that defendant stabbed the victim; (2) incorrectly instructing the jury on the meaning of reasonable doubt; (3) suggesting in its intent-to-kill instruction that defendant harbored such intent; and (4) not telling the jury that it had to find each basic fact beyond a reasonable doubt in order to infer this intent.


         ¶ 11. Defendant first argues that the trial court erroneously refused to allow a police officer to testify that Limoge called police not long after he was initially interviewed to report that he had overheard Giles and Sturtevant in the car ride from the police station saying that defendant was the one who had stabbed the victim. Defendant argues that the trial court should not have excluded the testimony as hearsay because it was offered for its falsity rather than its truth. We agree that the trial court erred in excluding the testimony, but conclude that the error was harmless.

         ¶ 12. At trial, defense counsel sought to elicit testimony regarding how defendant was identified to police as the person who stabbed the victim. The following exchange occurred during defense counsel's cross-examination of Giles:

Q: If Mr. Limoge were to say to the police that on the car ride from the police station to the Champlain Farms he had overheard the girls talking about who had done it and that's . . . how he learned about who did the stabbing, would that be accurate?
. . . .
A: No.

         A similar exchange occurred during defense counsel's cross-examination of Couture:

Q: If Chad Limoge called the police after you had left the police station, 6:00, 7:00 in the morning, and called the police and said, "He knew it was [defendant] because he overheard the girls talking about it, and they said it was [defendant], " that would be the truth, would it?
A: I don't know. I know what I said, so.
Q: You didn't overhear the girls talking, saying, "Hey, we know it's [defendant] that did this?"
A: No

         ¶ 13. Later, on the third day of trial, the following exchange occurred during defense counsel's examination of the officer who answered Limoge's telephone call:

Q: Okay. At some point after Mr. Limoge leaves, did you receive a phone call from Mr. Limoge?
A: Yes.
. . . .
Q: Okay. And did you speak with him?
A: Yes.
Q: And what did he have to say?

         At that point, the prosecutor objected on hearsay grounds. Defendant stated that he was not offering the testimony for the truth of the matter asserted but rather for the fact that Limoge made the call and lied to police about Giles and Sturtevant saying that defendant was the assailant. The trial court ruled, however, that the statement was inadmissible as hearsay, and advised defense counsel that he would have to call Limoge as a witness if he wanted the testimony admitted.

         ¶ 14. The trial court has wide discretion in ruling on the admissibility of evidence. See State v. Noyes, 2015 VT 11, ¶ 13, 198 Vt. 360, 114 A.3d 1156. We will set aside evidentiary rulings only if a defendant shows "that the court's discretion was either totally withheld or exercised on grounds clearly untenable or unreasonable." State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988) (quotation omitted). The State argues that, given its wide discretion, the court had a reasonable basis for excluding the officer's testimony regarding Limoge's statements and that, even if the court's ruling was erroneous, it was harmless. State v. Madigan, 2015 VT 59, ¶ 32, ___Vt. ___, 122 A.3d 517 ("When the admission of evidence, exclusion of evidence, or propriety of argument is objected to in the trial court and raised on appeal, we review for harmless error, determining whether (1) the ruling was erroneous, and (2) if so, whether 'a substantial right' of defendant was affected.").

         ¶ 15. We conclude that the trial court erred in excluding the proffered testimony on hearsay grounds because the testimony was not offered to prove the truth of the matter asserted. See V.R.E. 801(c) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). The testimony was not offered to prove that Limoge heard Giles and Sturtevant talking about defendant being the assailant, but rather the opposite-to suggest that Limoge was lying to police about what he overheard the women saying. This does not constitute hearsay. See United States v. Hathaway, 798 F.2d 902, 905 (6th Cir. 1986) ("[S]tatements offered to prove the falsity of the matter asserted are not hearsay."); see also United States v. Brown, 560 F.3d 754, 765 (8th Cir. 2009) (holding that witness's statement to police "was not introduced for the truth of the matter asserted, but to show that he was lying, " which is not inadmissible hearsay).

         ¶ 16. Defendant contends that the error was not harmless because it undercut the defense's primary theory that the close-knit group, particularly Couture, Limoge, and Giles, conspired to falsely accuse him of stabbing the victim. According to defendant, because Limoge's telephone call to the police was the first time police were told that defendant was the assailant, if he could have shown Limoge was lying about Giles and Sturtevant saying it was him, it would have bolstered his conspiracy theory. Upon review of the record, we conclude that the trial court's error in not allowing the police officer's response was harmless.

         ¶ 17. We will uphold defendant's conviction if we find that the error was harmless beyond a reasonable doubt. State v. Lipka, 174 Vt. 377, 384, 817 A.2d 27, 33 (2002) ("We can uphold a criminal conviction, despite a confrontation clause error, if we find that the error was harmless beyond a reasonable doubt."). In conducting this analysis, we do not play the role of factfinder; rather, our focus is on the jury and whether it would have returned a guilty verdict even if the excluded testimony had been admitted. See id. (holding that error is harmless and conviction will be upheld upon determination beyond reasonable doubt that jury would have convicted even if error had not occurred). The two primary components of this determination are weighing (1) the strength of the case against defendant without the excluded evidence, and (2) the strength of the excluded evidence. Id. at 385, 817 A.2d at 34 ("The two most important factors in the harm equation we must employ are the strength of the prosecution's case without the offending evidence and the strength of the offending evidence."); see also Coy v. Iowa, 487 U.S. 1012, 1022 (1988) ("[H]armlessness must . . . be determined on the basis of the remaining evidence.").

