2014 VT 89


State v. Porter (2012-344)
 
2014 VT 89
 
[Filed 1-Aug-2014]
 
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 by email at: JUD.Reporter@state.vt.us or by mail at: 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.
 
 

2014 VT 89 

 

No. 2012-344

 

State of Vermont 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden Unit,


 


Criminal Division


 


 


Harold D. Porter, Jr.


May Term, 2014


 


 


 


 


James
  R. Crucitti, J.


 

Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
and Pamela Hall Johnson, 
  Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
 
William A. Nelson, Middlebury, for Defendant-Appellant.
 
Bradley S. Stetler of Stetler, Allen & Kampmann,
Burlington, Edward A. Brill and 
  Rebecca L. Berkebile of Proskauer Rose LLP, and Karen A.
Newirth, Barry C. Scheck, and 
  M. Christopher Fabricant, New York, New York, for Amicus
Curiae The Innocence Project, Inc.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and Robinson,
JJ.
 
 
¶ 1.          
CRAWFORD, J.   Defendant Harold D. Porter, Jr. appeals from his
conviction for attempted kidnapping.  He argues that the trial court erred in
(1) refusing to grant a motion for a new trial because the prosecution failed
to disclose important expert testimony; (2) admitting the testimony of police
officers that they had ruled out other suspects based on interviews with
out-of-court declarants; (3) admitting eyewitness identification testimony; (4)
failing to dismiss the case for failure to preserve and test potentially
exculpatory evidence; and (5) excluding the testimony of defendant’s expert on
police procedures.  We reverse and remand. 
¶ 2.          
The following facts were established at defendant’s March 2012 trial. 
On the evening of September 9, 2009, the complainant was walking home along
Colchester Avenue in Burlington when an unknown man attacked her and tried to
force her into the cab of a pickup truck that was parked alongside the road. 
He punched her repeatedly in the face and she fell to the ground.  He pinned
her to the ground with his knee.  She started screaming “rape.”  At one point
he shoved his finger into her mouth and she bit him.  He got up and she managed
to escape.  She ran to a nearby house and rang doorbells until someone let her
in.  The assailant drove off in the truck.  Police and an ambulance arrived
soon afterwards.   
¶ 3.          
Several people witnessed the event and offered descriptions of the
assailant and the truck to police.  One eyewitness chased after the truck as
the assailant left and saw that the license plate was the green color of a
Vermont plate, although he could not see the numbers because they were obscured
by the tailgate.  The complainant described the man as a middle-aged white male
with no beard or mustache who was about her height, 5’11,” but could not
otherwise identify him. 
¶ 4.          
While the assailant’s truck was parked on the side of the road, a
Chittenden County Transportation Authority (CCTA) bus passed by.  Two video
cameras attached to the bus captured images of the assailant’s truck at the
location identified by the complainant.  
¶ 5.          
In the course of their investigation, police showed the videos to the
manager of a local Chevrolet dealership.  He identified the truck as a
light-colored Chevrolet one-ton dual-rear-wheel pickup truck with four doors, a
flaring fender, a distinctive front bumper and headlights, and a contractor’s
rack on the back.  He believed that the car was gas-powered because he did not
see a diesel badge on the driver’s-side door.  He further believed that the
truck was likely to have four-wheel drive.  Based on these characteristics, he
told police that the truck’s vehicle identification number (VIN) would contain
the sequence “K33” in the fifth, sixth, and seventh position.  
¶ 6.          
Using the VIN parameters provided by the manager of the Chevrolet
dealership, the Vermont Department of Motor Vehicles produced a list of approximately
twenty gray or silver trucks registered in Vermont.[1] 
Police contacted the owners of each truck, and eventually ruled out every truck
except for defendant’s. 
¶ 7.          
Defendant was arrested and charged with attempted kidnapping, aggravated
assault, and unlawful restraint.  The latter two charges were eventually
dismissed by the State.  Defendant’s first trial in July 2011 ended in a
mistrial when the jury was unable to reach a verdict.  A second jury trial in
March 2012 resulted in a guilty verdict.  Defendant was sentenced to serve
thirty years to life.  This appeal followed. 
I. 
Testimony of Police Officers Ruling out Trucks Other Than Defendant’s
¶ 8.          
  One of the critical issues at trial was the identification of
defendant’s truck using video from the CCTA camera at the scene of the crime. 
Because the truck was relatively unique, police investigators working with the
Department of Motor Vehicles were able to identify approximately twenty
vehicles registered in Vermont which matched the make and color of the truck seen
on camera.   Ten vehicle owners testified at trial for the purpose of
eliminating their truck or trucks from identification.  The police interviewed five
other owners prior to trial.  These owners did not testify at trial.  Instead,
the investigating officers testified that based on the out-of-court interviews
with the owners, the officers were able to eliminate those remaining trucks
from the identification process.  
¶ 9.          
The first issue is whether defense counsel offered a sufficient objection
at trial to this testimony.  See State v. Decoteau, 2007 VT 94,
¶ 10, 182 Vt. 433, 940 A.2d 661 (“The party opposing introduction of
evidence must object at the time
the evidence is offered to preserve this issue for
appeal.”).  Prior to the testimony of Detective Carlson, who had contact with two
of the vehicle owners who did not testify, defense counsel objected in the
following terms: 
[M]y understanding is that this
[testimony about the remaining trucks] is just what was reported to him and
what was provided to him through photographs that he doesn’t have any individual
foundation to establish . . . [W]e move to exclude him on that
basis . . . . 
  . . . .
  The difference is all the other truck
owners are going to be here—my understanding is they’re going to be here to
testify on their own.  Detective Carlson is acting as a substitute for these
other two.  So this isn’t something that can be tied in later with independent
evidence, this is just [the detective] coming in and saying well, they said
they weren’t here and so they weren’t here.
The court ruled that the officers
could testify about what they had learned from the remaining vehicle owners,
but that the State could not elicit “hearsay statements as to what the person
told the police officer.”  When the same issue arose during the testimony of
three detectives, defense counsel renewed his objection on the ground of
“foundation based on hearsay” and “objection based on hearsay.”  Over these
objections, the court permitted the State to introduce testimony from the
detectives concerning their elimination of four trucks from involvement in the
crime.[2]

