Superior Court, Bennington Unit, Criminal Division DOCKET NO.
991-10-18 Bncr Trial Judge: David A. Barra
above-entitled cause, the Clerk will enter:
1. Defendant was charged with first-degree aggravated
domestic assault, first-degree aggravated domestic assault
with a previous domestic-assault conviction, interference
with access to emergency services, and violation of
conditions of release in violation of 13 V.S.A. §§
1043(a)(1), (3), 1031, and 7559(e). Because he has been
convicted of three felonies in the past, the State included a
habitual-offender enhancement in the
aggravated-domestic-assault charge under 13 V.S.A. §
1043(a)(1), so defendant potentially faces life imprisonment
in connection with these charges. See 13 V.S.A. § 11. At
his arraignment on October 3, 2018, the court ordered him
held without bail pending a weight-of-the-evidence hearing.
After that hearing on October 9, the court ordered him held
without bail pursuant to 13 V.S.A. § 7553. Defendant
appeals, arguing that the State failed to meet its burden
under § 7553 to present "great" evidence of
guilt. In particular, defendant argues that the trial court
improperly relied on inadmissible hearsay evidence in
assessing the weight of the evidence. We agree and
accordingly reverse and remand.
2. At the weight-of-the-evidence hearing, the State relied on
a sworn affidavit by Vermont State Trooper Justin Walker, a
completed Domestic Assault Investigation Report form that
included sworn responses by the trooper, and a brief
victim-interview statement signed and sworn by complainant.
3. The trooper's affidavit reflected the following: On
the evening of October 2, Trooper Walker responded to a
report of an assault in Pownal. He reported that when he
found complainant, her eyes were bloodshot, watery, and
puffy, apparently from crying, and her hair was disheveled.
Trooper Walker reported that complainant told him she and
defendant had gotten into an argument, after which he grabbed
her by the hair and threw her against the wall, then grabbed
her by the throat and slammed her against the wall again.
Trooper Walker noticed a small red mark at the base of her
neck. Complainant allowed him to inspect her head for bumps
or swelling, but he found none. The affidavit avers that
complainant's statements were recorded, and she swore to
their accuracy. However, the State did not offer for
admission the actual recorded statements. Trooper
Walker's sworn portion of the Domestic Assault
Investigation Report affidavit reflects his observation that
complainant was fearful and crying.
4. The written victim-interview statement did not describe
the incident. The blank space calling for a description of
the assault was cross-hatched, other than a note that read:
"Recorded statement - sworn." Otherwise,
complainant's responses on the form reflected that
complainant and defendant had been in a four-year sexual
relationship; that defendant had made degrading comments to
complainant; that complainant and defendant had been drinking
alcohol that night; and that there had been four or five
previous incidents in which defendant had harmed complainant,
one or two of which complainant had reported to police.
Complainant swore to these statements and signed the
5. For the reasons set forth below, we conclude that the
court erred in considering complainant's out-of-court
statements to the trooper as reflected in the trooper's
sworn affidavit. Without that evidence on this record the
State cannot meet its burden to establish that the weight of
the evidence is great.
6. Under the Vermont Constitution, "[a] person accused
of an offense punishable by . . . life imprisonment may be
held without bail when the evidence of guilt is great."
Vt. Const. ch. II, § 40(1). This provision is
implemented by 13 V.S.A. § 7553, which provides that
"[a] person charged with an offense punishable by life
imprisonment when the evidence of guilt is great may be held
without bail." To determine whether the evidence of
guilt is great, we use the standard of Vermont Rule of
Criminal Procedure 12(d), requiring evidence sufficient to
make out a prima facie case against the defendant. State
v. Duff, 151 Vt. 433, 440, 563 A.2d 258, 263 (1989).
This requires the State to show "(1) that substantial,
admissible evidence of guilt exists, and (2) the evidence can
fairly and reasonably convince a fact-finder beyond a
reasonable doubt that defendant is guilty." Id.
