Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-023

                                      DECEMBER TERM, 2013

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Orleans Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Jason DeGreenia                                       }    DOCKET NO. 444-7-11 Oscr

                                                            Trial Judge: Dennis R. Pearson

                          In the above-entitled cause, the Clerk will enter:

       Defendant appeals from his burglary and grand larceny convictions following a jury trial.
He argues that the court erred in denying his motion to dismiss and his motion for a new trial.
We affirm.

        In ruling on defendant’s motions, the trial court recounted the following facts. In the
early morning hours of July 20, 2011, the owners of a sand and gravel pit discovered that
someone had entered onto their property, removed numerous items from a storage trailer, and
damaged a large, expensive gravel screening machine by cutting off insulated copper wiring.
Police identified David Burns and Dean Perron as suspects. These men quickly confessed and
implicated defendant as the third person involved. Police located many of the stolen items in a
pickup truck registered to defendant’s girlfriend. The truck was parked on defendant’s property
about seventy-five feet from defendant’s home. Defendant was arrested and initially
incarcerated.

         In a series of motions, addressed by the court following defendant’s convictions,
defendant argued that the State withheld, lost, or otherwise failed to produce material evidence,
which violated his due process and fair trial rights and prejudiced him in presenting an effective
defense. In addressing these arguments, the court explained that, essentially, it must “perform 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,” citing State v. Gibney, 2003 VT 26, ¶ 38, 175 Vt. 180 (quotation omitted). The court
provided a detailed analysis with respect to each item of challenged evidence, which is set forth
below in connection with defendant’s arguments.

         With respect to the challenged evidence in general, the court explained that case law has
established that perhaps the most important factor in its analysis was the strength of the other
evidence against defendant. Essentially, it was a “harmless error” analysis—that is, a trial need
not be perfect, just fundamentally fair. In this case, the court found that Burns and Perron each
testified and admitted their culpability for the same crimes that defendant was charged with.
They each clearly implicated defendant as a full-fledged participant and co-conspirator in
entering the gravel pit and storage trailer with intent to remove equipment and tools (burglary),
and stealing and taking away various items worth more than $900 (grand larceny). The court
found that Burns and Perron credibly testified that they were not offered or promised any
inducements to testify, and indeed, each was already serving significant sentences for their own
felony convictions. Additionally, the court explained, many of the stolen items were found in a
pickup truck registered to defendant’s girlfriend, which was hidden away from the road on the
property where defendant lived. The court found this combination of direct and circumstantial
evidence, if accepted by the jury, which it ultimately was, to be arguably insurmountable or
nearly so. Thus, the court’s “pragmatic balancing” led it to conclude that the State’s negligent
loss of and failure to maintain and produce evidence, although arguably relevant and potentially
helpful, did not fundamentally deprive defendant of a fair trial. The court therefore denied
defendant’s motions to dismiss, for acquittal, for new trial and for further evidentiary hearing.
Following his sentencing, defendant appealed.

         We begin with defendant’s challenge to the State’s late production of a written statement
that defendant gave to police on July 22, 2011, the day after his arrest, along with a Miranda
waiver form. These items were provided to defendant shortly before trial. In his written
statement, defendant asserted that he had been with Burns and Perron during the evening of July
19 and the early morning hours of July 20, but he denied participating in the burglary and other
alleged crimes. Defendant provided the names of various people who he alleged would support
his assertions. This list included Perron, who had implicated defendant, pled guilty himself, and
testified at defendant’s trial as to defendant’s participation and involvement in the crimes at
issue.

        The court determined that the police had placed defendant’s statement and Miranda
waiver “in the file,” and “forgot” about them because they were not used to prosecute defendant.
It found the State’s failure to disclose these materials clearly violated Brady v. State of
Maryland, 373 U.S. 83 (1963), and V.R.Cr.P. 16(a)(2)(A), and it found the State’s excuse for its
late disclosure to be extremely feeble, at best. While the failure to produce these documents was
clearly negligent, the court found no evidence that it was done in bad faith or that there was any
animus against defendant or intent to sabotage his possible defenses. Rather, the prosecution
appeared to have believed that they had an “open and shut case” with the confessions and
testimony of Burns and Perron, and thus, preparation for possible trial and compliance with the
rules got short shrift. If anything, the court continued, this failure as well as others in the case,
supported the defense’s position at trial that this was a hurried, careless and sloppy investigation
overall.

        The court concluded, nonetheless, that the late disclosure had relatively little impact on
defendant’s reasonable ability to fashion a viable defense or to summon potentially supportive
witnesses. It explained that defendant’s statement had not really been used adversely against
him at trial. Its existence had been referred to, accurately as to its content, and defendant denied
all involvement in the burglary. To the extent that this statement was “exculpatory”—only in the
most literal sense because defendant simply denied committing the crimes; it did not provide any
other probative details that would corroborate his flat denial of any involvement—defendant was
not denied the use of it at trial because the essence of it came in through the State’s own case.1
With respect to the list of names of other possible defense witnesses, the court asserted that
surely defendant could have recreated the list himself during his trial preparation with his
attorney. There was no specific claim or proffer that defendant’s memory was so unreliable that

       1
          The court prohibited the State from entering the statement itself into evidence as a
sanction for its late production.
                                              2
he could not later come up with the same names as potential “alibi” witnesses, and that he
needed the prior statement as a memory aid or even as “past recollection recorded.”

