State v. Haner (2005-272)

2007 VT 49

[Filed 01-Jun-2007]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2007 VT 49

                                No. 2005-272


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 2, Bennington Circuit

  Harold Haner, Sr.                              January Term, 2007


  Nancy Corsones, J.

  William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
    General, Montpelier, for Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Davenport, Supr. J.,  Specially Assigned

       ¶  1.  JOHNSON, J.  Defendant Harold Haner, Sr. appeals the district
  court's denial of his motion for a new trial.  He claims that the district
  court erred by: (1) refusing to grant use immunity to his brother who had
  previously made exculpatory statements, and  (2) ruling that several
  proffered documents containing confessions by his brother were inadmissible
  hearsay.  We affirm.
   
       ¶  2.  In October 2000, defendant was convicted of aggravated sexual
  assault on his daughter, A.H.  We affirmed the conviction in November 2001. 
  In late February 2002, defendant's brother, who was seventeen at the time,
  went with their mother to the state police and confessed to the crime for
  which defendant had been convicted-sexually assaulting A.H. in March 1999. 
  Defendant's brother then proceeded to write twenty-three letters to various
  parties, including defendant, expressing his guilt. 

       ¶  3.  In June 2002, defendant filed a motion for a new trial based on
  newly discovered evidence, attaching a sworn affidavit by his brother that
  included a confession to the sexual assault.  An evidentiary hearing on the
  motion was held on July 30, 2003.  At the hearing, defendant's brother
  testified that he had come to court to confess to a crime that he had
  committed.  He further testified that he had waited so long to come forward
  because he did not believe his brother could be convicted of a crime he did
  not commit, and that he had only written a note to their mother confessing
  to the sexual assault when he feared defendant would go to jail.  When
  defendant's brother was asked to provide details about the sexual assault,
  the court cautioned him against self-incrimination and asked if he wished
  to speak to an attorney before proceeding.  He replied in the affirmative. 
  An attorney was provided to him, and from that point forward he refused to
  answer questions, invoking his Fifth Amendment right against
  self-incrimination. 
   
       ¶  4.  Defendant subsequently filed a motion requesting that the
  court "use its inherent power to grant use immunity to [his brother] and
  thus require[] him to testify in the pending motion for a new trial."  The
  court denied the motion in September 2003.  The hearing on the motion for a
  new trial reconvened in March 2005.  Defendant's brother again testified
  that he had previously confessed to sexually assaulting A.H., however, he
  invoked the Fifth Amendment when asked whether he had actually committed
  the offense.  In support of his motion for a new trial, defendant proffered
  several sources containing confessions by his brother: statements to the
  state police; letters written to defendant, A.H., and others; an affidavit;
  and deposition and hearing testimony predating his invocation of the
  privilege against self-incrimination.  At the court's request, the parties
  filed memoranda addressing admissibility of the proffered evidence under
  the statement-against-penal-interest exception to the hearsay rule.  V.R.E.
  804(b)(3).  The court deemed the confessions  hearsay, and consequently
  denied defendant's motion for a new trial.  This appeal followed.

       ¶  5.  Defendant's underlying claim on appeal is that the trial court
  erred in denying his motion for a new trial pursuant to Vermont Rule of
  Criminal Procedure 33.  He bases this claim of error on two specific
  actions of the court: (1) its refusal to grant use immunity to his brother,
  and (2) its exclusion of his brother's confessions as inadmissible hearsay. 
  For a new trial to be granted under Rule 33, the evidence must be such that
  it "would probably change the result upon retrial."  State v. Palmer, 169
  Vt. 639, 640, 740 A.2d 356, 359 (1999) (mem.) (quotation omitted).  The
  ultimate decision to grant or deny a Rule 33 motion based on newly
  discovered evidence is left to the sound discretion of the trial court, and
  we will reverse only if the court abused that discretion.  Irving v. Agency
  of Transp., 172 Vt. 527, 528, 768 A.2d 1286, 1289 (2001) (mem.).

                                     I.

