









2014 VT 122










State v. Groce (2012-479)
 
2014 VT 122
 
[Filed 14-Nov-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 122



 



No. 2012-479



 



State of Vermont


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Rutland Unit,




 


Criminal Division




 


 




Neiman W. Groce


May Term, 2014




 


 




 


 




Cortland
  Corsones, J.




 



Kevin R. Klamm, Rutland County Deputy State’s Attorney,
Rutland, and John R. Treadwell,
  Assistant Attorney General, Montpelier, for
Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Marshall Pahl,
Appellate Defender, Montpelier, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.[1]
 
¶ 1.            
REIBER, C.J.   Defendant appeals his conviction for
sexual assault following a jury trial in Rutland Superior Court on May 22-24,
2012.  On appeal, defendant argues that (1) the trial court erred by
allowing certain hearsay testimony to be considered by the jury; (2) the trial
court erred in scheduling a six-day delay between jury selection and trial
without obtaining a waiver from defendant; and (3) the State’s use of
inflammatory language and arguments regarding complainant’s character during
closing arguments was plain error.  We reverse defendant’s conviction and
remand for a new trial on the first ground without reaching defendant’s other
arguments.
¶ 2.            
Defendant was charged with sexual assault under 13 V.S.A.
§ 3252(a)(1) on October 15, 2008.  At a hearing on March 27, 2012,
the trial was set for May 22-24.
¶ 3.            
At trial, complainant testified that on July 28, 2008, she went out in
downtown Rutland with friends, including her boyfriend, Jason Poljacik. 
She consumed approximately six drinks and admitted to being intoxicated. 
Eventually, complainant arrived at a party of ten to twelve people, including
defendant, at the house of Nate Barrett and Nathan Cook.  Earlier that
night, Poljacik separated from the group to socialize with other friends,
arriving at the party after the others, which “frustrated and irritated”
complainant.  After Poljacik arrived, they decided that she would spend
the night at the friend’s house and that Poljacik would walk to the home they
shared in Mendon so that they could get “a little bit of space” before talking
things over in the morning.
¶ 4.            
Shortly after Poljacik left, complainant went to Barrett’s bedroom and
made calls to a girlfriend, then to Poljacik.  She testified that they
both acknowledged that they had been drinking and making bad decisions,
apologized and said they loved each other, and promised to talk about it in the
morning.  Complainant then fell asleep on the floor next to the bed. 
She awoke to an unknown person performing oral sex on her.  Disoriented
from being awakened, she told the unknown person to stop several times. 
The person then rolled her onto her back, and initiated sexual intercourse.
 Complainant continued to say stop, pushed the person off and ran out of
the room.  At this point, she was still wearing the same t-shirt and skirt
she had been wearing earlier that evening.  When she stood up, she
recognized the perpetrator as defendant, whom she claimed to have met earlier
that evening.  Using vulgar terms, defendant stated to complainant that he
had enjoyed himself.
¶ 5.            
Complainant made her way to Cook’s bedroom, where he was sleeping. 
According to complainant, defendant chased after her and tried to follow her
into Cook’s room, but she shut the door to keep him out.  Complainant
unsuccessfully attempted to wake Cook by calling his name several times, then went
downstairs before collapsing in front of her roommate and Barrett.  She
was very emotional and told them that “he had his fingers in me,” although she
did not recall whether she said she was raped.  She took a shower, still
fully dressed. Her roommate and Barrett then drove her home and told Poljacik
what had happened.  Poljacik called the police to report the crime, and
then took complainant to the police station and the hospital for an
examination.
¶ 6.            
Barrett testified that he checked on complainant several times while she
was in his bedroom before the incident.  The first time, she was on the
phone with Poljacik. The second time, complainant was sleeping on the floor
next to the bed, and he moved her onto his bed.  When Barrett checked on
complainant for a third time he found defendant, whom he had met for the first
time that night, lying in bed with her.  He moved defendant to the
unoccupied room of a third roommate.  Barrett was annoyed with defendant
but thought defendant was merely looking for a place to sleep—defendant was
apologetic and said he had been looking for a place to “pass out.” 
Barrett testified that defendant seemed to be awake, but was acting tired,
groggy, and possibly drunk.  Barrett returned to the downstairs porch, and
approximately twenty minutes later, complainant appeared.  She was
hysterical, crying uncontrollably, hyperventilating, and, although having
trouble speaking, said, “he had his fingers in me.”  Barrett talked to
defendant, who denied wrongdoing and claimed that complainant had consensual
oral sex with him.       
¶ 7.            
Poljacik then testified for the State.  He confirmed that
complainant was upset with him for separating earlier that night, that he had
left complainant at the house party for the night, and that they had made up
when she called him.  He described complainant as hysterical when she
arrived home, and he took her to the hospital.
¶ 8.            
On cross-examination, Poljacik testified that he had a phone
conversation with Cook the day after the incident.  Cook was good friends
with both Poljacik and defendant, and Poljacik was upset with Cook as a result
of the incident.  Responding to defendant’s questions, Poljacik stated
that Cook had told him that Cook did not believe complainant had entered his
room the night of the incident.  The State did not object to this
testimony.  On redirect, Poljacik testified:  
[Prosecutor]
Did Nate Cook in that same telephone conversation indicate to you that he was
angry at Neiman Groce?
[Poljacik]
Yes, he did. 
[Prosecutor]
Did he indicate to you that he thought Neiman Groce could have probably done
it?
[Poljacik]
Yes, he did.
 
