2014 VT 68


State v. Felix (2012-248)
 
2014 VT 68
 
[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 68

 

No. 2012-248

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Criminal Division


 


 


Tiffanie Felix


October Term, 2013


 


 


 


 


Cortland
  Corsones, J.


 

William H. Sorrell, Attorney General, and Evan Meenan,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, Rebecca Turner,
Appellate Defender, Anna Saxman,
  Deputy Defender General, and Pamela Eaton, Law Clerk (On
the Brief), Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:   Reiber, C.J., Dooley, Skoglund and Robinson, JJ.,
and Crawford, Supr. J.,
                     Specially Assigned
 
 
¶ 1.          
ROBINSON, J.   Defendant Tiffanie Felix appeals her conviction
for the sale or delivery of 200 milligrams or more of heroin following a jury
trial in the Rutland Superior Court, Criminal Division.  Defendant argues that
the court erred in refusing to allow her to impeach the credibility of the
State’s key witness in various ways, depriving defendant of a fair trial.  We
reverse and remand for a new trial.  
I.
¶ 2.          
Two sets of events are relevant to this appeal.  First, in July 2010,
the State’s key witness, who was facing charges for aiding in the commission of
a felony and aiding in the concealment of stolen property, entered into a
cooperation agreement with the Vermont Drug Task Force (VDTF) to work as a
confidential informant.  The terms of the confidential-informant agreement
provided that the informant’s cooperation with VDTF was to be made known to the
prosecutor handling her underlying charges, who would consider her cooperation
in recommending a sentence to the court.  In the agreement, the informant agreed
to cooperate with the investigation of three targets, conduct controlled buys,
wear audio-surveillance devices, and testify truthfully at any hearing or trial
regarding any case in which she cooperated.  The informant’s principal contact
at VDTF was Detective David LaChance.
¶ 3.          
On July 27, 2010, Detective LaChance gave the informant $150 to purchase
heroin in a controlled buy at defendant’s apartment.  Before the informant entered
defendant’s apartment, Detective LaChance did a pat-down search to ensure she
was not carrying any drugs with her into the apartment.  He did not perform a
cavity search.  The informant was not wearing a recording device during the
controlled buy.
¶ 4.          
Detective LaChance or another officer with whom he was in radio contact
observed the informant from the time she left Detective LaChance’s car until
she entered the apartment, and again after she exited and returned to Detective
LaChance.  The informant was the only witness to testify about what happened in
defendant’s apartment.  She testified that she entered defendant’s apartment
and purchased $150 worth of heroin from defendant.  She testified that she subsequently
went upstairs to the bathroom, but that she did not get any heroin there, or
use or tamper with the heroin she had just purchased from defendant.  The informant
testified that when she came downstairs from the bathroom, she saw that a man
she did not know had entered the apartment.  She testified that she did not get
any drugs from him.  An officer who was watching the apartment confirmed in his
own testimony that an unidentified man entered the apartment while the
informant was there.  Detective LaChance testified that the informant returned
from the controlled buy with ten bags of heroin.  Upon her return, he performed
another pat-down search of the informant’s clothing and confirmed that she had
no other heroin or money on her person.  He also testified that, based on his
training and experience, the bags of heroin the informant provided after the
buy did not appear to have been stored in a body cavity.  This evidence was the
basis for defendant’s conviction.
¶ 5.          
The second set of alleged events that is central to the issues on appeal
of defendant’s conviction involves a traffic stop of the informant’s vehicle a
month later, and the impact of the events at that traffic stop on Detective
LaChance’s cooperating-informant agreement with her.    Detective LaChance’s
“Statement of Termination” of the informant’s cooperation agreement includes
the following account: [1]
 
On 8-20-10 Trooper Duca stopped [the informant] who was found to have another
known drug offender inside her vehicle.  When stopped [the informant] told Tpr
Duca that she was working for me, at that time in the middle of a deal . . . . 
[I]n fact I did not know that [the informant] was with the offender.  
 
 
As a result of this stop Tpr Duca recovered 34 bags of heroin from the
passenger/offender . . . .
 
 
As of that stop I have not had any contact with [the informant].
 
 
Due to the above information [the informant] is terminated and AG Robert Menzel
was notified as was Tpr McNeil.  [The informant] was re-cited for the charges
of assc to burglary.
 