¶ 10.      
We are satisfied that the objections were sufficient to preserve the
issue of admissibility of the testimony under Vermont Rule of Evidence 602.  
The issues of hearsay and personal knowledge are closely linked in this case.  A
police officer’s repetition of a statement made by a vehicle owner would raise
issues under the hearsay rule.  Testimony that a truck was eliminated from
suspicion based on the owner’s out-of-court statement raises a slightly different
question under Rule 602.  In considering the preservation issue, courts have
generally considered a hearsay objection sufficient to alert the trial court to
the issue even when the precise objection arises under Rule 602.  United
States v. Davis, 596 F.3d 852, 856 n.2 (D.C. Cir. 2010); Elizarraras v.
Bank of El Paso, 631 F.2d 366, 374 (5th Cir. 1980); State v. Okumura,
894 P.2d 80, 95-96 (Haw. 1995), overruled on other grounds by State
v. Cabagbag, 277 P.3d 1027, 1040 (Haw. 2012); but see United States v.
Stout, 599 F.2d 866, 869 (8th Cir. 1979) (holding that police officer’s
testimony that eight people were in bank at time of robbery, which was based on
his interviews of other witnesses, was admissible over hearsay objection).  In
this case, the shorthand objection on hearsay grounds was supplemented by the
prior discussion at the bench of the issue.  Defense counsel plainly registered
an objection not only to the officers’ recitation of statements by the owners who
were not present, but also to testimony from the investigating officers
concerning their conclusions about which trucks they could exclude from further
suspicion.   
¶ 11.      
We turn now to the merits of the dispute over admissibility.  We begin
our analysis with Rule 602, which provides in relevant part that “[t]he
testimony of a witness may be excluded or stricken unless evidence is
introduced sufficient to support a finding that he has personal knowledge of
the matter.”
¶ 12.      
In this case, the witnesses knew only what the vehicle owners told
them.  These statements were not independently admissible as, for example,
admissions by a party opponent.  See In re Estate of Maggio, 2012 VT 99,
¶ 27, 193 Vt. 1, 71 A.3d 1130 (holding that evidence admissible as party-opponent
admissions under Rule 801(d)(2) need not satisfy personal knowledge requirement
of Rule 602).  Nor were the statements offered as the basis for an expert
opinion.  See V.R.E. 703 (providing that facts relied upon by expert witness need
not be admissible for expert’s opinion to be admitted, if facts are reasonably
relied upon by experts in the field).   Instead, this is a case in which the
substance of hearsay statements was introduced in the guise of conclusions
reached by the witnesses.  Permitting the witnesses to testify about their
conclusions violated the personal knowledge requirement of Rule 602.
¶ 13.      
The need to guard against the admission of the substance of out-of-court
statements has long been recognized by the courts and commentators.  The reason
for the exclusion is the same as for hearsay: the fact-finder has no basis for
judging the reliability of the information because the credibility of the declarant
cannot be challenged.  This case illustrates the problem very clearly.  A truck
owner who testifies that his truck was elsewhere on the date of the crime can
be cross-examined on issues of memory, mistake, actual knowledge, and other
factors that may reduce the reliability of his statement.  The same information
passed along to an investigator in a private conversation cannot be challenged
in any meaningful way because the declarant is absent.  
¶ 14.      
The authors of C. Wright et al., Federal Practice and Procedure (2d ed. 2012),
warned against the admission of out-of-court statements as the basis for
testimony by investigators and others who heard these statements:
  One of the most common grounds for a
Rule 602 objection is that the witness’ testimony is based on the observation
of others as reflected in their hearsay statements.  While a witness who gives
testimony containing hearsay may have perceived an out of court statement with
her senses, the testimony is offered to prove facts observed by the hearsay
declarant, not the witness.  Thus, the personal knowledge requirement is
satisfied only where the testimony of a witness who quotes an out of court
statement is offered for the limited purpose of proving that the out of court
statement was made or that the witness heard the statement made.  The
requirement might not be satisfied if the testimony is offered to prove the
facts asserted in the statement.
Id. § 6026, at 252-53.
 In this case, the out-of-court statements about the trucks were relevant only
for their truth.  Information about the location of the other trucks was
introduced only because, if true, it eliminated other suspects and focused
suspicion on defendant.  
¶ 15.      
Turning to the specific facts of this case, it is clear that the
investigating officers had no basis upon which to offer admissible testimony
that the information they received from the truck owners met the personal
knowledge requirement of Rule 602.   Such testimony would have to come from the
declarants themselves—which would have removed any need for repetition through
the officers.   In fact, that was the course the State followed with the
majority of the other truck owners who appeared live at trial.  In the absence
of evidence that the statements were based on personal knowledge, the
requirement of Rule 602 was not met and the testimony of the officers should
have been excluded. 
¶ 16.      
We consider finally whether the admission of the officers’ testimony was
prejudicial to defendant.  See State v. Mumley, 2009 VT 48, ¶ 20,
186 Vt. 52, 978 A.2d 6 (“When conducting a harmless-error analysis to determine
whether the jury would have convicted without the offending evidence, we
consider the extent to which the offending evidence was inculpatory, whether it
was cumulative or duplicative of other evidence, and how prominent it was at
trial.”); V.R.Cr.P. 52(a) (stating that “[a]ny error . . . which
does not affect substantial rights shall be disregarded”).  The identification
of defendant’s truck as the truck caught on video at the scene was one of the
principal pieces of evidence connecting defendant to the crime.  All trucks of
the correct make, model, and color registered in Vermont were identified.  The
State called ten witnesses who owned the same type of vehicle to demonstrate
that they could not have been involved in the crime.  The elimination of the
remaining trucks through the testimony of the officers closed the circle on that
issue—essentially identifying defendant as the last possible owner of that type
of vehicle in the entire state.  In closing, the State described its success in
narrowing the inquiry to defendant in the following terms: 
And on Monday, you saw the people coming
back and forth from all across the state of Vermont; truck owners, police
officers, all telling you about their trucks and why they were eliminated as
being involved in this attempted abduction.  Everyone was eliminated except one
truck; [defendant]’s truck.  
¶ 17.      
In arguing that there was no prejudice, the State points to other
evidence linking defendant to the truck shown on video at the crime scene.  While
several witnesses testified that defendant’s truck looked similar to the truck
shown on the CCTA video, this testimony was not cumulative with the officers’
testimony, because it did not rule out other similar trucks.  The admission of
impermissible evidence through three successive witnesses on a central issue in