¶ 9.            
  The defense objected to these answers on hearsay and
relevance grounds.  The court overruled defendant’s objections, stating
that defendant had “opened the door” by eliciting other hearsay statements from
the same phone conversation.  Prompted to answer the question a second
time, Poljacik responded that “[Cook] thought that it was not beyond the realm
of possibility that [defendant] had done this.”
¶ 10.        
Defendant then presented his case, claiming the incident was a
consensual sexual encounter.  Defendant argued that complainant’s fight
with her boyfriend that night motivated her to have consensual sex with
defendant.  Defendant took the stand and testified that he witnessed
complainant using cocaine that night.  Defendant also presented expert
testimony from a forensic toxicologist that analysis of complainant’s urine
sample showed that she had used cocaine within two to four days of the
incident, although they could not determine the specific day.  The expert
testified that cocaine use can cause an increased interest in sex, as well as
paranoia and delusional thinking, and that alcohol use in conjunction with
cocaine intensifies the cocaine high.  The defense also highlighted
inconsistencies in complainant’s story, such as defendant’s testimony that he
had met complainant for the first time the previous summer and not that night;
Cook’s testimony that he did not see complainant enter his room that night; and
the lack of physical evidence corroborating complainant’s story.  Finally,
defendant argued that the State’s witnesses were predisposed to support complainant’s
story because they were her friends or romantic partner.
¶ 11.        
During the State’s rebuttal, the prosecutor claimed that the defense had
presented a version of events which, to be believable, required the jury to conclude
that complainant “would go off and be a slut.”  The State argued as
follows:
Much
was made of the fight [between complainant and her boyfriend]. There had to be
a fight. There was, but that had—that importance has to be elevated [by
defendant]. Why? Because it provides a reason for this woman to be angry at her
boyfriend so that she would go off and be a slut. Is there evidence of this
second path of that chain? She was not angry with her boyfriend when she fell
asleep. She was happy with her boyfriend when she fell
asleep. . . . There was no reason for [complainant] to want
to have sex with Mr. Groce. There was, however, a reason for Mr. Groce to want
to have sex with [complainant].
 
