Assault conviction overturned by Vermont Supreme Court
BRATTLEBORO -- The Vermont Supreme Court overturned the conviction of a man found guilty of domestic assault for an incident in July 2012.
According to a decision issued on Aug. 8, a Windham County Superior Court Judge, Criminal Division, should not have admitted a letter by the victim, which described the assault, because the victim had no recollection of writing it or dictating it to an investigator.
That alone does not normally restrict admission of such evidence, wrote Supreme Court Justice Geoffrey Crawford, in the decision. However, he wrote, "Without minimizing the solemn importance of oath-taking, the notarization of a statement by an intoxicated person in the middle of the night provides scant assurance of its truth."
Even though the alleged victim told the court during the 2012 trial that she would not sign something she didn’t believe was true and that she wouldn’t lie to the police, noted Crawford, "A witness with no memory of providing the statement may be unable to provide this assurance of reliability."
On July 30, 2012, Allen Spaulding, 28, and the woman spent a day together in Wilmington. According to court documents, they had been in a relationship for the previous year-and-a-half, although the complainant had recently obtained a no-trespass order against Spaulding. Over the course of the day, the woman drank heavily. She told state troopers she was "trashed" when the couple returned to her home in the evening.
Just before midnight, she called 911, seeking help, telling the dispatcher that she believed her jaw was broken.
"She said that defendant had been in her house despite the no-trespass order and that he ‘had me around the neck,’" according to court documents. "She said she was bleeding and had lost consciousness."
Spaulding was arrested a short time later for violating the no-trespass order.
"The trial occurred on Jan. 15," wrote Deputy State’s Attorney Ashley Harriman in an e-mail to the Reformer. "It was a one day trial and the jury deliberated until almost 9 p.m. that night before returning guilty verdicts on two counts of first degree aggravated domestic assault and not guilty on unlawful trespass."
During his sentencing hearing, held on April 26, 2013, Spaulding received one to four years to serve.
But Spaulding is also serving a sentence for a conviction of first degree aggravated domestic assault from an incident that occurred in Pownal on Nov. 22, 2011. The criminal court in Bennington County released him on conditions, but when he committed the alleged assault in Wilmington in 2012 he was arrested for violating those conditions and sentenced to two to four years for the assault in Pownal. Spaulding is currently incarcerated in a prison in Kentucky.
During the trial for the Wilmington incident, the witness told the jury she had no memory of writing the statement and testified "I can tell you that it doesn’t even really look like my writing," though she was able to identify her signature at the bottom of the statement. The investigating officer told the jury the alleged victim was emotionally upset but not too intoxicated to complete a sworn statement. At trial the alleged victim testified that she was extremely intoxicated and recalled nothing of the evening except being taken to the hospital by ambulance.
"He told the court he assisted the complainant in writing the statement by telling her the type of information to include," wrote Crawford. "He reviewed it with her and had her swear to it. He then notarized the statement. He found the written statement to be consistent with earlier verbal statements made to him by the complainant."
The statement reads that Spaulding came to the alleged victim’s home at 7:30 p.m. looking for "money, cigarettes, food etc." The statement also contends Spaulding grabbed her "by the throat, dragged her, punched her in the mouth, and threatened to kill her before taking her money and cigarettes."
Spaulding was originally charged with aggravated domestic assault, domestic assault, and unlawful trespass. He was convicted on the domestic assault charges, but found not guilty on the trespass charge. On appeal, Spaulding contested the court erred by admitting the statement into evidence.
"Exactly who wrote the statement remains disputed," noted Crawford. However, evidence, including the investigator’s report, the recording of the 911 call and photographs of the alleged victim’s injuries "was sufficient to show that defendant attempted to cause or willfully caused serious bodily injury to the complainant."
But to accept a statement of an event, the person submitting it must have knowledge of the events, that he or she doesn’t have sufficient recollection to testify fully or accurately and that the statement is "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."
"There is no dispute in this case concerning the first two elements," wrote Crawford. "The parties disagree over whether there was sufficient evidence to meet the third requirement."
And while people are more likely to describe themselves as mainly honest, he noted, "In court as elsewhere in life, we discount such general claims of truthfulness and honesty. ... Accepting such an endorsement reduces the accuracy requirement, and judges should have leeway to exclude statements offered on this basis almost as a matter of instinct if they doubt the substance of the endorsement, and some decisions require exclusion in this situation."
Crawford wrote that the Supreme Court was concerned about "the problem of confirmation bias," what he called "looking through the wrong end of the telescope."
"Having formed an idea, people, including judges, are notoriously prone to pick and choose among the evidence which supports their initial view. ... Photographs of the injuries demonstrate that the complainant suffered a cut lip, but they tell us little about how it happened. They are consistent with injury inflicted by defendant as well as with other explanations. Similarly, defendant’s presence in the apartment is consistent with an assault, but it does not prove it. The judge’s search for circumstantial evidence of reliability can become little more than a search for confirmation of an unexpressed decision to admit the statement."
Crawford also noted that the Supreme Court recognized its conclusion in this case "presents obstacles to cases in which victims are prone to recant or are fearful of retaliation. These are very real problems in the criminal justice system. They are not solved, however, by expanding the exception for past recollection recorded to allow the admission of virtually any statement by a person who testifies that she is normally truthful and has no current memory of the events described."
Because "the erroneously admitted statement was central to the State’s case ... We remand the case for a new trial."
While he agreed with the decision, Justice Timothy Tomasi expressed concern that a statement won’t be allowed even where "the witness can apply his character or trait to the circumstances of the recorded recollection and proceed to testify as to his belief that the statement itself is truthful and accurate."
"Unfortunately, people lose their memories for many reasons. They may suffer from amnesia, have Alzheimer’s disease, take powerful and debilitating medications, or incur a traumatic brain injury. If they are still able to testify in open court as to their honest belief that a statement they previously made was truthful, I believe that should be sufficient to sustain its admission under (court rules)."
Bob Audette can be reached at firstname.lastname@example.org, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.
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