State v. Marcy

680 A.2d 76, 165 Vt. 89, 1996 Vt. LEXIS 41

• Court: Supreme Court of Vermont
• Decided: March 22, 1996
• Docket: 94-173
• Status: Published

Opinions

Johnson, J.

Defendant appeals his conviction by jury for simple assault. He argues that the trial court erred by (1) admitting the assault victim’s tape-recorded statement as past recollection recorded, pursuant to V.R.E. 803(5), and (2) denying defendant’s motion for judgment of acquittal pursuant to V.R.Cr.R 29, because the sole evidence supporting defendant’s conviction is past recollection recorded, which defendant argues does not meet the standards for reliability set out by this Court in State v. Robar, 157 Vt. 387, 395, 601 A.2d 1376, 1380 (1991). We affirm the trial court, holding that the tape-recorded statement of the victim was properly admitted as past recollection recorded and that the victim’s statement was sufficiently reliable to support the conviction.

I.

The victim was defendant’s wife. Following the assault on December 28,1992, the victim obtained a restraining order against defendant. On December 29,1992, the day after the assault, a police officer went to the victim’s home in response to her complaint against defendant. The victim told the officer that she had been assaulted by defendant, who had “pounded her head against a door” and “choked her to the point where she nearly blacked out,” and that he had damaged several guns. At the time of the interview, the officer observed scratches on the victim’s face, which she claimed were the result of the physical confrontation with defendant. The officer also interviewed two other residents of the house. One of those residents stated that he had seen defendant and his wife enter their bedroom, that he had heard shouting, including the victim saying, “Don’t do it, please don’t do this,” and that he had heard noises coming from the bedroom, including a banging against the door. The other resident stated only that he had heard an argument inside the house.

After speaking with these three people, the police officer tape-recorded an interview with the victim, which the officer testified was consistent with what the victim had told him earlier. The officer also testified that the victim appeared to be alert and to understand what she was doing while he was tape-recording the interview, and that she showed no indication that she was having trouble remembering the events of the previous night.

At trial, the victim testified that she did not remember the assault. She maintained that she only could remember visiting a psychiatrist’s office with defendant, who left the office without her, returning home afterward, and following defendant into the bedroom to find out what had upset him. She vaguely recalled something about guns being broken, but could not remember the details. She testified that she remembered getting a restraining order on December 28, but she did not remember how she got to the police station. She also remembered that a trooper had come to her home, but she did not remember calling the police, and she did not remember being choked by defendant.

The State then offered the victim’s tape-recorded statement pursuant to V.R.E. 803(5), as past recollection recorded. The State called several witnesses (out of the presence of the jury), including the victim, the police officer who took the statement, and a victim advocate with whom the victim had spoken, to lay a foundation for the admission of the statement. The court found that the statement satisfied the requirements of Rule 803(5).

II.

We first consider whether the trial court properly admitted the victim’s tape-recorded statement, pursuant to V.R.E. 803(5), as past recollection recorded.¹ Rule 803(5), which is identical to its counterpart in the Federal Rules of Evidence, establishes an exception to the hearsay rule for a previously recorded recollection of an event, when the witness has no present recollection of the event. State v. Lander, 155 Vt. 645, 645, 582 A.2d 128, 128 (1990) (mem.). We have previously held that documents admitted pursuant to V.R.E. 803(5) must meet three requirements:

“(1) The document must pertain to matters about which the declarant once had knowledge; (2) The declarant must now have an insufficient recollection as to such matters; (3) The document must be shown to have been made by the declarant or, if made by one other than the declarant, to have been examined by the declarant and shown to accurately reflect the declarant’s knowledge when the matters were fresh in his memory.”

State v. Paquette, 146 Vt. 1,3,497 A.2d 358, 360 (1985) (quoting People v. Kubasiak, 296 N.W.2d 298, 302 (Mich. Ct. App. 1980)).

Based on the victim’s testimony and the circumstances under which the statement was given, the trial court determined that the first two requirements were easily met. As the victim of the assault, the witness once had knowledge of it, and her tape-recorded statement relates that knowledge in detail. Moreover, the court found that it was “clear and without question[] that the declarant now has insufficient recollection about any matters contained in that tape or . . . concerning] what did or did not happen to her on [the date of the assault].” As the trial court’s findings are supported by the evidence, they are not clearly erroneous and will not be disturbed on appeal. See State v. Zaccaro, 154 Vt. 83, 86, 574 A.2d 1256, 1258 (1990) (noting that trial court’s findings of fact will not be disturbed “unless they are unsupported by the evidence or clearly erroneous”); see also Paquette, 146 Vt. at 4, 497 A.2d at 360 (requirements one and two met under circumstances similar to instant case).