       ¶  6.  Defendant first claims that the court erred when it failed "to
  exercise its inherent power to compel [his brother's] testimony through the
  grant of use immunity."  He argues that our case law supports the judicial
  authority to grant defense witnesses immunity under  circumstances similar
  to his case.  To the extent that Vermont law does not explicitly support
  his argument for judicial use immunity, he nonetheless claims that defense
  witness immunity was warranted here to protect his constitutional right, as
  a criminal defendant, to compel witness testimony in his favor.  He urges
  us to adopt the Third Circuit's holding in Government of the Virgin Islands
  v. Smith that courts have "inherent authority to effectuate the defendant's
  compulsory process right by conferring a judicially fashioned immunity"
  upon  witnesses whose testimony is exculpatory and essential to an
  effective defense.  615 F.2d 964, 969 (3d Cir. 1980) (quoting United States
  v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913
  (1979)).
   
       ¶  7.  In Vermont, the power to grant witness immunity lies
  exclusively within the discretion of the prosecutor, and the State is under
  no constitutional obligation to confer such immunity.  State v. Roberts,
  154 Vt. 59, 67, 574 A.2d 1248, 1251 (1990); 12 V.S.A. § 1664 (establishing
  that court may issue order granting immunity to witness despite invocation
  of Fifth Amendment privilege upon request by Attorney General or state's
  attorney).  While we have recognized exceptions to this statutory rule,
  they are few and limited in scope so as not to disrupt the separation of
  powers inherent in the Legislature's exclusive grant of authority to the
  Attorney General and state's attorneys.  12 V.S.A. § 1664; see also R.
  Schoenhaus, Annotation, Right of Defendant in Criminal Proceeding to Have
  Immunity from Prosecution Granted to Defense Witness, 4 A.L.R. 4th 617, § 2
  (1981) (discussing courts' reluctance to allow defendants to compel
  prosecutors to exercise their legislatively granted authority to afford
  witnesses use immunity).
   
       ¶  8.  Defendant claims that his case is sufficiently analogous to
  two cases in which we recognized an exception to the State's discretion
  under 12 V.S.A. § 1664 to necessitate court-ordered immunity for his
  brother.  In State v. Begins, we were concerned by the State's practice of
  scheduling probation revocation hearings prior to the criminal trial on the
  underlying offense because of its potential to coerce self-incrimination by
  probationers.  147 Vt. 295, 297-98, 514 A.2d 719, 721-22 (1986).  We held
  that when a prosecutor insists on placing a probationer in the untenable
  position of choosing between her right to due process at the revocation
  hearing and her right to remain silent at criminal trial, the probationer's
  testimony may not be used against her at trial.  Id. at 298-99, 514 A.2d at
  722-23.  In State v. Cate, we extended this "exclusionary rule" to a
  situation in which a sex offender who had testified at trial was required
  by his probation conditions to admit criminal responsibility at a treatment
  program, exposing him to potential perjury charges.  165 Vt. 404, 415, 683
  A.2d 1010, 1018 (1996).  Again, we mandated that probationers be offered
  use immunity before being forced to incriminate themselves.  Id.  Thus, in
  the limited circumstances where we have recognized an exception to
  prosecutors' exclusive authority to grant use immunity, the defendant has
  been faced with the difficult choice of testifying and risking
  self-incrimination or remaining silent and forfeiting other important
  rights.  See Cate, 165 Vt. at 414, 683 A.2d at 1018 (described above);
  State v. Loveland, 165 Vt. 418, 427, 684 A.2d 272, 278 (1996) (statements
  made by sex offenders at sentencing are inadmissible against them at
  subsequent criminal proceedings to encourage them to accept treatment
  rather than emerge from prison untreated); State v. Drake, 150 Vt. 235,
  237, 552 A.2d 780, 781 (1988) (evidence of crimes for which defendant has
  not been charged cannot be considered at sentencing unless defendant is
  offered use immunity); Begins, 147 Vt. at 297-98, 514 A.2d at 721-22
  (described above).  We have not extended this rule, however, to defense
  witnesses who invoke the privilege against self-incrimination, and we have
  likewise been cautious to limit its applicability, even to defendants, to
  situations where public policy demands the availability of immunity.  See,
  e.g., State v. Gorbea, 169 Vt. 57, 61-62, 726 A.2d 68, 71 (1999) (declining
  to expand exclusionary rule where facts did not fit "the limited exceptions
  carved out in Loveland and Cate").  Particularly here, where defendant
  advocates judicial use immunity not to protect his own privilege against
  self-incrimination, but to compel testimony by his brother that was deemed
  unreliable by the trial court, the limited exceptions articulated in
  earlier cases do not support his position.
   
