State v. Franklin

2005 VT 90, 883 A.2d 783, 179 Vt. 521, 2005 Vt. LEXIS 232
CourtSupreme Court of Vermont
DecidedAugust 2, 2005
DocketNo. 03-280
StatusPublished
Cited by3 cases

This text of 2005 VT 90 (State v. Franklin) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Franklin, 2005 VT 90, 883 A.2d 783, 179 Vt. 521, 2005 Vt. LEXIS 232 (Vt. 2005).

Opinion

¶ 1. Defendant, Lynda Franklin, was convicted of perjury pursuant to 13 V.S.A. § 2901 based on her testimony given during a prior prosecution for driving while intoxicated (DWI), that she had not operated a vehicle while she was intoxicated. Defendant appeals, and we affirm.

¶ 2. Defendant and Garth Ely were living together when police responded to Ely’s telephone call informing police that defendant was drunk and had driven a vehicle while intoxicated. That day, Ely gave a statement to the police that defendant drove a truck to her parent’s house. Three criminal proceedings arose out of this one incident. First, the State charged defendant with DWI. During the DWI trial, the State asked defendant if she had operated the vehicle on that day. She answered, “No I did not. I didn’t operate it.” Contrary to statements he gave earlier, Ely testified during defendant’s DWI trial that defendant had not operated the vehicle.

¶ 3. Second, Ely was charged with and convicted of perjury based on the statement he made during defendant’s DWI trial. This charge resulted from an investigation of a domestic assault complaint made by defendant against Ely. During the investigation, a police officer videotaped Ely making a statement concerning the facts surrounding the DWI charge against defendant. Ely’s statement conflicted with his testimony at defendant’s DWI trial, and resulted in his conviction.

¶ 4. Third, the State charged defendant with perjury, and she was convicted. Defendant appeals her perjury conviction, which was based on her testimony during the DWI prosecution where she denied operating a vehicle.

¶ 5. Defendant argues on appeal that: (1) it was plain error to admit Ely’s h> court testimony, Ely’s videotaped statement, and Ely’s perjury conviction; (2) without Ely’s testimony, insufficient evidence existed to convict defendant of perjury; and (3) the court committed reversible error when it did not rule on defendant’s motion for judgment of acquittal at the close of the State’s case.

¶ 6. At trial, defendant failed to object to the admission of Ely’s testimony. As a result, we review for plain error only. Plain error occurs when there is glaring error so grave that it strikes at the very heart of defendant’s constitutional rights or it affects the fair administration of justice. State v. Oscarson, 2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337; State v. Ladabouche, 146 Vt. 279, 281, 502 A.2d 852, 854 (1985). To reverse for plain error, we must find not only that the error seriously affected defendant’s substantial rights, but also that it had an unfair prejudicial impact on the jury’s deliberations. Oscarson, 2004 VT 4, ¶ 27; State v. Mears, 170 Vt. 336, 341, 749 A.2d 600, 604-05 (2000).

¶ 7. In the present perjury case against defendant for lying under oath during her DWI trial, the State introduced Ely’s perjury conviction, Ely’s in-court testimony regarding defendant’s operation of the vehicle, and Ely’s statements given [522]*522during a videotaped interview with a police officer.

¶ 8. The trial court properly admitted Ely’s perjury conviction of February 25, 2002. Section 2907 of Title 13 prohibits a court from receiving “[t]he oath of a person convicted of perjury ... in a proceeding in court.” Contrary to defendant’s argument, § 2907 does not require exclusion of evidence of a perjury conviction because its admission does not depend upon the perjurer’s oath.

¶ 9. The trial court erred, however, by admitting Ely’s in-court testimony because earlier Ely had been convicted of perjury for statements he made during defendant’s DWI trial. He was, therefore, not a competent witness under § 2907. He was also incompetent to testify pursuant to 12 V.S.A. § 1608, which states that a person convicted of perjury is incompetent to testify in court. Consequently, the court was not permitted to accept his oath.

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Bluebook (online)
2005 VT 90, 883 A.2d 783, 179 Vt. 521, 2005 Vt. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-franklin-vt-2005.