Evidence proffered in connection
with pretrial motions suggests that Detective LaChance expressly acknowledged
that he terminated the informant’s cooperation agreement “for untruthfulness.” 
After termination of her cooperation agreement with VDTF, the informant pled to
the underlying charge against her, securing a deferred-sentence agreement that
required her to cooperate in testifying at defendant’s trial.  
II.
¶ 6.          
At the heart of this appeal is the defendant’s desire for the jury to know
that prior to trial the State’s lead investigator stopped working with the
State’s own star witness (the informant)—on whose credibility the State’s case
was entirely dependent—because, as a result of the traffic stop incident, he
lost confidence in her truthfulness.  The State tried at every juncture to make
sure that the jury would not be privy to this information.  This conflict
played itself out through pretrial motions, evidentiary rulings at trial, and
post-trial motions.
¶ 7.          
Before trial, the State filed a motion in limine with respect to
information concerning VDTF’s termination of its cooperation agreement with the
informant.  The State argued that defendant could ask when and why the informant
was terminated only during cross-examination of her, and for the sole purpose
of inquiring into her character for truthfulness, but could not introduce
extrinsic evidence concerning her termination or inquire into it “for any other
purpose or in any other manner.”  Defendant could not, the State argued,
introduce extrinsic evidence concerning the informant’s termination due to the
limitations in V.R.E. 608(b).  The State further argued that the informant’s
termination was not relevant to her motive for testifying against defendant and
thus the defense could not base an inquiry on V.R.E. 404(b).
¶ 8.          
Defendant, on the other hand, filed a pretrial notice of intent to offer
evidence that the informant was stopped in August 2010 and lied to the trooper
by telling him she was in the middle of a controlled buy for VDTF at the time
of the traffic stop.  Defendant sought to introduce this information to show
that the informant’s cooperation agreement was terminated as a result of this
incident.  Defendant’s notice cited V.R.E. 404(b), 608 and 609.  In arguing
against the State’s motion, defendant indicated that she sought to introduce
evidence that the lead investigating officer in the case terminated the
informant for untruthfulness stemming from the traffic stop incident. 
Defendant argued that the evidence showed “the context of her relationship with
the drug task force and police officers.”  The VDTF’s agreement with the
informant was not, in fact, the agreement pursuant to which the informant was
testifying; the informant’s cooperation agreement had been terminated, and she
was now testifying pursuant to the requirements of her deferred sentence in the
underlying charge.  Defendant argued that the jury was entitled to understand
that.
¶ 9.          
After a hearing, the court ruled that defendant could ask the informant
about the traffic stop incident on cross-examination, but deferred ruling on
the other questions raised by the parties’ pleadings until the evidence was
further developed at trial, assuming a timely objection.
¶ 10.      
At trial, defendant made numerous attempts to elicit information about
the termination of the informant’s cooperation agreement.  During
cross-examination of Detective LaChance, defendant offered the informant’s “packet,”
containing her cooperation agreement, Detective LaChance’s termination
statement, and various other documents, as evidence.  The court declined to
admit the termination statement on the ground that it contained hearsay in the
form of the police officer’s statements regarding the traffic stop.  Later in
the cross-examination, the court reminded defendant to limit her questioning
about Detective LaChance’s reasons for terminating the informant’s cooperation
agreement.  The court explained that she could ask the detective if the
informant had been terminated, but if the reason was based on hearsay,
defendant could not ask about the reason.
¶ 11.      
Defendant was able to confirm, through Detective LaChance’s testimony,
that the informant’s cooperation agreement had been terminated.  Detective
LaChance testified that he had attempted to contact the informant to notify her
that she had been terminated but that he was unable to reach her.  He further
confirmed that he advised the prosecutor in the informant’s case that her
cooperation agreement had been terminated.  After defendant twice attempted to
ask Detective LaChance if the informant was terminated “due to an incident,”
both of which were interrupted by the State’s objection, the following sidebar
occurred:
  Court:  Where are we going with this
questioning?
  Defense Counsel:  So I was going to him
terminating her, and then my next question was, “You thought she couldn’t
cooperate in this investigation honestly”—
  Court:  You thought she what?
  Defense Counsel:  “You thought she
couldn’t cooperate in this investigation honestly and truthfully?”  The
following question, “Was she ultimately terminated?”  That I’m not going to say
but—
  Court:  Again, it’s based on hearsay,
so I’m not going to allow that.  I’m going to tell you not to talk about the
termination.  Further, it’s been brought up like three times.
¶ 12.      
Defendant never asked Detective LaChance about whether he believed the
informant could continue to cooperate honestly and truthfully with VDTF and
engaged in no further questioning with him about the reasons for her
termination.
¶ 13.      
At the end of Detective LaChance’s cross-examination, defendant stated
for the record that she objected to the court’s limitations on her questioning
regarding the termination of the informant’s cooperation agreement.  She argued
that the issue of the informant’s termination went to the informant’s
“relationship with the officers” and the fact that she was no longer bound by
her agreement with VDTF.  The court again stated that the information defendant
sought was hearsay.  It further explained that the information was “impeaching
by extrinsic evidence and it ha[d] to come in through the [the informant].”
¶ 14.      
On cross-examination of the informant herself, defendant engaged in a
lengthy line of questioning regarding her statements to the police officer
during the traffic stop.  Defendant asked: “On [the date of the traffic stop],
isn’t it true that you lied to the police by telling them that you were working
with the Task Force in the middle of a controlled buy?”  The informant
responded in the negative.  Defendant asked the witness four times during the
ensuing line of questioning whether she told the police officer she was with
her passenger because she thought he was in possession of drugs, suggesting
that she was working for VDTF at the time.  Each time, the informant testified
that she could not recall exactly what she told the police officer but that
there must have been some misunderstanding if he took her statement to mean she
claimed to be in the middle of a controlled buy for VDTF.  The court eventually
directed defendant to move on from this question.
¶ 15.      
With respect to the termination of her cooperation agreement, the informant
testified that she stopped working for the VDTF because she “felt uncomfortable,”
that she never contacted Detective LaChance to let him know that she would no
longer cooperate, and that he did try to call her a few times but she did not
answer his calls because she was “busy at the time.”
