State v. Glen Haskins, Jr. , 202 Vt. 461 ( 2016 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.
2016 VT 79No. 2014-299
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division
Glen Haskins, Jr. October Term, 2015
Michael S. Kupersmith, J.
Thomas J. Donovan, Jr., Chittenden County State’s Attorney, and Pamela Hall Johnson,
Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. REIBER, C.J. This is an attempted murder case. At trial, defendant theorized
that a group of late-night club-goers with whom he was partying conspired to frame him for a
stabbing that occurred in downtown Burlington shortly after two o’clock in the morning of
January 15, 2012. Defendant argues that the trial court erred by excluding exculpatory testimony
and by giving misleading jury instructions regarding reasonable doubt and permissive inferences.
We affirm on all issues and uphold defendant’s conviction.
¶ 2. Three important features defined this case at trial. First, there was confusion over
who stabbed the victim. This confusion was created by the quickly unfolding nature of the events
that led to the stabbing, the number of people at or near the scene of the altercation, the victim’s
inability to identify the person who stabbed him, and the incomplete and conflicting recollections
of witnesses. Second, due to the lack of physical evidence linking defendant to the stabbing, the
State’s case relied principally on the testimony of various witnesses, including the victim, two
women who witnessed the stabbing from their nearby parked car, three members of the group of
club-goers, defendant’s former girlfriend, defendant’s surrogate mother, a trauma surgeon who
treated the victim, and several Burlington Police Department officers who responded to or
investigated the crime. Third, as noted, defendant’s primary theory at trial was that the group of
friends he was with at the scene conspired to frame him to protect the actual perpetrator among
them. He emphasizes that members of the group did not implicate him in the crime until after
they were initially interviewed by police.
¶ 3. The jury was tasked with piecing together multiple witnesses’ testimony—much
of which was incomplete or conflicting—into a coherent picture of what occurred that night.
The following rendition of the facts is drawn from that testimony. On the night of January 14,
2012, defendant met his former girlfriend, Sarah Giles, at a pool hall in downtown Burlington.
Giles and defendant had dated from the end of October 2011 until shortly before the New Year,
and had lived together at Giles’ apartment for part of that period. They met that night
contemplating getting back together again, and they engaged in hugging and kissing at the pool
hall. Giles informed defendant that she planned to go to a local nightclub later with their mutual
friend, Jess Sturtevant, with whom defendant had grown up.
¶ 4. Giles and Sturtevant arrived at the nightclub at approximately ten-thirty in the
evening and encountered Shaun Couture, Chad Limoge, Jess Cornell, and Hannah Yuric. Giles
had known Cornell and Yuric since high school, but did not know Couture and was only
tangentially aware of Limoge, who was Couture’s cousin and Cornell’s boyfriend. Defendant
arrived at the club with two of his friends about an hour after Giles and Sturtevant had gotten
there. Defendant and Giles continued to interact romantically at the club.
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¶ 5. Several minutes past two in the morning after the club closed, defendant, Giles,
Sturtevant, Cornell, Yuric, Couture, and Limoge went outside to get pizza at a next-door
pizzeria. While they were outside, another man, Eric Hazen, who had been at the club and who
Giles knew from high school, engaged defendant and Giles in a conversation. As the group
waited for pizza, Cornell began yelling that she had been grabbed or punched by the victim, a
stranger who was passing by on the sidewalk. Couture and Limoge confronted the victim, and
an argument ensued. There was testimony from some members of the group, which was
contradicted by the victim, that the victim attempted to punch Limoge but inadvertently struck
Cornell instead. At that point, several members of the group—defendant, Couture, Limoge,
Hazen, and Yuric—began pursuing the retreating victim to the end of the block. Giles testified
that she yelled at defendant to come back, and that he did so initially but turned around again to
join the others in pursuit of the victim.
¶ 6. The exact details of the stabbing itself are even less clear. The victim testified
that he was followed around a corner by two men from the group, and when those two men
confronted him, he squared up to fight. Although the victim did not remember much about the
perpetrator’s appearance, he recalled that one of the men, the taller of the two, lunged in towards
him. The victim testified: “I just felt like a punch in my stomach, and then I knelt
down . . . trying to catch my breath. And then I felt it was like wetness, and then I saw blood
going down and I was like, ‘Fuck, you fucking stabbed me.’ ”
¶ 7. Couture testified that defendant had stabbed the victim. According to Couture, he
followed the victim down the street from where the altercation started and around the corner, at
which point defendant ran past him and appeared to punch the victim in the stomach before
running away. Two women who were in a parked car near where the stabbing took place
testified as to what occurred and described the assailant. The woman with the clearer
recollection of the altercation testified that the victim—a black man—came around the corner
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while being followed by two white men. According to the witness, after the victim said
something like “I ain’t got your shit,” the taller of the two men leaned in and made a swiping
motion toward the victim’s midsection, after which both white men ran off, heading in different
directions once they reached the corner from which they had come.
¶ 8. Within seconds of being stabbed, the victim flagged down a police cruiser.
Shortly thereafter, other police officers in the area encountered Couture, Limoge, and Yuric. At
some point, Giles contacted defendant, who had gone to the nearby apartment of his friend, Chad
Ely, the son of Emma Ely, who testified that defendant had been a close part of her family since
he was five years old. Giles, Sturtevant, and Cornell then went to Ely’s apartment to join
defendant. The three women remained at the apartment for about half an hour, until Sturtevant
was able to get hold of Yuric, at which point the women went to the Burlington police station to
be interviewed. In the early morning hours of January 15, the police interviewed Couture,
Limoge, Yuric, Giles, Sturtevant, and Cornell, none of whom mentioned defendant’s presence at
or involvement in the altercation.