       ¶  9.  Nevertheless, defendant argues that the circumstances of his
  case implicate important public policy considerations and thus warrant an
  expansion of the exclusionary rule.  Without judicial use immunity, he
  claims, he cannot compel witnesses in his favor and the "fair
  administration of justice" will be thwarted.  Defendant relies solely on
  the Third Circuit's holding in Smith, and urges us to adopt it.  615 F.2d
  at 969.  Smith held that courts have an inherent power to grant witness
  immunity to vindicate a defendant's constitutional right to present
  exculpatory evidence crucial to his case.  Id.  Recognizing the potential
  for judicial use immunity to seriously encroach upon the realm of the
  executive branch, however, the court emphasized the need for "special
  safeguards" in determining whether to grant such immunity.  Id. at 971-72. 
  As such, barring prosecutorial misconduct, it limited the judicial power to
  grant defense witness immunity to situations where "the proffered testimony
  [is] clearly exculpatory; the testimony [is] essential; and there [are] no
  strong governmental interests which countervail against a grant of
  immunity." (FN1) Id. at 972, 974.
   
       ¶  10.  The Smith approach, insofar as it does not rely on
  prosecutorial misconduct,  has been uniformly rejected by other federal
  circuit courts, as well as numerous state courts, that have addressed
  judicial use immunity.  See, e.g., United States v. Mackey, 117 F.3d 24, 28
  (1st Cir. 1997) (rejecting Smith and holding that courts generally cannot
  compel witness immunity where prosecutor has refused to do so); United
  States v. Herrera-Medina,  853 F.2d 564, 568 (7th Cir. 1988) (same); United
  States v. Turkish, 623 F.2d 769, 778-79 (2d Cir. 1980), cert. denied, 449
  U.S. 1077 (1981) (same); see also Schoenhaus, supra, ¶ 7.  But, we need
  not reach the question of whether the Smith approach to judicial immunity
  is a sound one because defendant fails to meet the minimum requirements of
  that decision.  Contrary to defendant's assertion that the mere proffer of
  his brother's facially exculpatory testimony triggered the court's inherent
  power to grant defense witness immunity, Smith requires that the defendant
  "make a convincing showing . . . that the testimony which will be
  forthcoming is both clearly exculpatory and essential to [his] case" before
  the court may compel immunity.  615 F.2d at 972.  Thus, the court may
  evaluate the credibility of the proffered evidence, and is not required to
  simply take it at face value.  See United States v. Sampson, 661 F. Supp.
  514, 519-20 (3d Cir. 1987) (explaining that application of the "clearly
  exculpatory" requirement in Smith should include consideration of "the
  trustworthiness of the evidence that the defendant offers"). 

       ¶  11.  Like the trial court, we are unpersuaded by defendant's
  assertion that his brother's statements regarding the sexual assault of
  A.H. were clearly exculpatory.  Defendant's daughter alleged that the crime
  took place in defendant's trailer while his wife and other children were
  asleep in other rooms.  Nonetheless, throughout the pretrial investigations
  and trial, not a single mention was made of the brother's potential
  presence in the trailer at the time of the offense.  Defendant's son
  testified that he could not recall defendant's brother ever sleeping in his
  room; however, defendant's brother claimed that he slept there on the night
  of the assault.  While A.H. testified that she heard her assailant leave
  her room through a doorway to the hall and shortly thereafter saw defendant
  walk into the room, defendant's brother claimed that he hid at the foot of
  her bed as defendant entered the room.  Each of these inconsistencies cuts
  against the trustworthiness of the proffered evidence, and the trial court
  was justified in considering them.
   