¶ 16.      
At the close of the State’s case, defendant moved for a judgment of
acquittal based on her earlier objection to the court’s exclusion of testimony
regarding the informant’s termination as it relates to her truthfulness.  The
court denied defendant’s motion for judgment of acquittal and reiterated that
defendant had been permitted to question the informant about the reasons for
her termination, and that questioning Detective LaChance about the reasons for
the termination would have called for inadmissible extrinsic evidence under
V.R.E. 608 and inadmissible hearsay because Detective LaChance had no firsthand
knowledge of the August 2010 traffic stop. 
¶ 17.      
After trial, defendant filed a motion for a new trial, arguing that the
court improperly limited the cross-examination of both the informant and
Detective LaChance, leaving the jury with false impressions of the reasons for the
termination of the informant’s agreement.  The court denied defendant’s motion,
standing by its earlier rulings that the evidence defendant sought to admit
through Detective LaChance’s testimony was inadmissible hearsay and extrinsic
evidence prohibited by V.R.E. 608(b).  The court rejected defendant’s contentions
that evidence concerning the reason for the informant’s termination was
admissible as “context” evidence, and that the evidence showed the informant’s
motive to lie about the controlled buy.  The court concluded that defendant was
able to bring out evidence that the informant’s cooperation agreement was
terminated, and that she was able to cross-examine the informant on “motive,
bias and interest based on her agreement with the State.”
III.
¶ 18.      
On appeal, defendant argues that the court improperly limited her
cross-examination of Detective LaChance regarding his reasons for terminating the
informant’s cooperation agreement—testimony defendant argues would have
demonstrated that the informant had a motive to fabricate testimony during
trial, would have provided the “complete picture” of the informant’s
cooperation with VDTF, and would have undermined the informant’s credibility by
showing she was not truthful.
¶ 19.      
We review the trial court’s evidentiary rulings deferentially and
reverse “only when there has been an abuse of discretion that resulted in
prejudice.”  State v. Burke, 2012 VT 50, ¶ 23, 192 Vt. 99, 54 A.3d
500 (internal quotation omitted).  In light of the “paramount importance of
cross-examination” to criminal defendants, State v. Fuller, 168 Vt. 396,
403, 721 A.2d 475, 481 (1998), a court’s discretion in evidentiary matters is
tempered by the duty to protect a criminal defendant’s constitutional right to
confront witnesses.  State v. Lawrence, 2013 VT 55, ¶ 6, 194 Vt.
315, 80 A.3d 58.  
¶ 20.      
Defendant challenges multiple rulings of the court—its refusal to admit
the termination statement into evidence, and its refusal to allow various
inquiries of Detective LaChance on cross-examination.  Defendant argues
generally that she was entitled to let the jury know that the informant’s
agreement was terminated by Detective LaChance on account of the traffic stop
incident.  Although defendant frames this as a single goal, through these
various questions and proffers, defendant actually sought to establish two
related but distinct facts: (1) that the informant lied to a police officer during
a traffic stop by telling him she was in the middle of a controlled buy for
VDTF; and (2) that Detective LaChance terminated her cooperation agreement
because, based on what he learned about the traffic stop, he no longer
considered her to be truthful.  
A.
¶ 21.      
The trial court’s rulings as they relate to the first inference present
easier questions.  Detective LaChance had no firsthand knowledge of the traffic
stop incident, and therefore could not testify about what happened during that
traffic stop.  See V.R.E. 602 (“The testimony of a witness may be excluded or
stricken unless evidence is introduced sufficient to support a finding that
[the witness] has personal knowledge of the matter.”).  Nor could he merely
repeat allegations about the incident that were relayed to him by Trooper Duca. 
The trial court rightly concluded that such testimony would be hearsay, and thus
inadmissible.  V.R.E. 801, 802.  In the absence of an actual witness to the
traffic stop incident, defendant could not rely on testimony from Detective
LaChance to show that the informant did, in fact, lie to law enforcement about
her participation in a controlled buy at the time she was pulled over. 
Whatever constitutionally protected right defendant may have to elicit evidence
showing a witness’s motive to fabricate or otherwise impeaching a witness’s
credibility, it does not require a court to allow a defendant to introduce or
elicit incompetent or hearsay testimony for the purpose of such impeachment. 
While the rules of evidence and the Sixth Amendment’s Confrontation Clause
generally protect similar values, “the Clause applies only to evidence that is
relevant and otherwise admissible under the rules of evidence.”  Lawrence,
2013 VT 55, ¶ 6 n.2 (citing State v. Fuller, 168 Vt. at 403-04, 721
A.2d at 481).
¶ 22.      
Defendant does not grapple with the hearsay problem on appeal, instead
offering theories as to why evidence of the incident is admissible pursuant to
V.R.E. 404(b) to show defendant’s motive, or to give the jury a complete
picture.  Even if evidence concerning the traffic stop incident could be
admissible, defendant would still have to present it in an admissible form—and
the description of an officer with no firsthand knowledge of the incident who
could, at best, relay another officer’s reports is not an admissible form.  To
the extent the trial court excluded the termination statement because it
contained a hearsay account of the traffic stop incident, and insofar as the
trial court precluded Detective LaChance from testifying about the traffic stop
incident, we affirm the trial court’s rulings.
B.
¶ 23.      
The trial court’s rulings relating to Detective LaChance’s termination
of the cooperation agreement present more challenging questions.  The court
allowed testimony that Detective LaChance terminated the informant’s agreement,
but declined to allow defendant to ask him about the reason for his decision.  The
focus of defendant’s argument on appeal is not that evidence that the informant
lied during the traffic stop is admissible in its own right; it is that
evidence that Detective LaChance terminated her agreement because he lost
confidence in her truthfulness following the traffic stop incident is relevant
and admissible.  From this perspective, the truth of the allegations concerning
the traffic stop is less important than the consequences it triggered.  
1.
¶ 24.      
Defendant first argues that the evidence, thus understood, was
admissible to show motive.  Specifically, defendant argues that testimony
regarding the traffic stop and the ensuing termination of her initial
cooperation agreement would have shown the jury that the informant had a motive
to fabricate her statements about the controlled buy.   
¶ 25.      
The U.S. Supreme Court has recognized that “the exposure of a witness’
motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.”  Delaware v. Van
Arsdall, 475 U.S. 673, 678-79 (1986) (quoting Davis v. Alaska 415
U.S. 308, 316-17 (1974)).  Accordingly, 
a
criminal defendant states a violation of the Confrontation Clause by showing
that [he or she] was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of
the witness, and thereby to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.
 