¶ 9. After the interviews, Giles, Sturtevant, Couture, and Limoge left the police station
together in Giles’s car. There was conflicting testimony as to how it transpired, but during the
ride Couture told Limoge, who in turn told the women, that Giles’s boyfriend had stabbed the
victim. Couture reported that to the police the next day. Meanwhile, Giles contacted defendant
through Facebook and told him that people were saying he had stabbed the victim. When
defendant responded to her message later that morning, Giles asked defendant what had
happened the previous night, and he told her that they could talk about it later. Giles testified
that she met defendant later that day, at which time he admitted to her that he had stabbed the
victim because he thought the victim had struck Sturtevant. Giles further testified that she
encouraged defendant to turn himself in to police, but when he later denied being the assailant in
another Facebook exchange with her, she went to the police on January 17 and told them
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defendant had admitted stabbing the victim. Giles agreed to meet with defendant wearing a body
wire, but during their recorded conversation he did not admit to stabbing the victim. Defendant
was arrested and charged with attempted second-degree murder.
¶ 10. At trial, defendant’s primary theory was that the group of party-goers conspired to
frame him to protect the actual perpetrator among them. Apparently unconvinced by this theory,
the jury returned a guilty verdict, and defendant was sentenced to twenty years to life, all
suspended except for twelve years. On appeal, defendant alleges that the trial court erred by:
(1) not allowing a police officer to testify that Limoge telephoned police on the morning of
January 15 to report that he had overheard Giles and Sturtevant saying that defendant stabbed the
victim; (2) incorrectly instructing the jury on the meaning of reasonable doubt; (3) suggesting in
its intent-to-kill instruction that defendant harbored such intent; and (4) not telling the jury that it
had to find each basic fact beyond a reasonable doubt in order to infer this intent.
I.
¶ 11. Defendant first argues that the trial court erroneously refused to allow a police
officer to testify that Limoge called police not long after he was initially interviewed to report
that he had overheard Giles and Sturtevant in the car ride from the police station saying that
defendant was the one who had stabbed the victim. Defendant argues that the trial court should
not have excluded the testimony as hearsay because it was offered for its falsity rather than its
truth. We agree that the trial court erred in excluding the testimony, but conclude that the error
was harmless.
¶ 12. At trial, defense counsel sought to elicit testimony regarding how defendant was
identified to police as the person who stabbed the victim. The following exchange occurred
during defense counsel’s cross-examination of Giles:
Q: If Mr. Limoge were to say to the police that on the car ride
from the police station to the Champlain Farms he had overheard
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the girls talking about who had done it and that’s . . . how he
learned about who did the stabbing, would that be accurate?
....
A: No.
A similar exchange occurred during defense counsel’s cross-examination of Couture:
Q: If Chad Limoge called the police after you had left the police
station, 6:00, 7:00 in the morning, and called the police and said,
“He knew it was [defendant] because he overheard the girls talking
about it, and they said it was [defendant],” that would be the truth,
would it?
A: I don’t know. I know what I said, so.
Q: You didn’t overhear the girls talking, saying, “Hey, we know
it’s [defendant] that did this?”
A: No
¶ 13. Later, on the third day of trial, the following exchange occurred during defense
counsel’s examination of the officer who answered Limoge’s telephone call:
Q: Okay. At some point after Mr. Limoge leaves, did you receive
a phone call from Mr. Limoge?
A: Yes.
....
Q: Okay. And did you speak with him?
A: Yes.
Q: And what did he have to say?
At that point, the prosecutor objected on hearsay grounds. Defendant stated that he was
not offering the testimony for the truth of the matter asserted but rather for the fact that Limoge
made the call and lied to police about Giles and Sturtevant saying that defendant was the
assailant. The trial court ruled, however, that the statement was inadmissible as hearsay, and
advised defense counsel that he would have to call Limoge as a witness if he wanted the
testimony admitted.
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¶ 14. The trial court has wide discretion in ruling on the admissibility of evidence. See
State v. Noyes, 2015 VT 11, ¶ 13, 198 Vt. 360, 114 A.3d 1156. We will set aside evidentiary
rulings only if a defendant shows “that the court’s discretion was either totally withheld or
exercised on grounds clearly untenable or unreasonable.” State v. Parker, 149 Vt. 393, 401, 545
A.2d 512, 517 (1988) (quotation omitted). The State argues that, given its wide discretion, the
court had a reasonable basis for excluding the officer’s testimony regarding Limoge’s statements
and that, even if the court’s ruling was erroneous, it was harmless. State v. Madigan, 2015 VT
59, ¶ 32, ___ Vt. ___, 122 A.3d 517 (“When the admission of evidence, exclusion of evidence,
or propriety of argument is objected to in the trial court and raised on appeal, we review for
harmless error, determining whether (1) the ruling was erroneous, and (2) if so, whether ‘a
substantial right’ of defendant was affected.”).
¶ 15. We conclude that the trial court erred in excluding the proffered testimony on
hearsay grounds because the testimony was not offered to prove the truth of the matter asserted.
See V.R.E. 801(c) (“ ‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”).