The more difficult question is whether the tape-recorded statement meets the third requirement. To meet this requirement, the statement must pass two separate tests. First, the statement must be shown to have been made by the witness, or if made by another, to have been adopted by the witness. V.R.E. 803(5); see Paquette, 146 Vt. at 4, 497 A.2d at 361 (noting that facts “sufficiently show that the statement was adopted by the witness”) (emphasis added). In this case, the testimony of the police officer who tape-recorded the statement is sufficient to establish that the statement was made by the witness.

Second, the statement must be shown to accurately reflect the witness’s knowledge when the matter was fresh in her memory. Paquette, 146 Vt. at 3, 497 A.2d at 360. Defendant, arguing that the statement should not have been admitted, emphasizes that the statement was not sworn, and that the witness never affirmed the truth or accuracy of the statement when it was made. Defendant misconstrues the requirements of Rule 803(5). Nothing in the language of the rule indicates that, to be admissible, the prior statement must be sworn, or that the witness must affirm the accuracy of the prior statement.

A number of courts have ruled statements inadmissible as past recollection recorded because the statements were not sworn, signed by the witness, or otherwise affirmed by the witness as accurate. Closer examination of those cases reveals, however, that the statements involved were not prepared by the witness, but by another person, usually a law enforcement agent. See, e.g., United States v. Schoenborn, 4 F.3d 1424,1427 (7th Cir. 1993) (noting that witness “did not adopt... as his own” report prepared by FBI agent of interview with witness); People v. Hoffman, 518 N.W.2d 817, 825 (Mich. Ct. App. 1994) (holding that denying admission of police officer’s typewritten notes of witness’s statement was proper where witness never adopted statements as true and accurate); People v. Kubasiak, 296 N.W.2d at 302 (holding that police report of witness’s statement was inadmissible because witness had not adopted report as accurate when matter was fresh in his memory). Understandably, where a prior statement was prepared by a person other than the witness, courts have relied on or even required evidence that the witness had sworn or otherwise affirmed the accuracy of the prepared statement, to satisfy the requirement that the witness adopted the statement.

Here, there is no dispute that the witness herself gave the tape-recorded statement. The question before us is whether the State presented sufficient evidence to show that the tape-recorded statement accurately reflected the witness’s knowledge of the assault. The trial court, in finding the statement admissible, relied upon the following evidence of its accuracy: the statement was given to a police officer within a day of the assault; the tape-recorded statement was made shortly after and was consistent with a prior interview with the police officer; the statement revealed details of the assault; the statement described the events chronologically; the witness spoke coherently, logically, and relatively directly, responding appropriately to questions from the officer; the witness did not appear sleepy or groggy to the officer, despite her later testimony that she was taking prescription drugs at the time the statement was given; and the police officer’s interviews with the other residents of the house provided some corroboration. The trial court also emphasized that the witness never recanted the statement, or indicated that the statement was inaccurate or given involuntarily, but rather testified that if she had talked to a police officer she would have tried to be truthful. Specifically, the witness testified that she would not have “intentionally” or “deliberately” lied to the officer.

Defendant points to two elements of the witness’s testimony as throwing doubt on the accuracy of the statement. The witness testified that she was using prescription drugs at the time the statement was given, which could have affected her thinking. Also, when asked if she could think of any reason why she might have wanted to tell the police officer something that she did not believe to be true at the time, she replied, “Maybe anger.” The trial court judge, who observed the testimony firsthand, found persuasive the police officer’s testimony that the witness spoke clearly and did not appear sleepy or groggy at the time of the statement. The judge also found that the witness had not recanted the statement or “given evidence saying that what she said previously is incorrect.” Again, the court’s findings on these two issues are not clearly erroneous, and will not be disturbed by this Court. See Zaccaro, 154 Vt. at 86, 574 A.2d at 1258.

We agree with the court that, taken together, the evidence presented by the State is sufficient to show that the tape-recorded statement of the witness correctly reflects her knowledge of the assault at the time it was made. In so doing, we adopt the reasoning of the Sixth Circuit, which in interpreting the identical federal rule regarding past recollection recorded recently stated:

Rule 803(5) does not specify any particular method of establishing the knowledge of the declarant nor the accuracy of the statement. It is not a sine qua non of admissibility that the witness actually vouch for the accuracy of the written memorandum. Admissibility is, instead, to be determined on a case-by-case basis upon a consideration ... of factors indicating trustworthiness, or the lack thereof.