        Defendant challenges this ruling on appeal. He maintains that the question of whether
the State acted in bad faith was irrelevant, and that the court erred in concluding that the State’s
failure to timely disclose these documents had relatively little impact on his reasonable ability to
fashion a viable defense and to summon potentially supportive witnesses. According to
defendant, his statement was exculpatory and “fully corroborated” his denial and included a list
of potential alibi witnesses. He argues that he reasonably assumed that his attorney was aware of
this document. Defendant claims that he was prejudiced by the late production “because he and
his attorney spent months preparing a defense without the benefit of all the available exculpatory
evidence, based upon inexcusable neglect by the State.”

        To establish reversible error under V.R.Cr.P. 16, a defendant must show both a violation
of the rule and resulting prejudice. See State v. Sird, 148 Vt. 35, 39 (1987). The court does not
need to assess whether the State acted in good faith in conducting this analysis, but any finding
on this point by the trial court is harmless error. We agree with the trial court that defendant
failed to show prejudice here. As set forth above, the statement at issue was defendant’s own
statement and its substance came in during the State’s case. It was exculpatory only in the most
general sense and the jury was well aware that defendant denied involvement in these crimes.
There was no showing, or even argument, that defendant could not recreate his list of alibi
witnesses, mindful, of course, that one of the named alibi witnesses testified against defendant.
Defendant was not prejudiced by the late production of these documents.

        With one exception, the remaining items at issue were lost by law enforcement. As set
forth above, with respect to these items, the court must “perform 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.” Gibney, 2003
VT 26, ¶ 38. As previously noted, the court found the evidence of defendant’s guilt to be
extremely strong here.

        We begin with police photographs of numerous shoe prints and tire tracks in and around
the gravel pit taken on the morning of July 20. The trial court found that these photographs went
“into the file” and were forgotten. They were then lost by law enforcement through carelessness
and inattention, not bad faith or intentional disruption of the trial process. Defendant appeared to
argue that he could have used this evidence to show that the tire tracks from his pickup truck,
and/or footprints from his shoes or boots, did not match the tracks and prints in the photographs.
The court found the utility of this possible approach to be slim because it would be entirely
speculative and would require defendant to overcome the natural suspicion that goes with
attempting to “prove a negative.” Defendant’s contention could only be minimally persuasive,
because defendant at some later point could have arguably changed the tires on his truck or
gotten rid of any shoes or boots worn on the date in question. The absence of a positive match
would not necessarily establish that defendant was never at the gravel pit. To be sure, the court
continued, defendant would only need to establish reasonable doubt, but the court found it
unlikely that a showing concerning footprints or tire prints, even if it could have been made,
would do so, especially in light of the direct trial testimony from the two other individuals
implicating defendant.

        Defendant argues on appeal that the court erred in its analysis. According to defendant,
the State was very negligent in losing these materials, and there was a reasonable possibility that

                                                 3
this evidence would have been favorable. In particular, he states that he could have used the
photos to show that he did not create any of these footprints and therefore, he was not present at
the scene.

        These arguments fail for the reasons identified by the trial court. The court
acknowledged that the State was negligent in losing these photographs, but it found the lost
evidence of minimal importance. As the court explained, defendant could easily have gotten rid
of the shoes he wore that evening. The absence of a match would not prove that defendant was
not at the scene. We agree with the court’s assessment of the significance of this evidence,
particularly when weighed against the other evidence of guilt adduced at trial.

        Defendant next argued to the trial court that a police officer had taken photos of shoe
prints that he made in soft ground just outside the Sheriff’s Department on July 21 and that the
officer declined to keep his shoes as evidence. The officer testified at trial that he did not take
any such photos, and the court found the officer credible on this point. Again, the court found
that the probative value and importance of this evidence would be entirely speculative. There
was no corroborating evidence that the shoes defendant wore on July 21 were in fact the same
ones worn the night before, or that the lack of a positive match would tend to disprove his
presence at the gravel pit.

        Defendant contends on appeal that the officer should have taken photographs of the shoe
prints, and that the failure to collect and preserve such evidence must be deemed gross
negligence. Defendant does not show that he raised this argument to the trial court, and he
claims no plain error. We thus we do not address this argument.. See State v. Carpenter, 2013
VT 28, ¶ 5 (where argument not raised in trial court, Supreme Court review is for plain error
only). See The final piece of evidence concerns photographs taken during the burglary by an
automatic “game camera” set up at the pit. The court found that the memory chip was taken out
of the camera and retained by police, apparently after the owners and/or officers had viewed
some of the pictures. It was unclear exactly which officer took possession of the memory chip
and brought it back “for the file.” Some, but apparently not all, of the pictures on the chip were
copied onto a disc and given to the State’s Attorney. Prints of some of those pictures were
produced at trial and the owners testified that, at least to their recollection, there were other better
pictures. None of the photos could be described as visibly depicting or conclusively identifying
any specific person, however, including Burns and Perron, who admitted to having been there.
There was nothing to suggest that any of the photos would have identified specific tire track
imprints or shoe prints sufficient to support testimony as to whether they matched exemplars
offered by the defense.