Id. at 680 (quotation omitted).  This Court has likewise
recognized the Confrontation Clause’s protection of appropriate cross-examination
designed to expose a witness’s motivations.  State v. Cartee, 161 Vt.
73, 76-77, 632 A.2d 1108, 1110-11 (1993).  Nonetheless, “trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.”  Van Arsdall, 475 U.S. at 679;
see also Cartee, 161 Vt. at 77, 632 A.2d at 1111 (“[T]he Sixth Amendment
and Chapter I,
Article 10 of the Vermont Constitution
do not prevent a trial court from imposing reasonable limits on
cross-examination into the partiality of a prosecution witness.”).  The Vermont
Rules of Evidence reflect these principles.  While V.R.E. 404(b)
generally prohibits evidence of other crimes, wrongs or acts committed by a
person offered to show the person acted in conformity with those other actions,
it allows evidence of other acts when introduced for other purposes, such as
proof of motive.
¶ 26.      
Defendant argues that the fact that the informant’s agreement was
terminated because of her alleged conduct at the traffic stop is probative of
her motive to fabricate testimony against defendant in this case.  This
argument is complicated by the fact that substantial evidence was admitted
concerning the informant’s motives.  The jury heard testimony that the
informant agreed to cooperate because she was facing up to thirty-five years in
prison on unrelated charges and that her cooperation could help mitigate her
sentence.  The jury also learned that because of the termination of the
informant’s agreement, she was sentenced on her underlying charges but that
sentence was deferred.  The jury also heard that as a condition of the
informant’s deferred sentence, she was required to testify truthfully at trial
and if she did not, she would face potential imposition of her deferred
sentence.  The informant’s stake in her cooperation was large and the jury knew
of the informant’s ongoing risk if she violated the conditions of that cooperation. 
Given this record, the fact that the informant’s agreement was terminated because
of alleged misrepresentations during the traffic stop adds little, if anything,
to the jury’s meaningful understanding of all the forces at play in the
informant’s motive to testify.  
¶ 27.      
Defendant attempts to overcome this obstacle by arguing that although
the jury already knew that the informant had a motive to lie because of her
bargain with the State for leniency, if they realized that she had lost her
first deal because of her lies in the traffic stop, they could conclude that
now she had an “even greater” incentive to protect the bargain with the State
secured by her deferred sentence.  Having blown her first cooperation agreement
with the State, defendant argues, the informant was especially motivated to
provide satisfactory testimony to preserve her second chance.  Given that the
jury knew that she engaged in the controlled buy as part of a deal with the
State, that her initial deal was terminated, that her deferred sentence in
connection with her own case was on the line in connection with her testimony
in this case, and that she had provided a statement concerning the buy
immediately after she left defendant’s apartment—long before the traffic stop
incident—we cannot conclude that the trial court abused its discretion in
concluding that the excluded testimony lacked additional probative value with
respect to motive. 
2.
¶ 28.      
Defendant next argues that the fact that the informant’s cooperation
agreement was terminated in response to the traffic stop incident provided
context necessary to the jury’s decision.  This Court has recognized in
criminal cases that evidence of other misconduct may be admitted if it is “part
of the context of a crime charged where it is so interwoven with the crime
charged it cannot be separated without skewing the narrative.”  John A.
Russell Corp. v. Bohlig, 170 Vt. 12, 21, 739 A.2d 1212, 1220 (1999).  We
explained that evidence of other misconduct may be admissible if its exclusion
would “leave gaps in the narrative detracting from its credibility.”  Id.
 On this basis, we reversed a conviction based on a controlled drug buy when
the trial court declined to allow cross-examination of the police officer
concerning the informant’s history of manipulating drug buys, including
absconding with the buy money in one case, and in another providing the police
with a substance he claimed was LSD when it was not.  State v. Findlay,
171 Vt. 594, 595, 765 A.2d 483, 485-86 (2000) (mem.).  We rejected the notion
that the incidents other than the drug buy that gave rise to that prosecution
were somehow collateral:
Thus,
rather than being simply a distracting issue, the overall picture of [the
informant’s] relationship with the police, the circumstances surrounding his
cooperation, and the facts relevant to his role as an informant were highly
probative of the integrity of the November 21 buy.  Without evidence of [the
informant’s] actions in drug purchases both prior to and after November 21, the
jury was left without
the benefit of a reasonably complete understanding of the November 21 operation
as presented by [the officer]; thus, cross-examination was significantly
undermined.
 