         ¶ 18. We first examine the strength of the State's case. The State's principal hurdle in this case was identifying defendant as the person who stabbed the victim. Without question, and not surprisingly given the number of witnesses, the inebriated state of several of those witnesses at the time of the altercation, the occurrence of the assault outside at night in limited light, and the rapidity of the events that led to the stabbing, there was conflicting testimony concerning the identity of the assailant. Nevertheless, the State presented substantial evidence identifying defendant as the person who stabbed the victim.

         ¶ 19. The State presented three eyewitnesses to the stabbing, two of whom were not part of the group that defendant claims framed him. Couture was the eyewitness who was part of the group. He was identified as one of the two persons-the shorter one with a burnt orange or camouflage top-who turned the corner and approached the victim right before the stabbing. Hence, he certainly would have known who stabbed the victim. His testimony is brought into question, however, by defendant's theory that he lied to protect another member of the group. We will address this theory in more detail later.

         ¶ 20. As noted, the other two eyewitnesses were not part of the group and defendant has not suggested that they had any reason to lie about what they saw. One of the two women in the car parked nearby to where the assault occurred expressed some uncertainty about the appearance of the assailant, although she thought he was the taller of the two men approaching the victim. The other woman, however, accurately described what Couture was wearing and expressed certainty that the assailant was not him but the taller of the two men, who was around six feet tall, with a scruffy chin, and wearing a blue and green plaid zippered hoodie with a white background. The State presented substantial evidence at trial that defendant was about six feet tall and a couple inches taller than Couture, had a scruffy goatee, and was wearing a button-up blue-and-white plaid flannel shirt that Giles had given him for Christmas in December 2011. The witness who described defendant's appearance also testified that immediately after the stabbing, the two white men retreated to the street from which they had come, with the assailant then heading south and the other man heading north. This testimony was consistent with where Couture was apprehended by police and also the direction defendant would have gone to arrive at Chad Ely's nearby apartment.

         ¶ 21. To be sure, defendant points out that the disinterested eyewitness described the assailant as wearing a hooded sweatshirt with a plaid design and zipper, while other evidence indicated that defendant was wearing a button-up plaid flannel shirt that night. Moreover, defendant elicited testimony from the first officer on the scene that she saw two men running from the direction of the stabbing and that one of them she knew to be Erik Hazen was wearing a plaid sweatshirt. On cross-examination, however, the officer acknowledged that her memory of Hazen's attire was placed in doubt by the fact that the dispatches that night from her call-in indicated she had described Hazen as wearing a black jacket, which was confirmed by the testimony of other witnesses. Thus, the officer's testimony does not significantly undermine the testimony of the disinterested eyewitness that the stabber was wearing a plaid top similar in color to what defendant was wearing that night.

         ¶ 22. There was also evidence that defendant regularly carried a knife and that he had one on him on the night of the stabbing. Both Giles and Emma Ely testified that defendant regularly carried a knife on him. Giles testified that while dancing with defendant on the night of the assault she felt the knife in his pocket. The State also presented testimony that the police were unable to find defendant's knife or the shirt he was wearing the night of the assault, despite obtaining warrants and searching various locations. This is consistent with Giles' testimony that defendant told her that he got rid of the knife.

         ¶ 23. Moreover, the State presented significant evidence of defendant implicating himself as the stabber. Most notably, Giles testified that defendant told her he was the one who stabbed the victim. Although Giles was unable to obtain-at the urging of police-defendant's confession while she was wired, defendant did state to others that he had confronted the victim, that the victim punched him, and that he heard someone yell out: "Did you stab him?" Chad Ely's wife, Amanda Carr, who saw defendant when he came to their apartment after the stabbing, testified that defendant told her he had confronted the victim and got hit. Thus, defendant admitted confronting the victim around the corner and he matched the description of the stabber of the two men who turned the corner to confront the victim.

         ¶ 24. The State also presented two sets of Facebook exchanges between Giles and defendant. In the first, Giles told defendant that others were saying he was the stabber, and he responded by suggesting they talk about it later. In the second, which occurred after defendant's alleged admission to Giles and her agreement with police to aid them in obtaining a confession from him, she encouraged him to turn himself in and he denied being the stabber. He asked if he could talk to her in person because "Facebook is not a good thing." The State elicited testimony from Amanda Carr that she participated in the second Facebook conversation he had with Giles and she warned him not to meet with Giles because Giles was setting him up-which could explain why later during the wired conversation Giles was unable to get defendant to repeat his admission to having stabbed the victim.

         ¶ 25. As for the strength of Giles's testimony that defendant admitted to her that he was the person who stabbed the victim, there was very little evidence to bolster defendant's theory that she was part of a conspiracy to frame him. Indeed, both Giles and Emma Ely, defendant's surrogate mother, testified that defendant and Giles were contemplating getting back together and acted as such the night of the stabbing. There is no evidence suggesting that they had a falling out that night. Defense counsel tried to elicit testimony from Giles that she was "pissed" at defendant that night, but redirect examination revealed that her prior deposition testimony was that she was "pissed" at seeing defendant's former girlfriend staring at them from the bar- nothing more. Following the stabbing, ...

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