                                      ENTRY ORDER

                        SUPREME COURT DOCKET NO. 2014-070

                                    MARCH TERM, 2014

State of Vermont                                 }    APPEALED FROM:
                                                 }
                                                 }
   v.                                            }    Superior Court, Franklin Unit,
                                                 }    Criminal Division
Derrick D. Jones                                 }
                                                 }    DOCKET NO. 1304-11-13 Frcr
                                                 }
                                                      Trial Judge: Martin A. Maley

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

       Defendant was charged with attempted second-degree murder in November 2013 in
connection with an alleged stabbing. At his arraignment, he was held without bail pursuant to 13
V.S.A. § 7553. Defendant filed a motion to review bail, which was denied by the trial court after
a hearing on February 12, 2014. Defendant appeals, arguing that the evidence presented at the
hearing does not constitute “great” evidence of guilt as required by § 7553. We reverse and
remand to the trial court to set conditions of release, with the understanding that the State may
present additional evidence to support denial of bail.

        The State presented the following evidence at the hearing. First, a witness, Edward
Bennett, testified that he was present during the incident, but denied telling two law enforcement
officers at the hospital after the incident that defendant was the one who had stabbed the victim.
Next, Sargent Keith McMahon testified that he encountered the victim soon after the incident,
and that he was bleeding heavily and being physically supported by several others, including
Bennett. Sargent McMahon later spoke with Bennett at the hospital. Bennett refused numerous
times to tell Sargent McMahon who had committed the stabbing, but changed his mind when
Sargent McMahon told him that the victim’s condition was deteriorating, about an hour after the
incident. Due to a hearsay objection, Sargent McMahon did not say whom Bennett had
identified as the perpetrator. Finally, Detective Paul Morits testified that he spoke with Bennett
at the hospital after the incident, and witnessed his discussion with Sargent McMahon.
According to Detective Morits, Bennett was upset about the stabbing, and seemed to become
more excited and agitated when Sargent McMahon told him that the victim was in poor
condition. Detective Morits stated that Bennett then identified defendant as the perpetrator; his
statement was admitted under the excited utterance exception to the hearsay definition. See
V.R.E. 803(2). Detective Morits also testified that he saw the victim the next day, and that he
had wounds in his chest and back.

        Based on this evidence, the trial court found sufficient evidence to support the elements
of attempted second-degree murder and consequently denied bail under § 7553. The court noted
that it had discretion on whether to release defendant, but that it would continue to hold him
without bail. Defendant appeals, arguing that there was insufficient evidence as to the elements
of identity and intent, and that the trial court did not adequately exercise its discretion by
considering conditions of release under § 7554.

         Because defendant is charged with an offense punishable by life imprisonment, he may
be held without bail if “the evidence of guilt is great.” 13 V.S.A. § 7553. “In determining
whether the evidence of guilt is great, we consider whether substantial, admissible evidence of
guilt, taken in the light most favorable to the State, can fairly and reasonably convince a fact-
finder beyond a reasonable doubt that defendant is guilty.” State v. Pellerin, 2010 VT 26, ¶ 11,
187 Vt. 482, 996 A.2d 204 (quotation omitted). In order to meet this standard, the State must
present a prima facie case, with substantial admissible evidence to support each element of the
crime. State v. Duff, 151 Vt. 433, 439-40, 563 A.2d 285, 262-63 (1989).

         This standard was not met in the instant case. The State’s only evidence as to the identity
of the perpetrator was a hearsay statement made by Bennett in the hospital an hour after the
incident, as Detective Morits testified. Even assuming without deciding that this hearsay
statement is admissible as an excited utterance, it is insufficient to sustain a conviction. Standing
alone, a hearsay statement—even if admissible—generally will not be sufficient to support a
conviction unless the circumstances indicate that the statement is particularly reliable. State v.
Robar, 157 Vt. 387, 395, 601 A.2d 1376, 1380 (1991). The statement here does not bear indicia
of reliability—it was not corroborated by supporting evidence, and was in fact denied by the
declarant while on the stand. Without more, the statement would not support a conviction, and
thus it cannot support the denial of bail under § 7553.

        Because we reverse on this basis, we need not reach defendant’s other arguments. We
reverse and remand for a hearing as soon as reasonably practicable to set conditions of release.
We note, however, that if the State presents appropriate additional evidence of defendant’s guilt,
the trial court is not restricted from denying bail at that time or taking the evidence into
consideration in setting the amount of bail and conditions of release.

       Reversed and remanded.
                                                 BY THE COURT:



                                                 Paul L. Reiber, Chief Justice

   Publish
                                                 John A. Dooley, Associate Justice
   Do Not Publish

                                                 Beth Robinson, Associate Justice




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