State v. Boivin

575 A.2d 203, 154 Vt. 339, 1990 Vt. LEXIS 72

• Court: Supreme Court of Vermont
• Decided: May 11, 1990
• Docket: No. 87-577
• Status: Published

Opinions

Barney, CJ. (Ret.),

Specially Assigned. The defendant contends that evidence relevant to his defense was erroneously excluded, resulting in his conviction of unlawful mischief for vandalizing a truck. We reverse and remand for a new trial.

A witness for the State, nephew of the owner of the truck, testified that at about three o’clock on a certain afternoon the defendant was seen walking around and apparently touching the truck as it sat in the parking lot of an apartment house in Winooski, Vermont. Later that day, the owner of the truck examined it and found scratches all over it, particularly on the cab, and found that rocks had been thrown inside. The damage was estimated to be about $1,800. A witness stated that sometime after 3:00 p.m. the defendant was seen entering a light blue car and driving away.

The defendant lived in the apartment house, and his quarters were no more than thirty feet from the parking lot. He offered testimony that he walked through the lot at about the time he was said to have been seen there, accompanied by witnesses who would state that he never touched the truck. He then proposed to prove, by his own testimony and that of others, that he had gone to the apartment where he had remained all afternoon.

This last evidence was held by the trial court to constitute an attempt to prove an alibi within the terms of V.R.Cr.P. 12.1, and therefore was excluded under V.R.Cr.P. 12.1(e) for failure to comply with the notice requirements of V.R.Cr.P. 12.1(a).

The immediate question, duly raised by the defendant, is whether such evidence in fact constitutes “alibi” evidence. In the law, “alibi” evidence relates to defendant’s claim that he was at a place so removed from the scene of the crime that it rendered his participation improbable, if not impossible. State v. Ovitt, 126 Vt. 320, 327, 229 A.2d 237, 242 (1967). In view of the burden of proof imposed on the State in criminal cases, claims of distance first raised at trial are so unpredictable and subject to such manipulation that the law has compensated by imposing a burden of notice on the defendant.

This was not a case where special notice to the State was required, however. Defendant did not claim he was not at the scene of the crime when a witness for the State said it was committed, at three o’clock. If the State should claim the crime was committed later in the afternoon, the evidence undeniably placed the defendant no further than thirty feet from the scene of the vandalism. This situation closely parallels that in State v. Ovitt, 126 Vt. at 327-28, 229 A.2d at 242. We echo the comment there that the facts do not support the application of the alibi exclusion. This is particularly so in light of the fact that the witnesses involved had b.een timely identified to the prosecution.

Moreover, as part of its case, the prosecution presented testimony in which a witness claimed to have seen the defendant leave the apartment at a time when the vandalism could have happened, after three o’clock. Defendant’s attempt to refute this claimed departure was likewise excluded by the court as part of his “alibi” evidence. Since defendant’s evidence was tendered in order to refute testimony regarding a particular location put in issue by the State, its exclusion was error, and a retrial is required.

That being so, and the likelihood that the other claimed errors will not recur on retrial being high, we need not treat them here.

The verdict and judgment of guilty are set aside and the cause is remanded for a new trial.