The testimony was not offered to prove that Limoge heard Giles and Sturtevant talking about
defendant being the assailant, but rather the opposite—to suggest that Limoge was lying to
police about what he overheard the women saying. This does not constitute hearsay. See United
States v. Hathaway, 798 F.2d 902, 905 (6th Cir. 1986) (“[S]tatements offered to prove the falsity
of the matter asserted are not hearsay.”); see also United States v. Brown, 560 F.3d 754, 765 (8th
Cir. 2009) (holding that witness’s statement to police “was not introduced for the truth of the
matter asserted, but to show that he was lying,” which is not inadmissible hearsay).
¶ 16. Defendant contends that the error was not harmless because it undercut the
defense’s primary theory that the close-knit group, particularly Couture, Limoge, and Giles,
conspired to falsely accuse him of stabbing the victim. According to defendant, because
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Limoge’s telephone call to the police was the first time police were told that defendant was the
assailant, if he could have shown Limoge was lying about Giles and Sturtevant saying it was
him, it would have bolstered his conspiracy theory. Upon review of the record, we conclude that
the trial court’s error in not allowing the police officer’s response was harmless.
¶ 17. We will uphold defendant’s conviction if we find that the error was harmless
beyond a reasonable doubt. State v. Lipka, 174 Vt. 377, 384, 817 A.2d 27, 33 (2002) (“We can
uphold a criminal conviction, despite a confrontation clause error, if we find that the error was
harmless beyond a reasonable doubt.”). In conducting this analysis, we do not play the role of
factfinder; rather, our focus is on the jury and whether it would have returned a guilty verdict
even if the excluded testimony had been admitted. See id. (holding that error is harmless and
conviction will be upheld upon determination beyond reasonable doubt that jury would have
convicted even if error had not occurred). The two primary components of this determination are
weighing (1) the strength of the case against defendant without the excluded evidence, and
(2) the strength of the excluded evidence. Id. at 385, 817 A.2d at 34 (“The two most important
factors in the harm equation we must employ are the strength of the prosecution’s case without
the offending evidence and the strength of the offending evidence.”); see also Coy v. Iowa, 487
U.S. 1012, 1022 (1988) (“[H]armlessness must . . . be determined on the basis of the remaining
evidence.”).
¶ 18. We first examine the strength of the State’s case. The State’s principal hurdle in
this case was identifying defendant as the person who stabbed the victim. Without question, and
not surprisingly given the number of witnesses, the inebriated state of several of those witnesses
at the time of the altercation, the occurrence of the assault outside at night in limited light, and
the rapidity of the events that led to the stabbing, there was conflicting testimony concerning the
identity of the assailant. Nevertheless, the State presented substantial evidence identifying
defendant as the person who stabbed the victim.
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¶ 19. The State presented three eyewitnesses to the stabbing, two of whom were not
part of the group that defendant claims framed him. Couture was the eyewitness who was part of
the group. He was identified as one of the two persons—the shorter one with a burnt orange or
camouflage top—who turned the corner and approached the victim right before the stabbing.
Hence, he certainly would have known who stabbed the victim. His testimony is brought into
question, however, by defendant’s theory that he lied to protect another member of the group.
We will address this theory in more detail later.
¶ 20. As noted, the other two eyewitnesses were not part of the group and defendant has
not suggested that they had any reason to lie about what they saw. One of the two women in the
car parked nearby to where the assault occurred expressed some uncertainty about the
appearance of the assailant, although she thought he was the taller of the two men approaching
the victim. The other woman, however, accurately described what Couture was wearing and
expressed certainty that the assailant was not him but the taller of the two men, who was around
six feet tall, with a scruffy chin, and wearing a blue and green plaid zippered hoodie with a white
background. The State presented substantial evidence at trial that defendant was about six feet
tall and a couple inches taller than Couture, had a scruffy goatee, and was wearing a button-up
blue-and-white plaid flannel shirt that Giles had given him for Christmas in December 2011.
The witness who described defendant’s appearance also testified that immediately after the
stabbing, the two white men retreated to the street from which they had come, with the assailant
then heading south and the other man heading north. This testimony was consistent with where
Couture was apprehended by police and also the direction defendant would have gone to arrive
at Chad Ely’s nearby apartment.
¶ 21. To be sure, defendant points out that the disinterested eyewitness described the
assailant as wearing a hooded sweatshirt with a plaid design and zipper, while other evidence
indicated that defendant was wearing a button-up plaid flannel shirt that night. Moreover,
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defendant elicited testimony from the first officer on the scene that she saw two men running
from the direction of the stabbing and that one of them she knew to be Erik Hazen was wearing a
plaid sweatshirt. On cross-examination, however, the officer acknowledged that her memory of
Hazen’s attire was placed in doubt by the fact that the dispatches that night from her call-in
indicated she had described Hazen as wearing a black jacket, which was confirmed by the
testimony of other witnesses. Thus, the officer’s testimony does not significantly undermine the
testimony of the disinterested eyewitness that the stabber was wearing a plaid top similar in color
to what defendant was wearing that night.
¶ 22. There was also evidence that defendant regularly carried a knife and that he had
one on him on the night of the stabbing. Both Giles and Emma Ely testified that defendant
regularly carried a knife on him. Giles testified that while dancing with defendant on the night of
the assault she felt the knife in his pocket. The State also presented testimony that the police
were unable to find defendant’s knife or the shirt he was wearing the night of the assault, despite
obtaining warrants and searching various locations. This is consistent with Giles’ testimony that
defendant told her that he got rid of the knife.
