State v. Heath

649 A.2d 243, 162 Vt. 618, 1994 Vt. LEXIS 97

• Court: Supreme Court of Vermont
• Decided: August 11, 1994
• Docket: No. 92-126
• Status: Published

Opinions

The assault occurred after the victim left a bar in Newport and was sitting along the shore of Lake Memphremagog. Her attackers pulled her to the ground and one penetrated her vagina with his penis. The assault was discontinued because of an approaching vehicle. After showering at the home of a friend, the victim reported the assault to the police. An examination of the victim was done at North Country Hospital. Bodily fluids and hair samples were taken for laboratory analysis. Also taken were the clothes she was wearing at the time of the assault. Examination of the victim’s underpants turned up an unidentified foreign hair sample. The victim later identified defendant as her assailant.

Because the State believed that physical evidence would help in building its case against defendant, the State sought and obtained a nontestimonial identification order for defendant to produce samples of bodily fluids and hair. The samples were produced on November 4,1990. The analysis of the bodily fluids by the state lab was inconclusive, as was the DNA analysis by the Federal Bureau of Investigation (FBI).

The analysis of the hair sample from the victim’s clothing was on a different track. It, along with hair samples from defendant, was sent to the FBI in January 1991. Despite a series of discovery motions by defendant, the FBI analysis was not provided to defendant by the date of trial, June 26,1991. Consequently, defendant filed a new motion to compel production of the analysis on the eve of trial and a motion for continuance based in part on nondisclosure of the FBI analysis. The court failed to rule on the motion to compel and denied the motion for continuance.

At trial, defendant argued that the victim misidentified him as the assailant. The jury rejected this theory and returned a guilty verdict on June 27,1991. After the trial was concluded, an FBI lab report, dated June 24,1991, was received and provided to defendant. The report concluded that the defendant’s hair samples did not match the hair found in the victim’s underpants.

Defendant filed a motion for a new trial based on the State’s failure to provide the FBI report. Analyzing defendant’s claim for a new trial as based on newly discovered evidence, the trial court held that defendant failed to sustain his burden of showing that the FBI hair analysis probably would have changed the result of the trial. On appeal, defendant argues that he need not make such a showing under the circumstances. We agree.

Criminal Rule 33 authorizes the grant of a new trial “if required in the interests of justice.” The standard is intentionally broad so that the courts can ensure that trials are fair without necessarily having to pigeonhole the grounds into narrow and specific findings of error. See United, States v. Narciso, 446 F. Supp. 252, 304 (E.D. Mich. 1977) (wording of rule “mandate[s] the broadest inquiry into the nature of the challenged proceeding”); State v. Talbot, 408 So. 2d 861, 887 (La. 1980) (in ruling on new trial motion, court is not confronted with “narrow, merely technical, question”). Thus, the court can grant a new trial when it “has any doubt about the fairness or impartiality of a trial.” Sterling v. State, 791 S.W.2d 274, 276 (Tex. Ct. App. 1990). Grant of a new trial can be warranted by the cumulative effect of numerous concerns, no one of which can be characterized as reversible error, when the court is convinced that a miscarriage of justice ensued. See Collins v. State, 423 So. 2d 516, 518 (Fla. Dist. Ct. App. 1982).

The normal remedy for failure of the State to meet a discovery obligation is a continuance until defendant can receive the discovered material and prepare a case in response to it. See V.R.Cr.P. 16.2(g)(1). This Court has long held that a criminal defendant “is entitled to a reasonable opportunity to procure and present the witnesses necessary to his defense, including a postponement of his trial, if need be.” State v. Maguire, 100 Vt. 476, 480, 138 A. 741, 743 (1927). Failure to provide a continuance when the State fails to fulfill a discovery obligation is reversible error if defendant demonstrates resulting prejudice. See State v. Evans, 134 Vt. 189, 192, 353 A.2d 363, 365 (1976). The FBI laboratory analysis is exactly the kind of evidence needed to prepare a proper case. See State v. Stroud, 459 N.W.2d 332, 335 (Minn. Ct. App. 1990) (reversible error to deny prosecution continuance to obtain FBI DNA analysis when victim unable to give more than general description of her attacker); Lomax v. Commonwealth, 319 S.E.2d 763, 764-66 (Va. 1984) (when state produced critical lab report at trial, defendant entitled to continuance to investigate and evaluate evidence).

Defendant was prejudiced by the denial of the continuance. The evidence was relevant and exculpatory. Defendant’s theory that another person committed the assault was supported by the fact that the unidentified hair sample from the victim’s underpants did not match the sample given by defendant. Only a short delay was necessary to secure the lab analysis.

Although the trial court has discretion in determining whether to grant a continuance and a new trial, there was no exercise of discretion in this case. The trial court failed to respond to the motion to compel and ignored the absence of important evidence, denying the motion to continue only because a trial date had been set. A new trial is required in the interests of justice.

Defendant has also argued on appeal that a statement given by him at the police station should have been suppressed because he was given no opportunity to consult with an adult as required by In re E.T.C., 141 Vt. 375, 379, 449 A.2d 937, 940 (1982). The issue was not preserved below, and we do not consider it. See State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330, 333 (1987).

Reversed and remanded.