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State v. Scales

Supreme Court of Vermont

January 20, 2017

State of Vermont
Lamar Scales

         On Appeal from Superior Court, Bennington Unit, Criminal Division David A. Howard, J.

          Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          SKOGLUND, J.

         ¶ 1. In September 2014, defendant was tried and convicted of three felony counts of lewd and lascivious conduct with a child that occurred between June 1, 2004 and June 1, 2006. He appeals his convictions, arguing that the trial court erred in admitting consciousness-of-guilt evidence and then failing to give a limiting instruction on the use of that evidence and that the prosecutor's closing argument violated the "golden rule" by asking the jurors to put themselves in the position of a party-here, the purported victim. We reverse and remand.

         ¶ 2. K.S., the child complainant, was twelve years old when she disclosed to her mother that mother's former boyfriend, defendant, had touched her on multiple occasions when she was between four and six years old. When asked why she waited several years to disclose this touching, K.S. testified she waited because she did not want to put any more pressure or stress on her mother. The disclosure came during an argument on the phone with her mother, who was upset that K.S. had gone to a basketball game when she was supposed to be attending math tutoring with her aunt. The following day, K.S. and her mother went to the police station to be interviewed and give a written statement.

         ¶ 3. On February 28, 2013, the State filed an information with the court charging defendant with three counts of lewd and lascivious conduct with a child and applied for an arrest warrant. On March 1, the court issued the warrant requested. Defendant was arrested on the warrant on September 24, 2013, in Pennsylvania, and subsequently arraigned in Vermont on the charges. In October 2013, the State filed a Vermont Rule of Criminal Procedure 26 notice of its intent to offer, in its case in chief, evidence of defendant's behavior when arrested, arguing it was admissible as evidence of guilt. Defendant filed an objection, arguing that the encounter with the Pennsylvania trooper was seven years removed from the date of the alleged charged offenses, did not involve false information, and did not mislead.

         ¶ 4. After a hearing on the Rule 26 notice, the trial court issued an order allowing the testimony of the Pennsylvania state trooper who effectuated defendant's arrest, finding that the probative value of the evidence outweighed any prejudice to defendant. It is this so-called consciousness-of-guilt evidence that defendant challenges on appeal.

         ¶ 5. In September 2013, Trooper Michael Brown of the Pennsylvania State Police served the arrest warrant at the home where defendant was believed to be living. When defendant answered the door, the trooper asked him if he was Lamar Scales. Defendant identified himself as Shahid Nur and provided the trooper with a credit or debit card with that name on it. The trooper then told him he would be fingerprinted to confirm identification, and a woman present in the apartment told defendant to just tell the officer who he was. Defendant then said that he was Lamar Scales but that he had changed his name to Shahid Nur.

         ¶ 6. Defendant argues the court erred in admitting the testimony of the Pennsylvania trooper for two reasons[1]: first, there was no foundation that his response to the trooper was probative of consciousness of guilt as to the specific charges here, and second, because it was unduly prejudicial. We agree.

         ¶ 7. This Court has long recognized that so-called consciousness-of-guilt evidence has "little probative value, " State v. Unwin, 139 Vt. 186, 193, 424 A.2d 251, 255 (1980), even when the prosecutor can show that it is relevant to a "legitimate issue" other than propensity to commit the crime charged. State v. Winter, 162 Vt. 388, 392, 648 A.2d 624, 626 (1994) (quotation omitted); see State v. Giroux, 151 Vt. 361, 366, 561 A.2d 403, 406 (1989) (upholding jury instruction that flight has "very, very limited probative value").

         ¶ 8. We have addressed this issue most often when evidence of flight is offered as consciousness of guilt. In State v. Perrillo, we called such evidence inherently ambiguous and dependent upon multiple inferential steps:

The probative value of evidence of flight as circumstantial evidence of guilt depends upon the confidence placed on four inferential steps: "from the defendant's behavior to flight[, ] . . . from flight to consciousness of guilt[, ] . . . from consciousness of guilt to consciousness of guilt concerning the crime charged[, ] . . . from consciousness of ...

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