         The State provided defendant with some photographs on the first day of trial, and a
cursory review suggested that they were effectively useless. The memory chip could not be
located, again due to negligence and inattention. The court found the relevance and materiality
of the missing pictures to be minimal. The absence of defendant in any such picture was of little
utility in establishing reasonable doubt because the State could easily explain away his absence,
at least without any “alibi” witness who could squarely place defendant elsewhere at the time
which potential witnesses defendant always had it in his power to identify and produce at trial,
even without a prior written statement identifying them.

        Defendant argues that he did not need to show that this evidence was exculpatory, only
that it was potentially exculpatory. He maintains that the game camera photos would have
provided evidence from a “third eyewitness” whose credibility was not an issue. These

                                                   4
arguments are without merit. The court applied the appropriate standard in considering this
evidence. Defendant must show “a reasonable probability that the lost evidence would be
exculpatory,” and if so, the court must engage in the three-part balancing test cited above. The
court here found the lost evidence of minimal importance, particularly when weighed against the
other evidence of defendant’s guilt. It did not err in its assessment.

        Having found no prejudice resulting from the lost evidence or late production of
evidence, we reject defendant’s argument that “the cumulative and combined effect” of the
State’s failure to disclose evidence denied him due process and a fair trial. See State v. Brooks,
2013 VT 27, ¶ 33 (reaching same conclusion).

        Defendant next argues that the court should have held an evidentiary hearing before
denying his motion for a new trial based on newly discovered evidence. He cites as “newly
discovered evidence” phone records showing calls between the Sheriff’s Office and defendant’s
home. Defendant’s girlfriend lived with defendant and his mother. Defendant maintains that
these records would have supported claims by his girlfriend she had discussed defendant’s alibi
with a police officer. The girlfriend claimed that she had spoken to the officer for fifteen to
twenty minutes, but the longest call reflected was four and a half minutes.

         The record shows that this issue arose pretrial. In a pretrial motion to dismiss, defendant
argued that several days after his arrest, his girlfriend had given a police officer a statement over
the phone. Defendant asserted that his girlfriend said that she spoke to the officer for fifteen to
twenty minutes about defendant’s whereabouts on the evening in question, including providing a
list of corroborating witnesses. PC 69. The State opposed defendant’s motion to dismiss, and
provided an affidavit from the relevant police officer stating that he had not spoken to
defendant’s girlfriend as claimed in defendant’s motion. Defendant did not ask the officer about
this alleged conversation at trial; he did not call his girlfriend to testify; he did not present any
alibi testimony.

        In his post-verdict motion to dismiss, defendant alleged that his girlfriend would testify at
an evidentiary hearing that, shortly after the alleged crimes were committed, the officer called
her at defendant’s residence and asked her questions concerning the investigation. He later
submitted telephone records showing three calls from the Sheriff’s Department to the home on
July 22, 2011, July 27, 2011, and August 17, 2011. The calls lasted, respectively, four and a half
minutes, one minute and forty seconds, and one minute and thirty-eight seconds. Defendant
argued that this “newly discovered evidence” warranted a new trial because it would show that
the officer’s denial of having made the calls was part of “an ongoing police pattern to stimey,
confound, vex, and obfuscate the defense in this matter;” it would have supported defendant’s
statement to the police; and it would have been valuable impeachment material to use at trial
against the officer. The court denied the motion, noting that nothing had prevented defendant
from calling his girlfriend as a witness at trial to dispute the officer’s account.

         We find no error in the court’s denial of this request without a hearing. See State v.
Miller, 151 Vt. 337, 339 (1989) (explaining that court has discretion in ruling on motion for new
trial); State v. Unwin, 142 Vt. 562, 565 (1983) (recognizing that trial court need not hold hearing
on motion that is frivolous or totally lacking in merit). As we have explained, “[m]otions for
new trial on the ground of newly discovered evidence are not favored by the courts and are
viewed with great caution; courts are properly reluctant to grant a second trial once a defendant
has had his or her day in court and been fairly tried.” State v. Bruno, 2012 VT 79, ¶ 9, 192 Vt.
515 (quotation omitted). To be entitled to relief, defendant needed to show all of the following:

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“(1) the new evidence would probably change the result on retrial; (2) the evidence was
discovered only subsequent to trial; (3) the evidence could not have been discovered earlier
through the exercise of due diligence; (4) the evidence is material; and (5) the evidence is not
merely cumulative or impeaching.” Id.

        The proffered evidence here plainly failed to meet this standard. For all the reasons set
forth above, it would not probably change the result on retrial. Whether the officer spoke with
defendant’s girlfriend about alibis was not a disputed, material issue in this trial. At most, the
evidence is merely impeaching. The court did not err in denying defendant’s request.

       Affirmed.

                                               BY THE COURT:

                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice

                                               _______________________________________
                                               Geoffrey W. Crawford, Associate Justice




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