Id. at 596,
765 A.2d at 486-87.
 
¶ 29.      
On the one hand, the traffic stop and subsequent termination of the cooperation
agreement were not so interwoven with the controlled buy underlying defendant’s
charges that their exclusion disrupts the narrative of the case.  The
controlled buy happened weeks before the traffic stop and subsequent
termination of the agreement.  On the other hand, the jury’s understanding of
the relationship between the informant and law enforcement was in this case
incomplete and potentially misleading.  The jury learned about all the steps
taken by the State to ensure the informant’s reliability, including the
extensive requirements of good behavior built into the code of conduct
applicable to informants and the potential consequences for non-cooperation,
but it never learned that the State had concluded that the informant had not
complied with her commitments.  Instead, the jury heard the informant’s
testimony that her agreement to cooperate terminated because she felt
“uncomfortable” and stopped returning Detective LaChance’s calls.  Detective
LaChance’s own testimony reinforced the informant’s claim.  He was allowed to testify
that the informant stopped cooperating and that her agreement was terminated
thereafter, but was not allowed to tie the termination to events other than the
informant’s own purported decision to stop cooperating—leaving the distinct
impression that the informant’s decision to stop cooperating, rather than any
concerns about her credibility on the part of law enforcement—led to her
termination.
¶ 30.      
The misleading nature of the evidence was exacerbated by Detective
LaChance’s express vouching for the informant in the following exchange:
 
State:  But the fact that you enter into that contract, does that mean that you
don’t—you don’t trust [the informant]?
 
  Detective
LaChance:  Doesn’t mean that in the least.
 
State:  Would you have agreed to work with her if you didn’t trust her?
 
  Detective
LaChance:  I wouldn’t have worked with her.  
The State introduced testimony
from Detective LaChance that he would not have worked with the informant if he
did not trust her, suggesting in no uncertain terms that he did, in fact, trust
her, without letting defendant elicit testimony that Detective LaChance did not
actually trust her, and that is why he stopped working with her.  It is not the
absence of information about the traffic stop that renders the jury’s picture
incomplete.  Because the State elicited only part of the story concerning Detective
LaChance’s relationship with and confidence in the informant, the jury was left
with a clear misimpression that Detective LaChance trusted the informant and
believed her to be truthful—an impression that was 180 degrees from the truth
as reflected in the evidence proffered by defendant.  For that reason, the
trial court’s refusal to allow defendant to ask Detective LaChance whether he
ultimately thought that the informant could cooperate in the investigation
honestly and truthfully—a question not designed to elicit any testimony about
the traffic stop—impermissibly “skew[ed] the narrative” with respect to the
central issue in this case—namely, the informant’s credibility.  See John A.
Russell Corp., 170 Vt. at 21, 739 A.2d at 1220.
¶ 31.      
In contrast to prior questions and proffers by the defendant, the
critical question defendant was not allowed to ask—“You thought she couldn’t
cooperate in this investigation honestly and truthfully?”—did not seek to
elicit a hearsay report about the traffic stop incident.  Rather, it sought to
elicit Detective LaChance’s opinion of the informant’s truthfulness—a subject
about which he had already offered incomplete if not outright misleading
testimony.  To the extent that the trial court excluded the question on the
basis of a hearsay exception, we conclude the question did not call for hearsay
testimony.
¶ 32.      
For similar reasons, we reject the trial court’s Rule 608 analysis of
this question.  We have serious doubts as to whether the fact that Detective
LaChance formed his revised opinion as a result of a specific incident means
that the opinion itself, without reference to the incident, is subject to the
constraints of Rule 608(b), which limits admissibility of extrinsic evidence of
specific instances of the conduct of a witness for impeachment purposes.[2]
 Rule 608(a) regulates—and generally allows—opinion and reputation evidence of
character.  However, even if Rule 608(b) did apply because a specific instance
of conduct underlay Detective LaChance’s opinion, Rule 608(b)(2) gives a court
discretion to allow questions about specific instances of the conduct of a
witness in cross-examination of another witness who has testified about that
witness’s character for truthfulness or untruthfulness.  In the face of
Detective LaChance’s vouching for the informant’s credibility, the court’s
refusal to allow defendant to ask Detective LaChance whether he had come to
distrust the informant exceeded the court’s discretion under Rule 608(b)(2). 
We cannot uphold the court’s exclusion of the question on the basis of Rule
608.
¶ 33.      
 Accordingly, we reverse and remand the case for a new trial.[3] 

