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State v. Larkin

Supreme Court of Vermont

February 16, 2018

State of Vermont
v.
Daniel L. Larkin

         On Appeal from Superior Court, Windham Unit, Criminal Division Katherine A. Hayes, J.

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Rebecca Turner and Amanda Isaacs, Appellate Defenders, Montpelier, for Defendant-Appellant.

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

          SKOGLUND, J.

         ¶ 1. Defendant Daniel Larkin appeals his conviction of second- degree aggravated domestic assault. Defendant argues that the trial court's exclusion of evidence of complainant's previous conviction for providing false information to a police officer (FIPO), offered by defendant to impeach complainant, deprived defendant of a fair trial. We agree that the trial court erred in excluding the evidence and that the error was not harmless. Accordingly, we reverse.

         ¶ 2. On December 9, 2015, defendant was charged with first-degree aggravated domestic assault under 13 V.S.A. § 1043(a)(1) and second-degree aggravated domestic assault under 13 V.S.A. § 1044(a)(2)(B). Both charges arose from a series of events on the night of December 8, 2015 involving defendant and complainant. The first-degree aggravated domestic assault charge was based on an allegation that defendant had strangled complainant while they were in a motel room. The second-degree aggravated domestic assault charge was based on an allegation that, later the same evening, defendant recklessly inflicted injuries on complainant when defendant ordered her out of his car and left her on the side of the road.

         ¶ 3. Prior to trial, the State filed a motion in limine to preclude defendant from questioning complainant about (1) her prior FIPO conviction and "other fighting behavior, " (2) her pending probation violation charge, (3) her prior drug history, and (4) the fact that she was expelled from a drug-rehabilitation center two days prior to the alleged assault. On April 21, 2016, a hearing was held on the motion and the trial court issued a written entry order. The trial court determined that evidence of complainant's history of substance abuse and mental health treatment and her probation status and violations was irrelevant and would be excluded. However, the trial court determined that evidence of complainant's FIPO conviction was admissible for the purpose of impeachment under Rule 609 of the Vermont Rules of Evidence and that evidence of complainant's conviction of simple assault might be admissible if defendant presented evidence sufficient to raise a claim of self-defense.

         ¶ 4. A jury trial was held on April 26 and 27, 2016. On the first morning of trial, before opening arguments, it became clear that complainant would not be present to testify. Defendant argued that the trial court should exclude complainant's 911 call and statements to responding police officers on the grounds that they were hearsay and violated his right to confrontation. See generally Crawford v. Washington, 541 U.S. 36 (2004); State v. Shea, 2008 VT 114, 184 Vt. 453, 965 A.2d 504. The trial court rejected both of these arguments and admitted the statements because they were given in response to an ongoing emergency and were excited utterances.

         ¶ 5. The following evidence was introduced through the State's witnesses' testimony and complainant's 911 call. On the evening of December 8, 2015, complainant attempted to rent a motel room but was denied because her name was on the "do not rent" list. Complainant, upset with the decision, left the motel. About fifteen minutes later, defendant entered the motel and rented a room for the night. Later that night, the clerk received a noise complaint from a room neighboring defendant's room complaining of "horrible yelling and banging." The clerk testified that she called defendant's room and spoke to a female, who sounded like complainant. The female apologized, explaining that she had dropped her suitcase.

         ¶ 6. Later, the clerk answered a phone call from defendant's room. She could not get anyone's attention but could hear the same female voice in the background crying and yelling. The clerk hung up and called back, but there was no answer. The clerk then walked outside and saw a crying female walking across the parking lot. The clerk testified that the female's boots made a similar clicking sound to the boots complainant was wearing when she attempted to rent a room earlier in the evening.

         ¶ 7. Shortly after midnight, the Vermont State Police received a 911 call from complainant. The dispatcher who received the call testified that, when she first picked up the phone, she heard "[a] lot of mumbling and moaning and [a] very frustrated voice." An audio recording of the 911 call was played for the jury. During the 911 call, complainant made the following statements: "He hurt me so bad"; "He kicked me in the stomach it's really hard for me to breathe"; "Why did he have to punch me in the face"; "He pulled my hair out"; and "I'm in pain, I'm in a lot of pain." Complainant also identified defendant, by name, as the "he" to whom she was referring. Brattleboro Police Department officers were dispatched and found complainant crying by the side of the road about one mile from the motel. The responding officers testified that complainant's hair was disheveled, both of her eyes were black and blue, there was a bump on her forehead, and she had no shoes on.

         ¶ 8. The ambulance personnel who responded to the scene testified that complainant was in the same physical state as described by the officers' testimony. Further, they testified that complainant said her boyfriend strangled her and hit her at a motel, then dragged her from a car, punching and kicking her. A treating nurse at the hospital where complainant was brought testified to complainant's same physical appearance and that complainant said her boyfriend had beaten her up and kicked her out of a car.

         ¶ 9. After complainant was transferred to a hospital, police officers went to the motel to locate defendant. Defendant was not there, but the room was in disarray. The officers testified that clothing and pills were scattered on the floor and that the bathroom door was not on its hinges and was missing. Complainant later told police that defendant had broken the door off its hinges to throw at her.

         ¶ 10. Around one in the morning on December 9, 2015, defendant was stopped for speeding. He told the officer that he was returning home after visiting his girlfriend. He was processed for driving while intoxicated. The officer testified that defendant did not complain of any injuries, though the officer noted that his left hand seemed swollen. Defendant, while testifying on his own behalf, explained that he had slipped and fallen the previous winter and as a result of his injuries, he had undergone surgery to place a plate in his hand, which frequently caused him discomfort. Defendant was arraigned later during the morning of December 9.

         ¶ 11. At the close of the State's case, defendant moved for judgment of acquittal, which was denied. Defendant then sought to admit evidence of complainant's FIPO conviction, arguing that it was admissible "under Rule 609 through standard impeachment." Defendant noted that complainant had effectively testified through the 911 call and other witnesses' testimony and that the State's "whole case is about what [complainant] said happened, and then there's circumstantial evidence that's offered to support it." Defendant further argued that the introduction of the 911 call was prejudicial to defendant because there was no way to test "the veracity of her purported statements" and "absent being able to ...


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