¶ 12.        
The jury spent several hours deliberating before indicating that they
were hung.  The court asked the jury to continue deliberating.  Two
hours later the jury returned a verdict of guilty.  Defendant appeals.
¶ 13.        
Defendant first argues that the trial court erred by permitting the
State to elicit Cook’s statement that “it was not beyond the realm of
possibility that [defendant] had done this” through Poljacik’s hearsay
testimony on redirect examination.  We review the trial court’s
evidentiary rulings for abuse of discretion.  State v. Gemler, 2004
VT 3, ¶ 11, 176 Vt. 257, 844 A.2d 757.  At trial, defendant objected
to the admission of Poljacik’s testimony on hearsay and relevance
grounds.  The trial court admitted the testimony on the theory that
defendant had “opened the door” by eliciting other hearsay statements from
Poljacik and Cook’s telephone conversation during Poljacik’s cross examination.
 These statements pertained to how the incident affected Poljacik and
Cook’s friendship, and to Cook’s recollection of whether complainant entered
his room the night of the incident.
¶ 14.        
Under the “open-door” doctrine, also known as the doctrine of invited
error or curative admissibility, a party’s use of evidence to create an
incomplete or misleading picture opens the door so that the opposing side may,
in the court’s discretion, use otherwise-inadmissible evidence to “complete the
picture with appropriate detail.”  See State v. Malshuk, 2004 VT
54, ¶ 14, 177 Vt. 475, 857 A.2d 282
(mem.); see also United States v. Martinez, 988 F.2d 685, 702 (7th Cir.
1993) (explaining that “where a proponent introduces
inadmissible evidence, a court may permit the opponent to introduce similarly
inadmissible evidence in rebuttal or engage in otherwise-improper
cross-examination”).  This doctrine
“recognizes that evidence that may be inadmissible for the prohibited purpose
may be admitted for other permissible purposes.”  State
v. Recor, 150 Vt. 40, 44, 549 A.2d 1382, 1386 (1988).  The doctrine is not, however, an invitation to admit
all nominally related information as evidence.  The open-door doctrine
“should be applied only to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original evidence.”  State
v. Percy, 146 Vt. 475, 482, 507 A.2d 955, 959 (1986) (quotation omitted); see also Martinez, 988 F.2d at 702 (holding
that only evidence necessary to rebut misleading statements and to “neutralize or cure any prejudice” created by the “incomplete picture” is admissible); State v. Batchelor, 135 Vt. 366, 369, 376 A.2d 737,
740 (1977) (stating that open-door doctrine is not tool for
“prosecutorial ‘over-kill’ ”).  
¶ 15.        
The State argues that admission of Poljacik’s statement on redirect was
necessary to correct the inaccurate impression defendant portrayed by asking
only about aspects of the telephone call favorable to the defense—Cook’s memory
of events that contradicted complainant’s testimony—while leaving out
unfavorable information from the same conversation, including Cook’s opinion
that defendant may actually have been capable of committing the assault. 
The State cites several of our cases for the proposition that a defendant
“should not benefit from a selective presentation of the facts on
cross-examination.”   Recor, 150 Vt. at 45, 549
A.2d at 1386; see also Malshuk, 2004 VT 54, ¶ 14; State v.
Crannell, 170 Vt. 387, 406, 750 A.2d 1002, 1017-18 (2000), overruled on
other grounds by State v. Brillon, 2008 VT 35, 183 Vt. 475, 455 A.2d
1108.  The common thread in each of these cases is that one of the parties
deliberately elicited testimony presenting a misleading picture of the facts.
 The court then allowed the opposing party to elicit other inadmissible
evidence, such as the defendant’s prior bad acts, but only for the limited
purpose of rebutting the inaccurate portrayal.  See, e.g., Malshuk,
2004 VT 54, ¶ 13 (holding that questions regarding witness’s prior
verbal outburst at defendant opened door for State to inquire about defendant’s
prior history of assaults against witness on basis that “[c]ross-examining an
alleged victim as to why they don’t like a person or has ill will toward a
person opens the door for an explanation of why” (quotation omitted)); Crannell,
170 Vt. at 404-05, 750 A.2d at 1016-17 (holding that the court properly allowed
witness to disclose that defendant had admitted to car bombing only after
defendant tried to show it was unreasonable for witness to fear defendant); Recor,
150 Vt. at 45, 549 A.2d at 1386 (holding that testimony regarding
defendant’s past abuse of witness was admissible because “once the issue of why
the complaining witness disliked the defendant was raised on cross examination,
it was proper for the State to present a complete picture for the jury”).