the case is sufficient to demonstrate prejudice to defendant.  Under the
circumstances, we cannot say beyond a reasonable doubt that the jury would have
convicted defendant if the testimony had not been admitted.  See State v.
Brillon, 2010 VT 25, ¶ 21, 187 Vt. 444, 995 A.2d 557 (holding that it was
not harmless error to admit condition-of-release order where prosecution’s case
relied heavily on order). 
¶ 18.      
 Accordingly, we reverse the conviction on this ground.  Although our
ruling on the admission of the officers’ testimony is dispositive of this
appeal, we will address other issues raised by defendant because they have the
potential to reoccur at a subsequent trial.  We do not reach the issue of the
claimed discovery violation, however, because the evidentiary error is a
sufficient basis for reversal and on retrial there can no longer be any secret
about the testimony of the State’s expert witness.  
II. 
Identification Testimony of Eyewitness
¶ 19.      
At both trials, the State called an eyewitness who did not see the
assailant’s face and was unable to describe the assailant in detail shortly
after the incident but later told police, after seeing defendant’s picture
broadcast on television news, that defendant was the assailant.  Defendant
claims that the admission of this testimony violated his right to due process
under Article 10 of the Vermont Constitution because the court did not find
that it was reliable despite the suggestive circumstances.  Defendant also claims
that the testimony should have been excluded under Rule of Evidence 403. 
¶ 20.      
When faced with a claim that a defendant was denied due process by a
suggestive eyewitness-identification procedure, this Court applies the standard
set forth in Manson v. Brathwaite, 432 U.S. 98, 114 (1977).  See State
v. Kasper, 137 Vt. 184, 192, 404 A.2d 85, 90 (1979) (adopting Manson
test).  Under Manson and Kasper, a court first must examine
whether an identification arranged by law enforcement was unnecessarily
suggestive.  Id.  If it was, the identification may still be admissible
if certain indicia of reliability outweigh the “corrupting effect of the
suggestive identification.”  Id.  “ ‘These include the opportunity
of the witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of his prior description of the criminal, the
level of certainty demonstrated at the confrontation, and the time between the
crime and the confrontation.’”[3]
 Id. at 192-93 (quoting Manson, 432 U.S. at 114). 
¶ 21.      
However, the U.S. Supreme Court has made clear that the Due Process
Clause of the Fourteenth Amendment is not implicated where law enforcement did
not arrange the suggestive circumstances surrounding an identification.  See Perry
v. New Hampshire, 132 S. Ct. 716, 730 (2012) (holding that “the Due Process
Clause does not require a preliminary judicial inquiry into the reliability of
an eyewitness identification when the identification was not procured under
unnecessarily suggestive circumstances arranged by law enforcement”).  Under Perry,
defendant is precluded from bringing a due process challenge under the federal
constitution to the eyewitness identification in this case.  
¶ 22.      
Defendant asserts that this Court should reject the rationale of Perry
and hold that all suggestive eyewitness identifications, not just those
arranged by law enforcement, are subject to the equivalent due process
guarantee of the Vermont Constitution, Vt. Const. Ch. I, Art. 10.  Defendant
offers no substantive analysis or argument to support the creation of a
different standard under Article 10.  As it is inadequately briefed, we will
not address such an argument.   Trudell v. State, 2013 VT 18, ¶ 30,
193 Vt. 515, 71 A.3d 1235 (“[A] party’s failure to present any substantive
analysis or argument on state constitutional issues constitutes inadequate
briefing, which we decline to address.”). 
¶ 23.      
 Defendant further argues that the eyewitness identification should have
been excluded under Rule 403, which permits the trial court to exclude
otherwise relevant evidence “if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury.”    
¶ 24.      
Defendant objected to the eyewitness’s testimony on Rule 403 and due
process grounds during the first trial.  The trial court held a preliminary
hearing on the admissibility of the eyewitness’s testimony.  The eyewitness
testified that the assailant had a medium to stocky build and curly hair.  He
told police at the crime scene that he never saw the assailant’s face and could
not identify him in a photo lineup.  Later, after he saw defendant’s picture on
television, he felt “ninety-nine percent sure” that defendant was the
assailant.  The court ruled that the witness could not testify that defendant
was the assailant because the identification was made under “very, very
suggestive” circumstances.  However, it allowed the witness to testify that the
picture of defendant that he saw was similar to the assailant.    
¶ 25.      
At the second trial, defendant again objected to the eyewitness’s
testimony on due process and Rule 403 grounds.  The court reviewed the
testimony from the first trial.  The court ruled that it would be “unduly
prejudicial, despite the ability of cross-examination, to allow the testimony
as offered by the State.”  It therefore limited the eyewitness’s
testimony in the same manner as the first trial court. 
¶ 26.      
The trial court has broad discretion to balance the probative value of
evidence against its prejudicial effect, and we will reverse its decision only
if discretion was withheld or exercised on grounds clearly unreasonable or
untenable.  State v. Brochu, 2008 VT 21, ¶ 51, 183 Vt. 269, 949
A.2d 1035.  In this case, the trial court exercised discretion by reviewing the
eyewitness’s testimony from the first trial and weighing the probative value of
the identification against the danger of unfair prejudice.  The court
recognized that it would be unfair to allow the eyewitness to testify that
defendant was the same person that he saw at the crime scene, given the amount
of time that had passed and his statements to police at the scene that he did
not see the assailant’s face and could not identify him in photo lineup.  It
accordingly limited the State to asking whether the picture of defendant was
similar to the man he saw.  The court noted that defendant could challenge the
identification through cross-examination.  The court’s ruling was not clearly
unreasonable or untenable.  The identification had probative value, and its
prejudicial effect was lessened by the court’s ruling and the opportunity for
cross-examination.  On remand, defendant is free to offer expert testimony and
advocate for a different legal standard, but on the record below, the trial
court did not abuse its discretion by admitting the testimony.
III. 
Failure to Preserve and Test Evidence with Exculpatory Potential
¶ 27.      
Defendant argues that the case should have been dismissed because the
State failed to collect, preserve or test four items of potentially exculpatory
evidence: blood that was on the complainant’s face the night of the incident;
fingernail clippings and scrapings from the complainant from the night of the
incident; clothes worn by the complainant; and hairs that were found with the
complainant’s clothes.  Prior to the March 2012 trial, defendant filed a motion
to dismiss, arguing that the failure of police to collect and test the above
evidence violated Article 10 of the Vermont Constitution and the line of cases
beginning with State v. Bailey, 144 Vt. 86, 475 A.2d 1045 (1984).  The
trial court denied the motion to dismiss, but issued a corrective instruction
to the jury.[4]   