       ¶  12.  In addition to these inconsistencies, the circumstances
  surrounding the confession diminish its credibility.  Defendant's brother
  waited until approximately three years after defendant was first accused to
  come forward with his confession.  By that time, defendant's appeal had
  been taken and denied, presenting the opportunity for his brother to tailor
  his confession to the facts and theories already on the record.  See State
  v. Haner, No. 2000-577, (Vt. Nov. 21, 2001) (unreported mem.). 
  Furthermore, defendant's brother acknowledged to the police that he was
  aware that, as a juvenile, he would be subject to a lesser punishment than
  defendant.  When asked by the police why he waited so long to confess,
  defendant's brother answered that his sister-in-law "was trying to, um, she
  was the one that was trying to find out what to say, not what to say but
  um, where to go to report it."  Both the officer who took the statement and
  the judge who heard the testimony at trial reasonably questioned the
  credibility of the statement.

       ¶  13.  Finally, the familial relationship between defendant and his
  brother calls into question the veracity of any exculpatory statements by
  defendant's brother.  See Sampson, 661 F.Supp. at 521 (suggesting that a
  close relationship between witness and defendant undermines the credibility
  of the proffered testimony in the Smith "clearly exculpatory" analysis). 
  Particularly given the testimony of a sheriff's deputy and intern at the
  state's attorney office, the court had reason to find the confession
  suspect.  The deputy testified that during a July 2003 hearing, she sat
  behind defendant's brother and two women who appeared to be his aunts.  She
  overheard defendant's brother tell the women: "We'll be all right as long
  as he doesn't do it again when he gets out."  In light of the increased
  motive of close relatives to fabricate exculpatory evidence, the
  inconsistencies between the confession and witnesses' testimony, and the
  general circumstances surrounding the confession, we agree with the trial
  court that defendant failed to make a "convincing showing" that the
  proffered testimony was "clearly exculpatory."  Because defendant failed to
  meet the first element of the test for judicial use immunity that he
  advances, the trial court did not err as a matter of law when it declined
  to grant immunity to defendant's brother.      

                                     II.
   
       ¶  14.  Defendant next asserts that the trial court erred by refusing
  to admit his brother's exculpatory statements into evidence as statements
  against penal interest.  V.R.E. 804(b)(3).  The trial court is afforded
  broad discretion in determining the admissibility of hearsay under Rule
  804, and we will not upset its decision "unless there has been an abuse of
  discretion resulting in prejudice."  State v. Fisher, 167 Vt. 36, 39, 702
  A.2d 41, 43 (1997).  Here, as noted in our discussion above, defendant
  failed to make a sufficient showing of the exculpatory statements'
  reliability, and therefore the court deemed the confessions by his brother
  inadmissible hearsay. 

       ¶  15.  Under Rule 804(b)(3), statements that are otherwise hearsay
  are nonetheless admissible if they are contrary to the declarant's penal
  interest when made.  Where a statement tends to inculpate the declarant,
  and thereby exculpate the defendant, it is inadmissible "unless
  corroborating circumstances clearly indicate the trustworthiness of the
  statement."  V.R.E. 804(b)(3).  In evaluating the trustworthiness of the
  exculpatory statements made by defendant's brother in this case, the court
  relied on State v. Corliss, where we stated that to satisfy the condition
  imposed by Rule 804(b)(3), the defendant must "establish that the
  [declarant] had both motive and opportunity to commit the crime" 168 Vt.
  333, 336, 721 A.2d 438, 441 (1998).  