United States v. Porter, 986 F.2d 1014, 1017 (6th Cir. 1993). In Porter, the defendant was convicted on several charges involving drugs and explosives. Part of the evidence supporting his convictions was a detailed written statement given by his girlfriend to the FBI. Portions of the statement were read to the jury after the girlfriend testified that she did not remember much about what she had said in the statement, because “she was confused and on drugs at the time the statement was made.” Id. at 1016. She did not testify that the statement was accurate. The trial court found “sufficient indicia of trustworthiness,” including the details contained in the statement, its internal consistency, and its consistency with other evidence. Id. at 1017.²

Here, although the victim did not sign the statement, that factor is much less important because the statement is a tape-recording in the victim’s own voice. The other evidence relied on by the trial court is sufficient to establish the accuracy of the statement. The tape-recorded statement of the victim was properly admitted as past recollection recorded and could be relied upon by the jury.

We do not believe that our holding is inconsistent with our memorandum decision in State v. Lander, 155 Vt. at 645, 582 A.2d at 128, where we held that a witness’s prior statement was not admissible as past recollection recorded. We noted that the witness had not “adopt[ed] his prior statement as his own or aver[red] that the statement accurately reflected his knowledge at the time of its making.”³ Id. Lander, however, is a brief memorandum decision which does not provide the relevant facts of the case. The decision does not indicate, for example, whether the statement was prepared by the witness or by a third party, but merely cites to Kubasiak, 296 N.W.2d at 302, where the court refused to admit a police officer’s report of a witness’s prior statement where the witness had not adopted that report as true.

We are not persuaded that our memorandum decision in Lander should be interpreted as altering the plain language of V.R.E. 803(5) to add a requirement that the witness must testify that the statement accurately reflects the witness’s knowledge at the time the statement was made. Had the drafters intended this result, they could easily have accomplished it by changing the language of the rule. Instead, the rule is phrased in the passive voice, requiring only that the memorandum or record be “shown to have been made or adopted by the witness.” V.R.E. 803(5) (emphasis added). We conclude that the language of the rule contemplates a more flexible case-by-case determination of the admissibility of a statement as past recollection recorded, that evaluates the trustworthiness of the prior statement instead of focusing on hypertechnical evidentiary requirements. See United States v. Williams, 571 F.2d 344, 350 (6th Cir. 1978) (“touchstone for admission of evidence as an exception to the hearsay rule has been the existence of circumstances which attest to its trustworthiness”); see also State v. Discher, 597 A.2d 1336, 1341 (Me. 1991) (past recollection recorded exception does not spell out method for establishing initial knowledge or contemporaneity and accuracy of record, but leaves determination to circumstances of particular case).

III.

We next consider whether the trial court erred in denying defendant’s motion for judgment of acquittal pursuant to V.R.Cr.P. 29. Defendant argues that, even if properly admitted, the victim’s tape-recorded statement was insufficient evidence to sustain a conviction. “The standard for sufficiency of the evidence is that, ‘taken in the light most favorable to the State and excluding modifying evidence, there [must be] sufficient evidence to fairly and reasonably support a finding of [guilt] beyond a reasonable doubt.’” State v. Robar, 157 Vt. at 391, 601 A.2d at 1378 (quoting State v. Papazoni, 157 Vt. 337, 338, 596 A.2d 1276, 1276 (1991)) (alterations in original).

We have previously considered whether a prior statement admitted as past recollection recorded may be sufficient to support a conviction where the prior statement is the sole evidence of guilt. In Robar, we declined to adopt the rule of United States v. Orrico, 599 F.2d 113, 118-19 (6th Cir. 1979), in which the Sixth Circuit held that where past recollection recorded or prior inconsistent statements are the sole evidence for a central element of a case, that evidence is insufficient to support a finding of guilt beyond a reasonable doubt. Robar, 157 Vt. at 392-93, 601 A.2d at 1378-79. Instead, noting our concern that the result not be “overly rigid in circumstances where the prior statement is particularly reliable,” id. at 395, 601 A.2d at 1380, we adopted the less rigid standard set out by the New Jersey Supreme Court in State v. Mancine, 590 A.2d 1107 (N.J. 1991). Robar, 157 Vt. at 395, 601 A.2d at 1380. In Mancine, the New Jersey court held that an uncorroborated, prior inconsistent statement could stand as sufficient proof of the elements of a crime if the “statement was made under circumstances supporting its reliability and the defendant has an opportunity to cross-examine the declarant.” Mancine, 590 A.2d at 1119.

Applying our decision in Robar to the facts of this case is somewhat difficult, because in Robar we gave only a brief explanation of why the prior statement at issue did not meet the test for reliability set out in Mancine. Robar, 157 Vt. at 395-96, 601 A.2d at 1380-81. In support of our holding in Robar that a witness’s prior inquest testimony, admitted at trial as past recollection recorded, was not sufficiently rehable to sustain the defendant’s conviction, we pointed out that the inquest testimony was given six months after the event, that the testimony was apparently given as part of a deal involving possible criminal charges against the witness, and that the witness may have mistakenly believed that the defendant had already confessed. Id. at 395-96, 601 A.2d at 1380.