¶ 28.      
The State is obligated, as a matter of due process, to disclose to the
defense any exculpatory material within its possession or control.  See Brady
v. Maryland, 373 U.S. 83, 86-88 (1963); V.R.Cr.P. 16(b)(2).  The State may
violate this burden of production if it destroys, loses or fails to preserve
potentially exculpatory evidence.  State v. Gibney, 2003 VT 26, ¶ 35,
175 Vt. 180, 825 A.2d 32; State v. Delisle, 162 Vt. 293, 309, 648 A.2d
632, 642 (1994).  To be entitled to sanctions under the Vermont Constitution
and our decision in Bailey, the defendant need not prove that the missing
evidence would be exculpatory, “but must show only a ‘reasonable possibility’
that it would have been favorable.”[5] 
Bailey, 144 Vt. at 94, 475 A.2d at 1050.  If the defendant makes such a
showing, the court must determine whether sanctions are warranted based on
“ ‘a pragmatic balancing’ of three factors: (1) the degree of negligence
or bad faith on the part of the government; (2) the importance of the evidence
lost; and (3) other evidence of guilt adduced at trial.”  Id. at 95; 475
A.2d at 1050.      
¶ 29.      
Defendant argues that the failure to collect evidence in the first place
is equivalent to destroying, losing, or failing to preserve exculpatory
evidence.  We disagree.  The police do not have a duty to collect all evidence
that could potentially favor the defense.  See State v. Smith, 145 Vt.
121, 127, 485 A.2d 124, 128 (1984) (“The State’s duty to preserve evidence obviously
arises only if the State has possession of it.”); Bailey, 144 Vt. at
94-95, 475 A.2d at 1050 (noting that State’s “duty of disclosure attaches in
some form once the [g]overnment has first gathered and taken possession of the
evidence in question” (quotation omitted)); see also State v. Ware, 881
P.2d 679, 683 (N.M. 1994) (stating rule that prosecution “generally has no duty
to collect particular evidence at the crime scene”).  However, as we have
previously recognized, “[t]here could arise situations in which negligent
conduct of the police is sufficiently prejudicial to the defense to warrant”
sanctions.  State v. Wheelock, 158 Vt. 302, 312, 609 A.2d 972, 978
(1992).  In such situations, the Bailey test is an adequately flexible
method to determine the appropriate sanction.  We see no reason to adopt a new
test for a failure to collect evidence, as the State urges.  
¶ 30.      
In this case, the trial court appropriately applied the Bailey
test and determined that the failure to preserve the evidence did not violate
Article 10.  We need not review the trial court’s conclusion here, as the Bailey
test depends on the evidence of guilt produced at trial, which will likely be
different in the event that a third trial occurs.  Should defendant renew his
motion, the court will be obligated to reweigh the various factors in light of
the evidence presented.    
IV.  Exclusion of Defendant’s Expert on Negligence of
Police Procedures 
 