       ¶  16.  In its analysis, the trial court found that although defendant
  established that his brother "had sufficient motive to corroborate his
  confession," he could not similarly show an opportunity to commit the
  crime.   Despite defendant's contention that he met the corroboration
  component of Rule 804(b)(3) through his own testimony and that of his
  mother and son, to the effect that defendant's brother sometimes slept over
  at the trailer, the court exercised its discretion appropriately.  The
  court took into consideration conflicting testimony regarding when
  defendant's brother may have been at the trailer and where he might have
  slept while there, if he slept there at all.  Even if defendant met his
  burden of showing  that his brother had the opportunity to commit the
  sexual assault, however, the court was not required to disregard the
  plethora of evidence undermining the trustworthiness of his brother's
  statements.
   
       ¶  17.   The trial court also properly considered the source of the
  confession, defendant's brother, in determining its trustworthiness.  See
  United States v. Bobo, 994 F.2d 524, 528 (8th Cir. 1993) (asserting that
  "certain close relationships, such as the sibling relationship, have long
  been recognized to diminish the trustworthiness of hearsay statements
  against the declarant's penal interest").  Further weighing against the
  reliability of the confession were the circumstances under which it was
  made, its inconsistency with other evidence in the record, as well as the
  suspicious statements made by defendant's brother to the police, supra, ¶
  12, and to his two aunts, supra, ¶ 13.  Defendant attempts to
  counterbalance this evidence of the confession's noncredibility by arguing
  that "repetition of hearsay equals corroboration" and that his brother's
  twenty-three letters expressing his guilt therefore provide adequate
  corroboration for his statements.  Defendant, however, misinterprets our
  decision in State v. Gallagher, in which we upheld a trial court's decision
  to admit hearsay statements made by a child-victim of sexual assault to a
  teacher and social worker.  150 Vt. 341, 347-48, 554 A.2d 221, 225 (1988). 
  In Gallagher, the trustworthiness of the statements was buttressed by "the
  internal consistency and detail of the child's story, and the child's
  affect, intelligence, memory and concern for the truth."  Id. at 348, 554
  A.2d at 225.  In that case, there were no indications of untrustworthiness
  similar to those here.  Furthermore, there were different considerations
  due to the policy underlying V.R.E. 804a-that "child-victims' early
  communications are often highly trustworthy."  Reporter's Notes, V.R.E.
  804a.  Given the lack of corroborating circumstancing clearly indicating
  the reliability of the statements made by defendant's brother, and more
  importantly, the abundance of evidence indicating just the opposite, we
  conclude that the trial court properly exercised its broad discretion in
  treating the confessions as inadmissible hearsay. 

                                    III.
   
       ¶  18.  We conclude that the trial court did not violate defendant's
  due process rights by denying his motion for a new trial.  Defendant's
  contention that the court "completely shutdown [his] ability to present
  clearly exculpatory evidence for prosecuting his [m]otion for [n]ew [t]rial
  based upon newly discovered evidence" is without merit.  To the contrary,
  the trial court made the appropriate legal determination that judicial use
  immunity was unwarranted both under existing Vermont law and the law
  advocated by defendant, and properly exercised its discretion in excluding
  the hearsay statements by defendant's brother.  As the confession
  underpinning defendant's motion for a new trial was correctly deemed
  inadmissible due to its unreliability, the court properly dismissed the
  motion.  See Irving, 172 Vt. at 528, 768 A.2d at 1289 (holding that we will
  reverse a trial court decision on a motion for new trial only for abuse of
  discretion).  Defendant could not succeed on the motion for a new trial, as
  the newly discovered evidence (which properly excluded the substance of the
  confession) was unlikely to change the result on retrial, and therefore the
  trial court did not abuse its discretion in denying the motion.  See
  Palmer, 169 Vt. at 640, 740 A.2d at 359 (stating that motion for new trial
  is granted only if circumstances meet a stringent test, including whether
  the evidence is likely to change the result on retrial). 

       Affirmed.

                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice




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                                  Footnotes


FN1.  Two additional requirements for judicial use immunity were articulated
  by the Smith court.  Neither of these requirements-that immunity be
  properly sought in the district court and that the defense witness be
  available to testify-is at issue here.  Id. at 972.