¶ 23. Moreover, the State presented significant evidence of defendant implicating
himself as the stabber. Most notably, Giles testified that defendant told her he was the one who
stabbed the victim. Although Giles was unable to obtain—at the urging of police—defendant’s
confession while she was wired, defendant did state to others that he had confronted the victim,
that the victim punched him, and that he heard someone yell out: “Did you stab him?” Chad
Ely’s wife, Amanda Carr, who saw defendant when he came to their apartment after the
stabbing, testified that defendant told her he had confronted the victim and got hit. Thus,
defendant admitted confronting the victim around the corner and he matched the description of
the stabber of the two men who turned the corner to confront the victim.
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¶ 24. The State also presented two sets of Facebook exchanges between Giles and
defendant. In the first, Giles told defendant that others were saying he was the stabber, and he
responded by suggesting they talk about it later. In the second, which occurred after defendant’s
alleged admission to Giles and her agreement with police to aid them in obtaining a confession
from him, she encouraged him to turn himself in and he denied being the stabber. He asked if he
could talk to her in person because “Facebook is not a good thing.” The State elicited testimony
from Amanda Carr that she participated in the second Facebook conversation he had with Giles
and she warned him not to meet with Giles because Giles was setting him up—which could
explain why later during the wired conversation Giles was unable to get defendant to repeat his
admission to having stabbed the victim.
¶ 25. As for the strength of Giles’s testimony that defendant admitted to her that he was
the person who stabbed the victim, there was very little evidence to bolster defendant’s theory
that she was part of a conspiracy to frame him. Indeed, both Giles and Emma Ely, defendant’s
surrogate mother, testified that defendant and Giles were contemplating getting back together
and acted as such the night of the stabbing. There is no evidence suggesting that they had a
falling out that night. Defense counsel tried to elicit testimony from Giles that she was “pissed”
at defendant that night, but redirect examination revealed that her prior deposition testimony was
that she was “pissed” at seeing defendant’s former girlfriend staring at them from the bar—
nothing more. Following the stabbing, Giles went to Chad Ely’s apartment to see defendant.
She did not seek to distance herself from him until his alleged admission to her that he was the
stabber and his reluctance to turn himself in.
¶ 26. Regarding any inclination Giles might have had to frame defendant to protect
someone else, there was no evidence as to whom she was allegedly protecting. The most logical
beneficiary of any conspiracy to frame defendant would have been Limoge, who was very close
to Couture and was one of the persons who followed the victim down the street after the victim
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allegedly groped or struck his girlfriend. As noted, however, Giles testified that she did not even
know Couture until the night of the incident and was only tangentially aware of Limoge, who
was the boyfriend of her friend, Cornell. Moreover, the State played a recording from a video
camera located at the pizzeria showing Limoge returning to the pizzeria within approximately
thirty-five seconds of the start of the scuffle—indicating that it was highly unlikely Limoge had
time to run down the street, confront and stab the victim, and then return to the pizzeria. Hazen
was also a potential suspect, but the only evidence to support a conspiracy theory to protect him
was that he was a friend of Couture and had gone to the same high school a year behind Giles.
Furthermore, neither the physical appearance nor the attire of either Hazen or Limoge fit the
principal eyewitness’s description of the assailant. All and all, despite inconsistencies in the
testimony of the various witnesses as to what occurred on the night of the stabbing, defendant’s
conspiracy theory was weak and the State presented a relatively strong case identifying
defendant as the assailant.
¶ 27. In discussing the strength of the State’s case, the dissent correctly states that
“[t]he record reflects extensive contact and communication among the various witnesses after
their initial police interviews corresponding to a developing collective sentiment that defendant,
and not the others, should be held accountable for the stabbing.” Post, ¶ 90. The record also
reflects that none of that contact or communication reveals any kind of conspiracy to frame
defendant. Rather, it reflects the witnesses’ determination not to take the fall for defendant’s
actions. For the most part, that evidence was presented by the State and was favorable to the
State’s case.
¶ 28. We now examine the strength of the excluded evidence. In doing so, we also
consider “the extent to which the offending evidence was inculpatory, whether it was cumulative
or duplicative of other evidence, and how prominent it was at trial.” State v. Groce, 2014 VT
122, ¶ 19, 198 Vt. 74, 111 A.3d 1273 (quotation omitted). The excluded evidence was a police
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officer’s testimony confirming that Limoge called the police station later the same morning that
the members of the group were first interviewed and informed police that he overheard Giles and
Sturtevant talking in the car ride from the police station about defendant being the person who
had stabbed the victim. Defendant argues on appeal that if he had been allowed to prove that the
first accusation against him was fraudulent, it would have bolstered his theory that the later
accusations by Couture and Giles were also fraudulent.
¶ 29. The logic behind this reasoning is not apparent. It is undisputed that the question
of the stabber’s identity arose during the car ride from the police station. Couture testified that at
some point he told Limoge that the stabber was the guy whom Giles had been with that evening.
He also testified that Limoge may have then told Giles and Sturtevant who the stabber was, but
he was not sure. Giles testified that after Limoge spoke to Couture he informed her that the guy
she had been with was the stabber. It is unclear why Limoge would have told the police that he
overheard Giles and Sturtevant saying that defendant was the stabber—perhaps because at that
point Couture and Limoge were considered suspects in the stabbing—and it is also unclear why
the jury would have considered this excluded testimony to be exculpatory with respect to
defendant. One would think that if members of the group were conspiring to falsely name
defendant as the stabber, they would have gotten their stories straight.