¶ 31.      
Prior to the first trial, defendant disclosed that he intended to call
an expert witness on police evidence-gathering methods to explain to the jury
the significance of the failure by police to collect the physical evidence. 
The court ruled that the proffered testimony was not relevant and excluded the
witness.  The judge who presided at the second trial adopted the first judge’s
decisions on all prior motions and objections at a pretrial hearing.  Defendant
renewed all of his previous motions and objections at the second trial.  
¶ 32.      
Evidence is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”  V.R.E. 401. 
The court instructed the jury that it could draw an inference in favor of the
defendant if the jury did not find the State’s explanation for why the evidence
was not collected and tested to be adequate.  The proffered testimony would
challenge that explanation.  It was therefore relevant, and the trial court
erred in excluding the testimony on that basis.  We make no ruling, however, on
whether the testimony was otherwise admissible under the rules of evidence.  
Reversed and
remanded for further proceedings consistent with this decision.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 


[1] 
The testimony at trial was somewhat unclear as to how many trucks and their
owners were investigated by police.  The exhibits produced by the State show
that the police and DMV generated two lists, totaling 32 trucks.  Nine trucks
were included on both lists, and the lists included three duplicates, so there
were actually 20 unique trucks.  One of the trucks was owned by defendant.  Ten
other truck owners—Short, Boyce, Stocker, Bibeau, Lantagne, Sogoloff, Valcour,
Ryan, Geno, and Blais—testified at trial.   Blais and Valcour each owned
two trucks on the list.  Police testified that they interviewed owners
Sullivan, Vikse, Fox Run Limited, Gray, and Tamiso and eliminated them as
suspects.  The name Sullivan does not appear on the list, and two trucks on the
list are unaccounted for: those owned by Lands End Farm and Arnold.  Assuming
that Sullivan is the owner of one of these two trucks, that leaves one truck
unaccounted for.  This issue was not raised by either the State or defendant on
appeal, and for our purposes here we assume that police ruled out all of the
owners except for defendant.