Reversed and
remanded.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 34.      
REIBER, C.J., dissenting.   In this case, the jury convicted
defendant based on evidence that included testimony from a confidential
informant who was terminated for unrelated reasons after participating in the
controlled buy in this case.  The majority concludes the trial court erred in
limiting certain evidence surrounding the informant’s termination.  But the
jury had ample evidence with which to weigh the informant’s credibility and was
not misled by the State.  Defendant here asks this Court to second-guess the
jury’s credibility determination.  This we should not do.  Therefore, I
respectfully dissent.
¶ 35.      
I agree with the conclusion that the trial court properly excluded the
informant’s termination report as well as defendant’s cross-examination
questions of Detective LaChance regarding the subsequent and unrelated traffic
stop that led to the informant’s termination.  Defendant’s attempt to admit
this evidence in either form was designed to elicit inadmissible hearsay, since
the detective was not present at the traffic stop and therefore had no
firsthand knowledge of the incident.  See V.R.E. 602 (allowing exclusion of
testimony of which a witness has no personal knowledge), 801 (defining hearsay). 
Moreover, the specifics of that incident were inadmissible even if the evidence
had not been hearsay.  Under Vermont Rule of Evidence 608(b), “[e]vidence of specific
instances of conduct offered to attack the witness’s credibility are not
admissible through other witnesses as a matter of law.”  John A. Russell Corp. v. Bohlig, 170 Vt. 12, 22,
739 A.2d 1212, 1220 (1999) (citing 28 C. Wright et al., Federal Practice and Procedure
§ 6117, at 88 (1993)).  Extrinsic evidence of the informant’s
unrelated conduct could not be admitted through the detective to impeach the
informant’s credibility—it had to be admitted through the informant herself, in
the discretion of the trial court.  See id.
¶
36.      
The majority also properly rejects defendant’s argument that the
informant’s termination was probative of her motive to fabricate her testimony
under Rule 404(b).  Defendant’s contention is simply illogical because the
informant’s termination, which defendant claims gave rise to her motive to
fabricate, occurred after the controlled buy from defendant and thus
could not have influenced the events that day or her testimony consistent with
those events at trial.  Cf. In re
A.B., 170 Vt. 535,
536-37, 740 A.2d 367, 369-70 (1999) (mem.) (reversing and remanding for new
trial where defendant had demonstrated that alleged victim’s motive to
fabricate might have arisen before victim reported sexual abuse, but was not
permitted to explore the events giving rise to motive).  
¶ 37.      
The majority is then taken, however, with defendant’s claim that the
trial court erroneously refused to admit evidence of the reasons for
informant’s termination—either through the informant termination form or the
detective’s testimony about the contents of the form—when it concludes this
evidence should have been admitted because it was “so interwoven with the crime
charged it [could] not be separated without skewing the narrative.”  John A.
Russell Corp., 170 Vt. at 21, 739 A.2d at 1220.  The majority reasons that,
“[b]ecause the State elicited only part of the story concerning Detective
LaChance’s relationship with and confidence in the informant, the jury was left
with a clear misimpression that Detective LaChance trusted the informant and
believed her to be truthful.”  Ante, ¶ 30.  
¶ 38.      
This analysis errs for several reasons.  First, as the majority
acknowledges, the traffic stop leading to the informant’s termination was not
“interwoven with the crime charged” in the sense contemplated by John A.
Russell Corp..  In that case, we held that an employee’s previous
termination for dishonesty was not “interwoven” with his later breach of
contract claim against a different employer, and that evidence of the previous
termination could “be
excluded without affecting the narrative on the breach of contract at all.”  Id. at
21-22, 739 A.2d at 1220.  The majority fails to distinguish the facts of John
A. Russell Corp. from the instant
case.  Here the informant’s termination was, without dispute, for an unrelated
incident, which occurred long after the subject event and was completely
unrelated to the controlled buy in this case.
¶ 39.      
Moreover, although the majority relies for its “context” proposition on State
v. Findlay, the facts of that case are different.  171 Vt. 594, 765 A.2d
483 (2000) (mem.).  There, prior to trial, the court excluded all evidence of
prior controlled buys by the informant on the State’s motion, and, in addition,
the informant was never called as a witness at trial and was therefore never
subject to impeachment on cross-examination, a distinct difference.  Id.
at 596, 765 A.2d at 486-87.  That difference is compounded by our later
clarification that Findlay’s reasoning implicates cases involving “a total deprivation of the
opportunity to show the witness’s bias.”  State v. Brochu, 2008 VT 21,
¶ 87, 183 Vt. 269, 949 A.2d 1035.  “By contrast, we have been particularly
supportive of restrictions on cross-examination when the defendant wanted to
explore details of criminal conduct or other misconduct that was irrelevant or
only marginally relevant to the charges against the defendant.”  Id.  Defendant
here clearly had the right to attack informant’s credibility and she was not
deprived of the opportunity to do so as in Findlay.  The
exclusion of other evidence of specific conduct of the informant after the
controlled buy did not improperly restrict the opportunity for impeachment.  The
trial court applied the rules of evidence by limiting the scope of defendant’s
efforts to impeach.  The rules of evidence prohibit the introduction of
unrelated instances of specific conduct because they “ ‘possess[] the greatest capacity to arouse prejudice’ . . . [and]
can undermine accurate fact finding because of the tendency of juries to give
[them] too much weight.”  John A. Russell Corp., 170 Vt. at 23, 739 A.2d at 1221 (quoting
Advisory Committee Note to F.R.E. 405).  For this reason, courts should be
especially wary of allowing otherwise inadmissible evidence of specific conduct
to be introduced as “context.” 
¶ 40.      
Second, the jury was not misled about the informant’s relationship with
law enforcement.  In making her context argument, defendant cherry-picks
isolated testimony while ignoring the rest of the record before the jury.  The
jury learned of the origin of the informant’s deal with law enforcement: the
informant initiated contact with police requesting to cooperate in exchange for
consideration for leniency on several pending felony charges related to a
burglary.  The informant’s signed contract was admitted into evidence at
trial.  The jury heard that informant initially faced thirty-five years of
imprisonment on her pending felony charges, but ultimately received a deferred
eighteen-month sentence.  Testimony was introduced that, as part of the
deferred sentence agreement, she was required to testify in defendant’s trial
and ultimately the charges would be removed from her record.  As the majority
concedes, “[t]he informant’s stake in her cooperation was large and the jury
knew of the informant’s ongoing risk if she violated the conditions of that
cooperation.”  Ante, ¶ 26.  Moreover, the informant herself admitted
in her testimony that she selected defendant as a target for investigation and
that she did not personally like her. 
¶ 41.      
The jury also heard evidence of law enforcement’s perception of the
informant’s truth telling and the level of trust between them.  The jury heard
about the numerous steps taken to corroborate the information given by the
informant according to standard operating procedure, including the signing of
the confidential-informant contract outlining informant’s responsibilities,
surveillance of informant by numerous officers at the time of the controlled
buy, and thorough pat-downs both before and after the buy.  The jury learned of
the Drug Task Force’s plan to use informant’s controlled buy from defendant to
establish probable cause for a wire warrant to record future buys, a plan
thwarted by informant’s termination.  
¶ 42.      
Most pertinently, the jury heard the details of the incident giving rise
to the informant’s termination.  Detective LaChance confirmed that the
informant had not stopped cooperating voluntarily but had been terminated. 
Detective LaChance testified that although he trusted the informant at the
time of the controlled buy, he ultimately chose to terminate her
cooperation agreement several weeks afterward.  He testified that he would
never work with an informant he did not trust.  He testified to the steps he
took to terminate, including filling out a termination form to place in her
informant file and informing the prosecutor on the informant’s case that she
had been terminated.  The jury heard from both Detective LaChance and the
informant that the detective attempted to contact the informant to let her know
she had been terminated, but that she did not respond to his calls. 
¶ 43.      
Although defendant was not able to introduce all of the details of the
informant’s traffic stop through the cross-examination of Detective LaChance,
evidence about the stop eventually came in through the testimony of the
informant herself on cross-examination by defendant’s attorney.  Informant
testified that she stopped cooperating with law enforcement simply because she
“felt uncomfortable” and stopped returning Detective LaChance’s calls.  But
this opened the door for defendant to try to impeach her by showing that it was
circumstances surrounding the traffic stop that led to her termination, as
evidenced by the following exchange:
 