We agree with the trial court that the facts of this ease bring it closer to Mancine, where the court allowed the conviction to stand, than to Robar. The tape-recorded statement of the victim in this case raises none of the reliability concerns present in Robar. The victim gave the statement the day after the assault. There is no suggestion that the victim was subject to coercive tactics when she gave her statement. See id. at 395, 601 A.2d at 1380. The Mancine court found the prior statement to be rehable because it was given two days after the relevant events and was a more complete version of a statement made earlier, and because the statement had a “‘casual,’ easy ‘flow.’” Mancine, 590 A.2d at 1118. Here, the victim’s statement, given the day after the assault, was consistent with an earlier statement given to the same police officer. The trial court found that the statement “did not appear to be forced, coerced or strained,” but rather had “a flow” and sounded “fairly comfortable.”

The reliability of the victim’s tape-recorded statement is further bolstered by the presence of some corroborating evidence. The police officer testified that he saw scratches on the victim at the time she gave her statement. Defendant himself told the police officer that he “had been involved in a physical confrontation with his wife” on the night in question (although he claimed that he had acted in self-defense). The victim’s testimony also placed defendant at the scene of the assault. See id. at 1117 (holding that “prior inconsistent statement for which substantial evidence exists corroborating any of its specific elements and enhancing its seeming reliability is corroborated in its entirety and may be used for all purposes”).

Robar requires not only that the prior statement meet certain standards of reliability, but also that the defendant have an opportunity to cross-examine the witness. Robar, 157 Vt. at 395, 601 A.2d at 1380. We noted in Robar that the cross-examination of the witness was “perfunctory” because the witness had testified that she had no memory of the inquest and the events surrounding it. Id. at 396, 601 A.2d at 1380-81. In this case, the victim similarly claimed no recollection of the assault or giving the statement. Nevertheless, cross-examination was far from “perfunctory.”

Where a prior statement has been admitted as past recollection recorded, cross-examination as to the substance of the prior statement will not be possible, because the statement will be admitted only if the witness claims to have no recollection of the relevant events. Unless we were to say that such a statement is not sufficient to support a criminal conviction, a position we rejected in Robar, id. at , 601 A.2d at 1380, the cross-examination is limited to the reliability of the prior statement. Here, defense counsel questioned the victim regarding her lack of recollection, and brought out the victim’s use of prescription drugs at the time the statement was given. Defense counsel also questioned the police officer regarding his observations of the victim and the circumstances under which he took the victim’s statement. Defendant thus had ample opportunity for cross-examination as to the reliability of the victim’s statement.

The tape-recorded statement of the victim, properly admitted as past recollection recorded,⁴ was sufficient evidence to support defendant’s conviction for simple assault, because it was made under circumstances supporting its reliability and defendant had an opportunity to cross-examine the victim.

Affirmed.

1 VR.E. 803(5) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

2 The facts in Porter are not directly analogous to this ease, because the witness in Porter had signed the statement under penalty of perjury at the time it was made, and had also initialed the statement several times where she had changed the wording. As in many past recollection recorded cases, the statement in Porter was prepared by a law enforcement agent, rather than by the witness herself. The reasoning in Porter is, however, still applicable. That the witness signed the statement when it was made was not determinative, but was one factor supporting the accuracy of the statement.

3 The dissent emphasizes this statement as announcing a foundational requirement for admission under Rule 803(5). We note, however, that the statement was based on “a review of the record,” State v. Lander, 155 Vt. 645, 645, 582 A.2d 128, 128 (1990)(mem.), and may more fairly be read as a recounting of the facts of the case.

4 Although the issue was not raised on appeal, the dissent argues that permitting the jury to hear the tape in the victim’s own voice also violated YR.E. 803(5), which states that a memorandum or record, admitted as past recollection recorded, “may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.” This restriction, which has been criticized by some commentators, see 3 J. Wigmore, Evidence § 754 (Chadbourn rev. 1970), reflects a concern that “undue weight might be given to the document itself.” Reporter’s Notes, YR.E. 803. If the written memorandum or record was admitted into evidence, it would be available to the jury during deliberations.

While it is true that a writing may tend to take on greater significance with the jury simply because the statement is in writing and in the hands of the jury, the playing of a tape recording does not raise the same problem. It seems ludicrous to suggest that in this case the jury should hear another person read a transcript of the tape, rather than hear the victim actually making the statement. Why should the jury not judge the credibility of the prior statement by hearing it from the victim’s mouth?