State v. Marcy
680 A.2d 76, 165 Vt. 89, 1996 Vt. LEXIS 41 (1996)
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Rule of Law:
A witness's prior recorded statement may be admitted as past recollection recorded under V.R.E. 803(5) based on a case-by-case evaluation of its circumstantial trustworthiness, even if the witness does not vouch for its accuracy at trial. Such a statement, if deemed sufficiently reliable, can serve as the sole evidence to support a criminal conviction, provided the defendant had a meaningful opportunity to cross-examine the declarant regarding the statement's reliability.
Facts:
- On December 28, 1992, an alleged assault occurred involving defendant and his wife, the victim.
- Following the incident, the victim obtained a restraining order against the defendant.
- The next day, December 29, 1992, a police officer interviewed the victim at her home.
- The victim told the officer that the defendant had pounded her head against a door and choked her to the point of nearly blacking out.
- The officer observed scratches on the victim's face, which she attributed to the confrontation with the defendant.
- Another resident of the house told the officer he heard shouting from the couple's bedroom, including the victim saying, “Don’t do it, please don’t do this,” followed by a banging noise.
- After the initial interview, the officer made a tape-recording of the victim's statement, during which the victim appeared alert and understood what she was doing.
Procedural Posture:
- The State of Vermont charged the defendant with simple assault.
- At a trial by jury in the trial court, the victim testified that she could not remember the assault or making a statement to police.
- The State offered the victim's tape-recorded statement into evidence under the past recollection recorded exception to the hearsay rule, V.R.E. 803(5).
- Over the defendant's objection, the trial court admitted the tape-recorded statement.
- The defendant moved for a judgment of acquittal, arguing the tape-recorded statement was insufficient evidence to support a conviction, but the trial court denied the motion.
- The jury returned a verdict convicting the defendant of simple assault.
- The defendant (appellant) appealed his conviction to the Supreme Court of Vermont.
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Issue:
Does a victim's tape-recorded statement describing an assault, made one day after the event, qualify as admissible past recollection recorded under V.R.E. 803(5) when the victim testifies to having no memory of the assault or making the statement, and, if so, is that statement alone sufficient evidence to sustain a conviction?
Opinions:
Majority - Johnson, J.
Yes. A tape-recorded statement can be admitted as past recollection recorded based on circumstantial evidence of its trustworthiness, even without the witness's in-court affirmation of its accuracy, and such evidence can be sufficient for a conviction if it is reliable and the defendant has an opportunity for cross-examination. The admissibility of a statement under V.R.E. 803(5) does not require the witness to personally vouch for its accuracy; rather, the rule requires that the statement be "shown" to be accurate, which can be established through a case-by-case evaluation of factors indicating trustworthiness. Here, the statement's reliability was supported by its timing (made the day after the assault), its detail and coherence, the officer's observations of the victim's demeanor, and corroboration from another witness. This sufficiently reliable statement can be the sole basis for a conviction under the standard set in State v. Robar, as it was made under reliable circumstances and the defendant had an adequate opportunity to cross-examine the victim concerning her memory loss and the circumstances surrounding the statement, thereby testing its reliability.
Dissenting - Dooley, J.
No. The statement was inadmissible hearsay because it lacked the necessary foundation that the witness aver to its accuracy at the time it was made, and even if admitted, it was insufficient for a conviction because the defendant was denied a meaningful opportunity for cross-examination. The majority's decision effectively overrules precedent from State v. Lander by creating a new, unsupported distinction for statements made by the witness versus a third party and allows admission based on external indicia of reliability. This approach transforms V.R.E. 803(5) into a catch-all hearsay exception, which Vermont has expressly rejected. Furthermore, the defendant's right to cross-examination was rendered futile because the victim professed no memory of either the event or the making of the statement, making it impossible to probe the statement's accuracy or the witness's credibility, a deficiency more severe than that in Robar.
Concurring - Allen, C.J.
Yes. The statement was properly admitted and was sufficient to support the conviction, but the court did not need to adopt the majority's broad, flexible interpretation of V.R.E. 803(5) to reach this result. The traditional foundational requirements for past recollection recorded were satisfied because the victim testified that she did not believe she would have made the statements to the officer if they were not true. This testimony is sufficient to establish the statement's accuracy under a conventional reading of the rule, analogous to a witness testifying they would not have signed a document unless it were correct. Therefore, the majority's more expansive analysis based on a totality of the circumstances test for trustworthiness was unnecessary to decide the case.
Analysis:
This decision significantly broadens the path to admissibility for statements under the past recollection recorded hearsay exception in Vermont, shifting from a strict requirement for the witness to vouch for the statement's accuracy to a more flexible, totality-of-the-circumstances test focused on trustworthiness. This is particularly impactful in domestic violence prosecutions, where victims may later recant or claim memory loss. The ruling establishes that a victim's initial, detailed statement to law enforcement can be the sole evidence for a conviction, provided it is deemed reliable, thus preventing a defendant's acquittal based solely on a key witness's subsequent unwillingness or inability to testify.