Defense counsel: Do you recall being stopped by the police on August 20th?
 
 
Informant: Yeah.
 
 
Defense counsel: And you were with a friend?
 
 
Informant: Yeah.
 
 
Defense counsel: On that date, isn’t it true that you lied to the police by
telling them that you were working with the Task Force in the middle of a
controlled buy?
 
 
Informant: No, I did not say that. 
 
. . . .
 
 
Defense counsel: Do you recall telling the officer that you were hanging out
with this person because you thought they had drugs on them?
 
 
Informant: No.
 
. . . .
 
 
Defense counsel: This is in the deposition, where you said, “I guess I said
something about the reason I’m hanging out with this person is because I think
he has drugs on him, yes.”  In error?
 
. . . .
 
 
Informant: Yes, I did.  I did say that in the deposition, but with the whole–the
police incident, I didn’t say that to the police officer. 
 
¶ 44.      
Admittedly, the testimony from the informant at trial on cross-examination
was disjointed, loaded with contradiction and at times difficult to follow. 
But this in itself is revealing. To summarize, several officers, including
Detective LaChance, testified that the informant was terminated for reasons that
were left unstated before the jury, but Detective LaChance also testified he
would not work with an informant he did not trust.  In contradiction, the
informant testified that she stopped working with the Task Force because she
became “uncomfortable.”  On cross-examination, the informant agreed she
purposely stopped returning the detective’s phone calls.  She testified that
about a month after defendant’s buy, she was stopped while driving without a
license with a passenger in her car, and that drugs were found as a result of
the stop.  And while informant denied it when shown her prior deposition
testimony stating that she told police at the traffic stop that she was working
with the Task Force, she also confirmed that she had stated in her deposition
testimony that she told the police officer during her stop that she was with
that particular passenger because she believed he had drugs on him.  
¶ 45.      
In total, this is not a record that requires a new trial.  This is
evidence of an evasive witness admitting to certain facts that go to the heart
of defendant’s objections before us, sufficient for the jury to question the
informant’s story and her reliability and to infer that the informant was
terminated because she was considered unreliable and untrustworthy by law
enforcement.  The jury was not deprived of the opportunity to determine the
informant’s credibility based on these facts; it simply made a credibility
determination that was unfavorable to defendant.  This credibility
determination was soundly within the province of the jury and not for us to
disturb on appeal.  State v. Johnson, 2013 VT 116, ¶ 27, ___ Vt.
___, 90 A.2d 874 (“We are
not triers of fact, and we will not substitute our judgment for that of the
jury.”).     
¶ 46.      
The majority errs for a third reason.  If the jury had insufficient
information or was somehow misled about the reason for terminating informant,
it was due to defendant’s failure to ask the right questions on cross-examination,
not due to the trial court’s evidentiary rulings.  Defendant could have asked
Detective LaChance his opinion of informant’s truthfulness at the time he
terminated her.  See V.R.E. 608(a) (“The credibility of a witness may be
attacked . . . by evidence in the form of opinion or
reputation, but subject to [the limitation that] the evidence may refer only to
character for truthfulness or untruthfulness . . . .”).  
¶ 47.      
But defendant did not take this tack.  Instead, she repeatedly
questioned Detective LaChance about the specific circumstances surrounding the
traffic stop.  Even her inquiry, relied on by the majority, as to whether
Detective LaChance believed the informant could “cooperate honestly and
truthfully” in the investigation was unequivocally probative not of the informant’s
character for truthfulness, but rather of her conduct during the traffic stop. 
Only in hindsight on appeal does defendant attempt to contort this line of
questioning into one of opinion under Rule 608.[4] 
As the majority notes, defendant’s constitutional right to confront adverse
witnesses does not provide her carte blanche to elicit inadmissible testimony. 
State v. LaRose, 150 Vt. 363, 369, 554 A.2d 227, 231-32 (1988)
(“Generally speaking, the Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the defense might wish.”
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).  Defendant
could have elicited her desired testimony in an admissible form but failed to
do so.      
¶
48.      
In short, defendant did not have a constitutional right to
introduce inadmissible testimony, and the trial court did not err in excluding
it.  The trial court’s ruling limiting cross-examination of Detective LaChance
and refusing admission of the termination report was not error. If not clear
through the cross-examination of the informant, defendant could have
made her point—that informant was terminated due to her untrustworthiness—by
eliciting Detective LaChance’s opinion under 608(a).  Given these
circumstances, even if the trial court had erred in its evidentiary
ruling—which it did not—there was no prejudice to defendant and any such error
would have been harmless beyond a reasonable doubt.  See State v. Fellows, 2013 VT 45, ¶ 23, 194 Vt. 77, 76
A.3d 608 (reciting the standard for a harmless-error analysis).  For these reasons, I would affirm the trial court.
¶
49.      
I am authorized to state that Judge
Crawford joins this dissent.