¶ 30. The excluded testimony did not go to the ultimate issue of defendant’s guilt or
innocence, but rather was intended to strike at the credibility of those group members who
testified against defendant, thereby contributing to defendant’s theory that he had been framed by
the group. Cf. id. ¶ 22 (stating that erroneously admitted testimony was “highly prejudicial” and
“inculpatory because it went directly to the ultimate issue of defendant’s guilt—it was not
peripheral, but rather went to the very heart of the State’s case”). This case was not a swearing
contest between a complainant and a defendant, however. As indicated above, there was
substantial additional inculpatory evidence from multiple witnesses pointing to defendant, and
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the excluded testimony directly attacked the credibility of a nonwitness, not a complainant. Cf.
id. ¶ 21 (noting that “only defendant and complainant testified as to what happened during the
alleged sexual encounter”); see also State v. Herring, 2010 VT 106, ¶ 13, 189 Vt. 211, 19 A.3d
81 (refusing to find harmless error and stating that right to confront witnesses and impeach their
credibility “is most important when the prosecution’s case . . . essentially depends on the
credibility of a single witness”); State v. Hazelton, 2006 VT 121, ¶¶ 20-21, 181 Vt. 118, 915
A.2d 224 (refusing to find harmless error where case was swearing contest between complainant
and defendant, and trial court erroneously allowed two witnesses to recite complainant’s
testimony to bolster her credibility); Lipka, 174 Vt. at 385, 817 A.2d at 34 (concluding that
seating that prevented defendant from seeing minor witness was not harmless because case
presented “a classic swearing contest” to jury). In short, it is difficult to say that the excluded
testimony had any real significance.
¶ 31. Moreover, defense counsel informed the jury in his opening statement that there
would be conflicting testimony as to when defendant was first identified as the stabber and that
Limoge first called police to tell them he overheard Giles and Sturtevant saying that defendant
was the stabber. Defense counsel then got both Couture and Giles to concede during their
testimony that it would not have been true if Limoge had told police that he overheard Giles and
Sturtevant saying that defendant was the stabber. Defense counsel further asked Couture
whether Limoge had called the police and given them defendant’s name, to which Couture
responded that he may have and that “the police said he called that same day.” This was
confirmed by the police officer’s testimony that Limoge did in fact call police after leaving the
station and spoke to the officer. Thus, while the jurors could not consider as evidence the
defense’s unchallenged claim as to what Limoge said, they knew that he called police shortly
after the initial interviews presumably to report something about the stabbing incident.
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¶ 32. In sum, given the strength of the State’s evidence of defendant’s guilt and the
relative insignificance of the excluded testimony, it is clear beyond a reasonable doubt that the
jury would have returned the same guilty verdict even if the trial court had allowed the excluded
testimony.
II.
¶ 33. Defendant next argues that the trial court committed structural error by instructing
the jury that the term “beyond reasonable doubt” means being convinced with “great certainty.”
In explaining reasonable doubt, the court told the jury, in part:
A few things in life are absolutely certain. To say that you
believe something beyond a reasonable doubt is to say that you’re
convinced of it with great certainty. But proof beyond a
reasonable doubt does not require you to be absolutely or 100
percent certain. A reasonable doubt may arise from the evidence
or from the lack of evidence.
....
You must find the Defendant not guilty when you have a
reasonable doubt. Even if you believe he is probably guilty. You
may find him guilty only if you have no reasonable doubt. You
need not be able to articulate or voice an explanation for your
doubt. And the doubt that . . . you have as an individual need not
be the same doubt held by your fellow jurors. Under no
circumstances may a guilty verdict be based upon conjecture or
suspicion.
(Emphasis added.)
¶ 34. According to defendant, the court committed reversible error by using the phrase
“great certainty” rather than “utmost certainty”—a phrase used by the U.S. Supreme Court in the
following sentence in In re Winship, 397 U.S. 358, 364 (1970): “It is also important in our free
society that every individual going about his ordinary affairs have confidence that his
government cannot adjudge him guilty of a criminal offense without convincing a proper
factfinder of his guilt with utmost certainty.” (emphasis added). We recently rejected an
identical argument in State v. Levitt, 2016 VT 60, ¶¶ 5-14, ___ Vt. ___, ___ A.3d ___. We
15
noted that the statement in Winship was “part of the explanation of why due process requires a
beyond-a-reasonable-doubt standard of proof in juvenile delinquency cases” and “did not require
that the term ‘utmost certainty’ be part of jury instructions.” Id. ¶ 5. After reviewing our
precedents and noting that our sister states and the federal courts afforded no “talismanic
significance” to the phrase “utmost certainty,” id. ¶¶ 9-12, we concluded there was no error, let
alone plain error, in the trial court’s use of the phrase “great certainty.” Id. ¶ 13. In so ruling, we
examined the trial court’s reasonable-doubt charge as a whole, noting in particular the court’s
emphasis on the defendant’s presumption of innocence and its repeated references to the
reasonable doubt standard without attempting to define the term. Id.