[2]
 In its brief, the State points out that the first objection to the testimony
of Detective Carlson was withdrawn.  That objection, however, went to a
question of more limited scope, which was whether the truck owner confirmed
that a photograph showed his truck.   When the question of whether the
detective could eliminate the truck from suspicion was asked, defense counsel
stated a hearsay objection.  


[3] 
Amicus curiae urges this Court to modify or abandon the Manson/Kasper
test because some of the factors it relies upon have been shown to be poor
measures of reliability while other, better indicators of reliability are not
included in the test.  We acknowledge that modern scientific evidence has
raised doubts about some of the traditional indicia of reliability listed in Manson
and Kasper.  However, we decline to revisit those factors in the absence
of an evidentiary record developed in the trial court.  
 
We note—although it is not relevant to this case—that
the Legislature has recently enacted a law requiring every Vermont law
enforcement agency to adopt an eyewitness-identification policy that contains
certain minimum standards for conducting show-up and lineup identifications. 
2014, No. 193 (Adj. Sess.), § 1 (to be codified at 13 V.S.A. § 5581).


[4]
 The court instructed the jury as follows:  
 
If you find that
the police failed to collect and then test important evidence which might have
identified the assailant as someone other than [defendant], and you are not
satisfied with the state’s explanation for the failure to collect and test the
evidence, then you may draw an inference that the potential evidence would have
been favorable to [defendant].  
 


[5]
 In Arizona v. Youngblood, the U.S. Supreme Court held that where the
exculpatory value of the evidence is unknown, there is no violation of the
Fourteenth Amendment’s Due Process Clause for failure to preserve potentially
useful evidence “unless a criminal defendant can show bad faith on the part of
the police.”  488 U.S. 51, 58 (1988).  This Court has adopted a different
standard under Chapter I, Article 10 of the Vermont Constitution, “which
guarantees that a defendant can call for evidence in his favor.”  Gibney,
2003 VT 26, ¶ 37 (quotation omitted).  In State v. Delisle, we
determined that Youngblood was “both too broad and too narrow,” and
readopted as our state constitutional standard the test set forth in Bailey.
162 Vt. at 310-11, 648 A.2d at 643.