¶ 16.        
There are two significant differences between the cases cited by the
State and the facts of this case.  First, defendant’s questions here did
not present a misleading depiction of the facts.  See Percy, 146
Vt. at 482, 507 A.2d at 959 (stating the open-door doctrine should be used only
to remove “unfair prejudice” from original evidence).  Defendant
questioned Poljacik about how the incident had affected their friendship, and
Poljacik explained that he was angry at Cook during the conversation, but that
they eventually were able to resume being friends.  Defendant then asked
the specific question of whether Cook had told Poljacik that complainant had
entered his room on the night of the incident.  This
question was intended to thwart the State’s attempt to portray Cook as lacking
any memory of the incident, and to impeach complainant’s version of events,
which included a visit to the friend’s room.  Though these facts
were favorable to the defense’s case, they were not misleading—they merely
conveyed Poljacik’s view of the state of their friendship and Cook’s perspective
on the events that happened that night, which clashed with complainant’s
version. 
¶ 17.        
Second, even if defendant painted a misleading picture of events, the
admission of Poljacik’s statements did not serve to rebut defendant’s
portrayal.  “Since the purpose of the [open-door] rule is to allow the
other party to explain or meet the evidence which was improperly admitted, it
should be applied only to the extent necessary to remove any unfair prejudice
which might otherwise have ensued from the original evidence.”  Id.
at 482, 507 A.2d at 959 (quotation omitted).  Here, the State’s question went far beyond the limited issues
probed by the defendant on cross-examination regarding Poljacik’s conversation
with Cook—the state of their friendship and one specific detail about the
friend’s memory of the night of the incident—to ask about the friend’s view of
the ultimate issue: defendant’s guilt.  Cook’s speculative opinion
regarding the ultimate issue in the case, defendant’s guilt, was inapposite to
the specific issues raised on cross-examination.  Contrary
to the State’s contention, the mere fact that the inadmissible hearsay
statements were made during the same conversation as the statements elicited on
cross-examination does not, without more, serve to cure their
inadmissibility.  Martinez, 988 F.2d at 702 (explaining that
open-door doctrine does not “justify receipt of rebuttal evidence merely
because it is in the same category of excludable evidence as the evidence
previously offered”); see also Batchelor, 135 Vt. at 369, 376 A.2d at 740 (holding that it was error
for court to admit evidence of defendant’s prior offenses to show reason for
witness’s bias against defendant, because evidence merely showed defendant’s
tendency to commit similar offenses and did not actually rebut defendant’s
allegation of bias).  Since defendant’s
questions did not mislead, and the State did not attempt to rebut defendant’s
questions, there was no open door for the testimony elicited by the State on
redirect, and its admission was error.[2]
¶ 18.        
Since it was error for the court to admit the testimony, we must
determine whether the error requires reversal of defendant’s conviction.  The State argues for review under a plain error standard
because, although defendant objected at trial, he did not request a limiting
instruction.  Contrary to the State’s argument, such an exacting request
is not required.  Rather, defendant’s “timely, specific objections when
the issues were raised” were sufficient to preserve the objections for appeal.
 State v. Fisher, 167 Vt. 36, 43, 702 A.2d 41, 46 (1997) (holding
that objection was not preserved where defendant failed to object at time issue
was raised and then only objected generally to line of questioning without
naming specific grounds); see V.R.E. 103(a)(1).  Because defendant contemporaneously objected to the trial
court’s admission of the evidence, we will review for harmless error.  V.R.Cr.P.
52(a).  (“Any error, defect, irregularity
or variance which does not affect substantial rights shall be disregarded.”).
¶ 19.        
An error is harmless if, without considering the offending evidence,
there is still overwhelming evidence to support the conviction” and “the evidence
at issue did not in any way contribute to the conviction.”  State v.
Shores, 143 Vt. 224, 228, 465 A.2d 269, 271 (1983); see also State v. Williams, 2010 VT
83, ¶ 35, 188 Vt. 413, 8 A.3d 1053 (“Error is harmless if we can say
beyond a reasonable doubt that the jury would have convicted absent the
error.”).  In making this determination, “[t]he two most important factors
are (1) ‘the strength of the prosecution’s case without the offending evidence’
and (2) ‘the strength of the offending evidence.’ ”  Williams,
2010 VT 83, ¶ 35 (quoting State v. Lipka, 174 Vt. 377, 385, 817
A.2d 27, 34 (2002)).  Other factors we consider are “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.”  Id. (quoting State
v. Mumley, 2009 VT 48, ¶ 20, 186 Vt. 52, 978 A.2d 6). 
¶ 20.        
Based on these factors, we conclude that the error was not
harmless.  Witness statements played a substantial role in supporting the
jury verdict, making witness credibility of paramount importance.  We
addressed the importance of witness credibility in Lipka.  We held
in that case that admission of evidence regarding prior sexual assaults to show
that defendant’s contact with the complainant was not accidental was
erroneous.  Lipka, 174 Vt. at 397, 817 A.2d at 44.  The error
was not harmless because there was no physical evidence connecting the
defendant to the assault, and the outcome depended in substantial
part on the jury’s determinations as to witness credibility.  Id.