¶ 35. Similarly, in this case the trial court emphasized on multiple occasions that
defendant was to be presumed innocent, that he had an absolute right to rely on that presumption
and was not required to produce witnesses or evidence to prove his innocence, that the State was
required to rebut the presumption of innocence by producing evidence of defendant’s guilt
beyond a reasonable doubt, that the State had to prove each essential element of the charged
offense beyond a reasonable doubt, that any reasonable doubt compelled a not-guilty verdict, that
the doubt any individual juror had did not need to be the same doubt held by any other juror, and
that under no circumstances could a guilty verdict be based on conjecture or suspicion.
Accordingly, there was no error here. As we stated in Levitt, however, we discourage any
attempts to explain the term “reasonable doubt,” which we have described as a “hazardous
undertaking.” Id. ¶ 14 (quotation omitted).
III.
¶ 36. Defendant next argues that the trial court’s instruction regarding inferring an
intent to kill impermissibly suggested to the jury that the evidence proved the assailant’s specific
intent to kill. The court gave the following instruction regarding intent:
16
The second essential element is that the Defendant attempted to
kill [the victim] by stabbing him in the abdominal area. An
attempt requires both specific intent to commit a particular crime
and an open physical act designed to carry out that intent. The
State must prove the Defendant acted with a specific intent to kill
[the victim]. Specific intent means a decision to act with a
conscious objective of accomplishing a certain result; in this case,
the killing of [the victim]. The intent with which a person doesn’t
act may be shown by the way in which he or she expresses it to
others or by his or her conduct.
You, but are not required to infer intent to kill from evidence that
a deadly weapon was used. And from the manner in which it was
used. In considering [defendant’s] intent, you should [weigh] all
of the surrounding facts and circumstances established by the
evidence to determine whether the State has proved that he
intended to kill [the victim].
The State must also prove that the Defendant engaged in at least
one open physical act designed to carry out his intent. Threatening
words are not enough to be an act. You must distinguish between
mere preparation and the actual start of the criminal conduct.
Merely planning the offense or doing some act which might be
innocent in itself is not enough. An act is sufficient to be an
attempt to commit an offense if it is done intentionally and if it
progresses far enough to be the beginning of the crime. The act
must be part of a series of events which would lead to the
completion of the crime if not interrupted or prevented.
At trial, defense counsel objected to the underlined language, arguing that the court should also
have told the jury it could find that defendant merely intended to injure or seriously injure the
victim.
¶ 37. We conclude that the court’s instructions on intent, as a whole, properly stated the
law to the jury. See State v. Gokey, 136 Vt. 33, 36, 383 A.2d 601, 602 (1978) (“If the charge,
taken as a whole and not piecemeal, breathes the true spirit of the law, and if there is no fair
ground to say that the jury has been misled, then it ought to stand.”). First, the court accurately
charged the jury that defendant had to have had “a specific intent to kill” rather than merely an
intent to do the act of stabbing. See State v. Blish, 172 Vt. 265, 272, 776 A.2d 380, 386 (2001)
(“[W]e have specifically held that the intent component of voluntary manslaughter is the same as
17
that required for second degree murder—actual intent to kill, intent to do serious bodily injury,
or extreme indifference to human life.”). Second, the court stated that the jury may infer intent
from the circumstantial evidence presented to it. See State v. Cole, 150 Vt. 453, 456, 554 A.2d
253, 255 (1988) (“Intent is rarely proved by direct evidence; it must be inferred from a person’s
acts and proved by circumstantial evidence.”); see also State v. Bacon, 163 Vt. 279, 292, 658
A.2d 54, 63 (1995) (“Although the State must prove the requisite intent of each participant in a
felony murder with regard to the murder as well as the underlying felony, the jury may infer such
intent from circumstantial evidence.”). Third, the court correctly explained “attempt” in the
context of attempted murder. The court instructed the jury that it had to find an “open physical
act” rather than “[m]erely planning the offense.” State v. Johnson, 2013 VT 116, ¶ 29, 195 Vt.
498, 90 A.3d 874 (“There are two elements to Vermont’s attempt statute . . . (1) intent to commit
a crime, and (2) an overt act designed to carry out that intent.” (quotation omitted)).
¶ 38. In holding that the instructions properly stated the law, we explicitly reject
defendant’s argument that the court erred by telling the jury that it could rely on the use of a
deadly weapon, as well as the manner in which it was used, to find intent to kill. On this point,
defendant argues that the court improperly intimated to the jury that it should find only an intent
to kill, as opposed to an intent to injure defendant. According to defendant, the court should
have also instructed the jury that it could find that he was merely intending to injure the victim.
¶ 39. Defendant is correct that because of the deference that jurors may accord to the
trial judge, the court may not comment on the evidence in a way that particularly draws attention
to the claims of one party. See State v. Camley, 140 Vt. 483, 489, 438 A.2d 1131, 1134 (1981)
(“Our Vermont law further restrains a judge from commenting on the evidence in a way which
gives undue prominence to any fact, claim or circumstance. This is because a judge’s lightest
word or intimation is received by a jury with great deference, and may prove controlling.”
