State v. Larkin, 2018 VT 16
I like evidence. I like the Rules of Evidence. I even like the hearsay rules, which puts me in a distinct category of “big nerds who like the hearsay rules.” We have fun parties.
In a trial, generally the jury doesn’t get to hear about a defendant or witness’s prior criminal record. I say “generally” because one of the best things about the Rules of Evidence is the exceptions. And I say “best” when I really mean “the thing that drives people crazy.” But generally, a jury isn’t going to get to hear all about how William Witness or Danny Defendant have rap sheets two miles long. Why? Well, because what really matters in the trial is proof of the facts in the case at hand, not things that happened before. It would be really tempting for a jury to say, “Gee, he’s got 27 prior convictions, so he must be guilty this time. Let’s just find him guilty, regardless of the evidence in this case.” You can see how this would be a problem.
But we have a special rule: Rule 609. Rule 609 allows a witness to be impeached with a prior conviction if the underlying crime has an element of untruthfulness. Suppose William Witness testifies that he saw Danny Defendant punch Victoria Victim in the nose. Danny Defendant may be tempted to try to say, “Yeah? You’re gonna believe this guy? He got convicted four years ago on a DUI.” To which a reasonable juror would, or at least should, say, “So what?” Other jurors might see it differently and say, “Well, if he’s ever been in trouble he’s no good I’m not going to believe him no matter what.” Either way, it isn’t relevant, and it can become a distraction from the real task at hand. It doesn’t make it any more or less likely that he’s saying what he saw.
Rule 609 allows introduction of a witness’s prior convictions for untruthful conduct.
Now that that’s out of the way, let’s get down to Mr. Larkin’s case. The facts are actually pretty simple. Mr. Larkin and the complainant were in a hotel room together. Mr. Larkin rented the room. Although nobody actually saw the complainant go in the room, there was some circumstantial evidence that she was in the room with him. There was an argument, and at some point someone called the police. The police found the complainant walking down the road about a mile from the hotel. She had an outward appearance of having been in a physical fight. She had also called 911.
Mr. Larkin was then arrested for two counts of domestic assault and wanted a trial in the case.
During the trial, the State played the complainant’s 911 call. In the 911 call she made certain statements about what was alleged to have happened between she and Mr. Larkin. She said, “He hurt me so bad,” “he kicked me in the stomach it’s really hard for me to breathe,” “why did he have to punch me in the face,” “he pulled my hair out,” and “I’m in pain, I’m in a lot of pain.” It was clear in the call that the “he” she was talking about was Mr. Larkin.
Based on the 911 call, police and EMTs went out and found the complainant. She told them her boyfriend strangled her and hit her, dragged her out of the car, and punched and hit her. She said the same things to a nurse. The EMTs and the nurse testified about what she said and about what they saw.
Here’s the other thing: the complainant didn’t testify. So, Mr. Larkin moved to have evidence of the complainant’s recent conviction for providing false information to police admitted to impeach her statements. The state argued it was inappropriate for the conviction to come in as evidence because the complainant didn’t actually testify. The court agreed, and kept the conviction out. Sidenote: this feels like having it both ways. You don’t get to not have a witness testify, but then try to stand unchecked on the strength of that witness’s statement. And I might have just summarized this entire case in that sentence right there.
Mr. Larkin testified, offering a different version of the information. The jury found him guilty of one count but acquitted on another count.
He appealed the conviction, and SCOV reversed, because this is insanity. Well, that’s not the reason SCOV gave, but that’s the reason I’m giving, and you’re reading my summary.
First of all, Mr. Larkin argued that the complainant’s conviction for providing false information to police—which happened only four months prior to this alleged incident—should have been admitted to impeach the complainant’s story. The state argued that this argument wasn’t preserved by Mr. Larkin because he cited Rule 609 instead of Rule 806, which permits attacking a hearsay declarant’s credibility. SCOV does the appellate court version of an audible sigh and says that the issue was properly preserved because the court knew what the defendant was trying to do. Also, Rule 609 was the correct rule.
SCOV sees it differently. This case was one where there were two sides to the same story, and only one of the sides actually testified (notably, the side that is never required to do so). Because this is a case of a he said-she said, the credibility of both sides is relevant. Here the case had a witness who didn’t testify, but whose statements came in to court as a result of playing a 911 call. Seems pretty relevant for the jury to know that just four months prior to this incident that same complainant admitted guilt beyond a reasonable doubt that she lied to police.
In the long run, we have no idea what the jury would have done. But because the jury could have reasonably found that the complainant had previously (and recently) lied to police, that her statements were less credible than they might otherwise have been.
There was an additional argument having to do with due process issues, but because SCOV found the court’s not admitting the false information conviction was reversible error, SCOV doesn’t reach that argument.
There’s a dissent. I’ll be brief. Essentially, the dissent says this is the right analysis, but that this actually probably is harmless error. The dissent reads the facts of the case to be much stronger than a he said-she said situation. There were other witnesses, like the EMTs and the nurse, who could corroborate the complainant’s story with their observations of her alleged injuries. The dissent isn’t so sure that in light of all this, that the fact of a false information conviction would be enough to change the jury’s decision. On one hand, sure, she has previously lied to police. On the other hand, she said “he hit me in the face” and had observable injuries consistent with being hit in the face.
For that reason—and again, this is boiled way down—Chief Justice Reiber, joined by Justice Carroll, dissents.