at 384-89, 817 A.2d at 34-37.  Given these circumstances, the erroneous
testimony with the potential to make one side more believable than the other
was not harmless given “defendant’s presumption of innocence [and] the State’s
high burden of proof.”  Id. at 387, 817 A.2d at 36 (quoting State
v. Lynds, 158 Vt. 37, 43, 605 A.2d 501, 503 (1991)).
¶ 21.        
Although other witnesses testified as to events immediately before and
after the incident, only defendant and complainant testified as to what
happened during the alleged sexual encounter.  See State v. Brillon,
2010 VT 25, ¶ 21, 187 Vt. 444, 995 A.2d 557 (holding that erroneous admission
of evidence was not harmless because “[a]lthough other witnesses testified to
events that occurred before and after the actual altercation, only defendant
and [the complainant] testified as to what occurred [during the
incident]”).  Without more, this evidence is not strong enough to conclude
that the jury would have convicted beyond a reasonable doubt without the
erroneously admitted hearsay evidence.  See Lipka, 174 Vt.
at 387, 817 A.2d at 36 (“Given that the only direct evidence of the sexual
abuse came from [the complainant], we do not believe that the alignment of the
supporting witnesses can be determinative under the high standard for harmless
error.”).    
¶ 22.        
The strength of the offending evidence also weighs against a finding of
harmless error.   Cook’s hearsay statements have little probative
strength because his speculative belief that the defendant could possibly
commit the assault is not determinative of whether defendant actually committed
the assault.  Reporter’s Notes, V.R.E. 401 (evidence has probative value
if it has “any tendency to establish (or refute)
the proposition”).  On the other hand, the testimony was highly
prejudicial. The evidence was inculpatory because it went directly to the
ultimate issue of defendant’s guilt—it was not peripheral, but rather went to
the very heart of the State’s case.  Moreover, the offending testimony was
prominently featured in the trial, as the jury heard that Cook—defendant’s
friend—thought that defendant could have committed the assault before Cook even
testified.  Poljacik was asked to restate Cook’s statements a second time
following defendant’s objection, further reinforcing the point to the
jury.  Finally, the evidence was not cumulative or duplicative because the
content was not repeated or echoed by any other testimony or evidence at trial.
 Cf. State v. Burgess, 2007 VT 18, ¶ 9, 181 Vt. 336, 917 A.2d 528
(2007) (holding erroneous evidence was harmless because it was “merely
cumulative” having been repeated by other witnesses during trial).  
¶ 23.         Finally,
the fact that the trial nearly resulted in a hung jury, with the court
prompting the jurors to continue deliberating before reaching a verdict,
suggests the error may have impacted the jury verdict.  Given how close
the verdict was, we cannot conclude beyond a reasonable doubt that the same
verdict would have been reached if the erroneous evidence had been excluded.
 See State v. Winter, 162 Vt. 388, 401, 648 A.2d 624, 632 (1994)
(“In view of the jury’s split verdict, we
cannot say [the error] was harmless.”); State v. Giroux, 151 Vt.
361, 365, 561 A.2d 403, 406 (1989) (“The error here cannot be deemed harmless.
The jury deliberated nearly seven hours in this case where the evidence of
guilt was not overwhelming.”).  
¶ 24.        
Because this error alone requires reversal and remand for a new trial,
we do not reach defendant’s other arguments.  Although we do not decide
the case on these grounds, however, we would be remiss not to mention the
offensive language—namely, the use of the term “slut”—used by the State during closing
argument.  We should not need to remind the state’s attorney’s office that
this word has no place in the Vermont courts.  Moreover, the argument
underlying the State’s use of the term was misleading and inaccurate. 
From our reading of the transcript, defendant did not improperly malign
complainant’s character: the State did, by drawing sexist
inferences—that, if the encounter was consensual and motivated by complainant’s
fight with her boyfriend, then she must be a “slut”—from defendant’s
version of the facts.  It has long been improper for defendants on sexual
assault charges to characterize complaining witnesses in these terms.  The
State was on abundant notice that its argument was equally improper. 
Reversed and remanded for a new trial.
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Chief
  Justice



 







[1] 
Justice Crawford was present for oral argument, but did not participate in this
decision.


[2] 
Although not necessary to reach this conclusion, we have doubts as to whether the substance of Cook’s statements that he
thought defendant could have committed the assault would have been admissible
even if they had not been hearsay but rather testified to at trial by the
declarant.  First, the testimony speaks to defendant’s character, and is
not admissible as proof that defendant acted in conformity with that trait on a
particular occasion.  V.R.E. 404(a)(1).  Second, Cook’s statement as
to whether he thought defendant could have done it was speculative and not
based on any personal knowledge Cook possessed as to defendant’s actions on the
night of the incident.  See V.R.E. 602 (requiring lay-witness testimony to
be supported by evidence showing “personal knowledge of the matter”).
 Finally, even if relevant, the statement was highly prejudicial, as it
went to the ultimate issue to be determined by the jury—defendant’s
guilt.  Given that the statement’s probative value was tenuous at best, it
would likely not survive the Rule 403 balancing test for admission.