 


 


 


 


 


 


 


 


Chief Justice

 


[1] 
The State filed a motion to strike portions of defendant’s printed case,
including depositions of Detective LaChance and the informant, and Detective
LaChance’s statement of termination of the cooperation agreement.  The State
argues that these documents were not submitted below and are not a part of the
record on appeal.  On appeal, our review is “confined to the record and
evidence adduced at trial.”  Hoover v. Hoover, 171 Vt. 256, 258, 764
A.2d 1192, 1193 (2000).  The record is not, however, limited to matters
actually admitted into evidence and can include documents considered by the
court, including, for instance, documents a trial court considers as a
proffered exhibit but ultimately refuses to admit into evidence.  See United
States v. Burke, 781 F.2d 1234, 1245-46 (7th Cir. 1985); 16A C. Wright et
al., Federal Practice and Procedure § 3956.1, at 631 (4th ed. 2008).  In
this case, defendant specifically tried to introduce Detective LaChance’s
termination statement.  The trial court ruled the statement inadmissible.  It
was not improper to include the proffered and rejected exhibit in the printed
case for the limited purpose of enabling us to review the court’s evidentiary
ruling.  Likewise, the State submitted the two depositions it now seeks to
strike in connection with its pretrial motion in limine to exclude certain
evidence concerning the informant’s termination.  Although their relevance is
limited to the evidentiary issue before us, rather than, for example, the
sufficiency of the evidence introduced at trial, we decline to strike them from
the printed case.
 


[2] 
In fact, the dissent argues that if the jury had insufficient information or
was somehow misled about the reason for terminating the informant, it was due
to defendant’s failure to ask Detective LaChance his opinion of the informant’s
truthfulness at the time he terminated her—a question the dissent concedes
would have been admissible pursuant to V.R.E. 608(a).  See post, ¶ 46. 
But the primary proffered and rejected question that underlies this appeal was
virtually indistinguishable from the query the dissent acknowledges would have
been permissible. 
 


[3] 
Because we reverse on this evidentiary basis we do not reach defendant’s
arguments that her conviction was based on testimony the prosecution knew or
should have known was false.  Nor do we address defendant’s argument that the
court should have permitted her additional cross-examination of the informant regarding
the heroin allegedly found during the August 2010 traffic stop.  Because we do
not address the latter issue, we need not rule on the State’s motion for
judicial notice of the docketing information and charging documents in a
separate action involving informant’s passenger and arising from the August
2010 traffic stop.


[4] 
The majority claims that the question defendant was not permitted to ask—“You thought
she couldn’t cooperate in this investigation honestly and truthfully?”—was
“virtually indistinguishable” from a question regarding informant’s character
for truthfulness.  Ante, ¶¶ 31-32 & n.2.  Nothing could be
further from the truth, as defendant’s question was rooted exclusively in the informant’s
conduct on a specific occasion, and in Detective LaChance’s decision to
terminate her because she “couldn’t cooperate in this investigation
honestly and truthfully” based on that specific incident.  
 
Moreover, the majority claims that even if the
excluded question related to informant’s specific conduct, it would
nevertheless be admissible under Rule 608(b)(2) as evidence of specific conduct
used to impeach the testimony given by a witness on cross-examination regarding
another witness’s character for truthfulness or untruthfulness.  In short, the
majority essentially contends that Detective LaChance opened the door by “vouching”
for the informant’s credibility on direct examination, so that it was fair game
for defendant to impeach his testimony with specific instances of conduct on
cross-examination.  Ante, ¶ 32.  However, it is a stretch to say
that Detective LaChance vouched for informant’s credibility.  The direct
examination contains a brief exchange where, in response to the State’s
question about whether the requirement that the informant sign a cooperation
agreement means law enforcement does not trust her, Detective LaChance answered
“I wouldn’t have worked with her [if I didn’t trust her].”  This statement was
elicited, not volunteered, and solely related to whether he trusted the
informant while he worked with her—at the time of the controlled buy.  Such a
statement, without more, is hardly a resounding endorsement of the informant’s
credibility in general, and in fact, the jury could easily infer that Detective
LaChance no longer trusted her by virtue of the fact that he terminated her
agreement several weeks later.           