(citation omitted)); see also State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 258 (1955) (reversing
18
criminal verdict where “the trial judge attempted to chart the course the jury should follow in
search of the truth”). In this case, however, the trial court’s reference to “the manner in which
[the knife] was used” does not amount to a comment on the evidence or imply that the court
believed that the manner of use showed an intent to kill. Moreover, that part of the instruction to
which defendant objects explicitly told the jurors that they were “not required to infer intent to
kill.” Hence, defendant’s claim of error is unlike those in cases in which we have found error in
a permissive inference instruction. See State v. Vuley, 2013 VT 9, ¶ 1, 193 Vt. 622, 70 A.3d 940(reversing conviction because jury instruction did not properly explain doctrine of chances and
did not instruct jury not to use propensity evidence to determine whether defendant was guilty,
both of which were important aspects of trial); Camley, 140 Vt. at 490, 438 A.2d at 1134(holding that it was reversible error to link “not guilty” option to condition that jury find
defendant was acting in self-defense).
IV.
¶ 40. Finally, defendant argues that the trial court committed plain error by instructing
the jury that it could infer an intent to kill from evidence that a deadly weapon was used and the
manner in which it was used, but failing to instruct the jury that it had to find that the basic facts
giving rise to the inference were proven beyond a reasonable doubt. He contends that the court’s
instruction did not require the jury to decide whether a lethal weapon was used or whether such a
weapon was used in a lethal manner, and did not inform the jury in what manner a weapon could
be used to infer an intent to kill. According to defendant, rather than using the vague phrasing
“from the manner in which it was used,” the court should have instructed the jury that it would
first have to find that the State proved beyond a reasonable doubt that defendant used the knife in
a lethal manner. Defendant concedes that he did not object at trial to the permissive inference
instruction on these grounds, but contends that the court committed plain error because the error
was obvious and prejudicial and affected his due process rights.
19
¶ 41. Our plain-error standard is well established:
(1) there must be an error; (2) the error must be obvious; (3) the
error must affect substantial rights and result in prejudice to the
defendant; and (4) we must correct the error if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.
When reviewing possible error in a jury instruction, we examine
the instructions in light of the record evidence as a whole and
determine if any error would result in a miscarriage of justice.
Moreover, we review the instructions in their entirety. If the
charge as a whole is not misleading, there is no plain error. This is
a very high bar—we find plain error only in rare and extraordinary
cases.
State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285 (citations omitted).
¶ 42. We find no plain error here, if any error at all. The jury instructions as a whole
were not misleading, and defendant has not made a showing of any likely prejudicial impact on
the jury’s deliberations. The court did not err by charging the jury that it could, but was not
required to, infer an intent to kill from the manner in which the deadly weapon was used. See
State v. Fucci, 2015 VT 39, ¶ 13, 198 Vt. 482, 117 A.3d 419 (“It is elementary that a defendant’s
intent may be inferred from the nature of his acts.”). The court specifically told the jury that it
had to find each essential element beyond a reasonable doubt in order to convict:
The State must prove each of the essential elements of this
offense beyond a reasonable doubt. If in your judgment the State
has failed to prove any one essential element, you must find the
Defendant not guilty. However if you find the State has proved
each essential element beyond a reasonable doubt, you must find
the Defendant guilty.
Further, the court instructed the jury that it “should [weigh] all of the surrounding facts and
circumstances established by the evidence to determine whether the State has proved that
[defendant] intended to kill [the victim].” Multiple witnesses, including the surgeon who treated
the victim, testified that the stab wound was so deep that the victim’s intestines began to spill
out. The trauma surgeon further testified that the victim was stabbed in a vital area with “a
relatively strong force” sufficient to cut through the multiple layers of muscles and fasciae
20
surrounding the intestines. Thus, the jury had sufficient evidence from which to infer an intent to
kill on the part of the assailant. Cf. State v. Johnson, 2013 VT 116, ¶ 29, 195 Vt. 498, 90 A.3d
874 (holding that two-inch laceration on neck exposing victim’s trachea “was sufficiently serious
as to prove specific intent to kill”).
Affirmed.
FOR THE COURT:
Chief Justice
¶ 43. ROBINSON, J., dissenting. I agree with the majority’s conclusion that the trial
court erred in excluding the officer’s testimony regarding what Chad Limoge said to him when
Limoge called to report that defendant had committed the crime. But I do not agree that the error
was harmless. The State’s evidence was far more equivocal than acknowledged by the majority,
and the jury could have assigned more probative value to the excluded evidence than the
majority has. Properly applying harmless-error review to the evidence in this case, I cannot join
the majority’s conclusion that the trial court’s evidentiary error in this case was harmless.
I. Harmless-Error Review
¶ 44. Harmless-error review requires more searching consideration of the strengths and
weaknesses of the State’s case than the majority has undertaken here, and we should be
especially cautious in reviewing for harmless error the erroneous exclusion of impeachment
evidence undermining the credibility of the State’s key witness or witnesses.
¶ 45. In State v. Carter, this Court considered the harmless error standard in depth. 164
Vt. 545, 552, 674 A.2d 1258, 1263 (1996). We first noted that “[t]he basic premise that errors
must have some relation to the outcome of a criminal case, or some independent right of the
defendant, before appellate intervention is warranted is stated in both the criminal and evidence
21
rules.” Id. (citing V.R.Cr.P. 52(a); V.R.E. 103(a)). In short, there must be “some relationship
between the error and the outcome.” Id. at 552, 674 A.2d at 1264.
¶ 46. Reviewing our harmless-error caselaw, this Court noted that until the late 1960s,
it was rare for the Court to affirm a criminal conviction by holding that an error was harmless,
and that generally the Court did so only “where there was no possibility that the error could have
affected the conviction.” Id. at 552-53, 674 A.2d at 1264. More recent cases, on the other hand,
were not consistent with respect to the applicable standard, and were difficult to reconcile. Id.Accordingly, the Carter Court sought to clarify the standards for harmless error.