Such "substantial, admissible" evidence may be
presented in the form of affidavits. See V.R.Cr.P. 12(d)(2)
(in a motion to dismiss under Rule 12(d), the prosecution
must "establish by affidavits, depositions, sworn oral
testimony, or other admissible evidence that it has
substantial, admissible evidence as to the elements of the
offense"); State v. Hugerth, 2018 VT 89, ¶
7, ___Vt. ___, ___A.3d ___(mem.). This rule simply allows for
admissible evidence to be presented by affidavit; it does not
make all evidence presented by affidavit admissible.
7. The State makes two arguments for why complainant's
out-of-court statements to Trooper Walker, presented via his
affidavit, are admissible. First, the State argues that these
statements were excited utterances, which are not excluded as
hearsay under Vermont Rule of Evidence 803(2). Second, the
State argues that because this Court has held that recorded
sworn testimony is admissible at the Rule 12(d) stage,
Trooper Walker's description of complainant's
statements in his affidavit are admissible because
complainant swore to the truth of her statements to Trooper
Walker, and Trooper Walker swore to the truth of his
affidavit. Both arguments are unavailing.
8. The State failed to establish at the
weight-of-the-evidence hearing that complainant's
statements to Trooper Walker were admissible as excited
utterances. As the proponent of this evidence, which is
barred by the rule against hearsay unless a valid exception
applies, the State bore the burden of establishing its
admissibility. See State v. Oscarson, 2004 VT 4,
¶ 20, 176 Vt. 176, 845 A.2d 337. To be admitted as an
excited utterance, a hearsay statement must "relat[e] to
a startling event or condition [and be] made while the
declarant was under the stress of excitement caused by the
event or condition." V.R.E. 803(2). At the
weight-of-the-evidence hearing, the State argued that the
statements should be admitted as excited utterances because
the trooper's affidavit reflects that complainant was
crying and fearful when she spoke with him. But not every sad
or fearful statement is an excited utterance. To establish
admissibility under Rule 803(2), the State had to establish
that complainant's statements were made while she was
still "under the stress of excitement" of a
startling event or condition, which it did not do. Because
the State bears the burden on this point, the sparse evidence
concerning the circumstances surrounding complainant's
statement operates against the State.
9. The State's argument that complainant's statements
as represented in Trooper Walker's affidavit are
admissible as sworn testimony also fails. The State may meet
its burden under § 7553 by introducing a recording of a
witness's sworn oral testimony. See State v.
Bullock, 2017 VT 7, ¶ 11, 204 Vt. 623, 165 A.3d
143. For example, in Bullock, the State introduced
an oral recording of the victim's sworn statement to
law-enforcement officers in which she alleged facts that, if
true, would satisfy the elements of the crimes charged
against the defendant. Id. ¶ 10. We held this
"sworn oral statement demonstrates that the State has
admissible evidence of defendant's guilt that it can use
at trial, namely the content of the statement that will be
provided by a live witness at trial." Id.
¶ 11. Here, the State simply alleges that a sworn
recording of complainant's statements to Trooper Walker
exists, and represents that Trooper Walker's affidavit
conveys her sworn statements. But Trooper Walker's
affidavit reflects only his recollection of complainant's
statements. Unlike an oral recording of the sworn testimony
of a witness whom the State could put on the stand at trial,
Trooper Walker's recollection of complainant's
statements does not "demonstrate that the State has
admissible evidence of defendant's guilt that it can use
at trial." Id. ¶ 10.
10. Because the trial court could not properly rely on
complainant's inadmissible out-of-court statements
offered through the trooper's sworn affidavit, the
admissible evidence supporting the charges is not
"great," as the Vermont Constitution and §
7553 require. The admissible evidence, as embodied in Trooper
Walker's affidavit and the victim-interview form signed
by complainant, is essentially this: that complainant and
defendant were in a sexual relationship, that there had been
four or five previous incidents in which defendant had harmed
complainant, that the trooper observed a red mark on
complainant's neck, and that she was crying and fearful.
Even taken in the light most favorable to the State, this is
not enough to "fairly and reasonably convince a
fact-finder beyond a reasonable doubt that defendant is
guilty" of the crimes for which he is charged.
Duff 151 Vt. at 440, 563 A.2d at 263.
Marilyn S. Skoglund, Associate Justice, Beth Robinson,
Associate Justice, ...