¶ 47. The Court concluded that error, whether characterized as constitutional or
nonconstitutional, is harmless “only if the appellate court can state ‘a belief that it was harmless
beyond a reasonable doubt.’ ” Id. at 553, 674 A.2d at 1264-65 (quoting Chapman v. California,
386 U.S. 18, 24 (1967)). We noted that this standard is “most consistent with the standard of
proof in criminal trials and thus accords the greatest deference to the jury as trier of fact.” 164
Vt. at 556, 674 A.2d at 1266. This Court emphasized that “we must approach harmless error
arguments cautiously.” Id. at 556-57, 674 A.2d at 1266.
¶ 48. The next leading case involving our harmless error standard is State v. Lipka, 174
Vt. 377, 817 A.2d 27 (2002). In Lipka, the trial court erred by allowing a child witness to testify
sitting at a table in front of the jury, with her back to the defendant. In assessing whether the
error was harmless, this Court considered whether it could say beyond a reasonable doubt that a
jury would have convicted if the child had not testified at all. We identified the “two most
important factors in the harm equation” as “the strength of the prosecution’s case without the
offending evidence and the strength of the offending evidence.” Id. at 385, 817 A.2d at 34.
¶ 49. We noted that “it is important to understand that it is not the role of this Court to
determine whether [a] defendant is guilty,” and quoted Chief Judge Harry Edwards of the U.S.
Court of Appeals for the District of Columbia Circuit, who cautioned against the seductiveness
22
of relying on the harmless-error rule where “a defendant’s conviction appears well justified by
the record.” Id. (quoting H. Edwards, To Err is Human, But Not Always Harmless: When
Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1170 (1995)). Judge Edwards
explained, “[W]e have applied the harmless-error rule to such an extent that it is my impression
that my colleagues and I are inclined to invoke it almost automatically where the proof of a
defendant’s guilt seems strong.” Edwards, supra, at 1170. Accordingly, the Lipka Court noted
that the issue is not “what we would do if we were the factfinder,” but rather “what the jury
might have done without the offending evidence.” 174 Vt. at 385, 817 A.2d at 34.
¶ 50. In conducting its harmless-error review in Lipka, this Court noted that “[a]t base,
this was a classic swearing contest.” Id. Considering the evidence introduced at trial in detail,
and the impact of the erroneously allowed testimony, the Court concluded that it could not say
beyond a reasonable doubt that the jury would have convicted the defendant had the improperly
admitted evidence been excluded. Id. at 389, 817 A.2d at 37.
¶ 51. Since Lipka, this Court has examined a number of cases in which admission of
evidence in error was not harmless due, in part, to the central role of a witness’s credibility to the
State’s case. For example, in State v. Hazelton, 2006 VT 121, 181 Vt. 118, 915 A.2d 224, a
sexual-assault case, the jury heard two competing versions of events, one told through the
complainant’s testimony and another told through defendant’s testimony. The case essentially
boiled down to a credibility contest. This Court concluded that the trial court erred in permitting
prior consistent statements of the complainant introduced through the investigating officer and
the complainant’s grandmother. Id. ¶¶ 3-14. In concluding that the error was not harmless, this
Court noted
With credibility being the key ingredient in this swearing contest
between complainant and defendant, and absent any independently
corroborating evidence of the assault, we cannot avoid a
conclusion that it was reasonably possible, as intended, that the
23
erroneously admitted testimony influenced the jury’s decision to
believe [the complainant].
Id. ¶ 20. The defendant’s convictions were therefore reversed and remanded. Id. ¶ 22.
¶ 52. Other cases include State v. Groce, 2014 VT 122, ¶ 20, 198 Vt. 74, 111 A.3d
1273 (holding admission of defendant’s friend’s statement regarding friend’s belief that
defendant could commit crime not harmless error where “[w]itness statements played a
substantial role in supporting the jury verdict, making witness credibility of paramount
importance”); State v. Madigan, 2015 VT 59, ¶ 33, __ Vt. __, 122 A.3d 517 (concluding
improper admission of testimony concerning witnesses’ reputation for truthfulness was not
harmless where witness’s credibility was critical to State’s case); and State v. Blair, 155 Vt. 271,
276, 583 A.2d 591, 594 (1990) (holding that where credibility of witness was at issue in sexual-
assault case, Court could not say “that a third party’s opinion of the credibility of the victim
could not have tipped the scales such that [the] defendant would have been acquitted”).
¶ 53. Moreover, in a case more squarely on all fours with this one, we recognized the
particular harm of an erroneous ruling that excludes evidence offered by a criminal defendant to
impeach an important State witness. In State v. Herring, we explained,
Improper exclusion of evidence to impeach a key prosecution
witness is a serious error, implicating fair trial rights under both the
United States and Vermont Constitutions. Although our harmless
error analysis is generally identical in constitutional and
nonconstitutional criminal cases, this Court specifically
acknowledged that a trial court’s discretion to restrict the
impeachment of a key prosecution witness with evidence reflecting
on [the witness’s] credibility is limited by the protection afforded
by the Confrontation Clause.
2010 VT 106, ¶ 8, 189 Vt. 211, 19 A.3d 81 (quotations and citations omitted). In considering the
trial court’s refusal to allow a defendant to play a video of the complainant’s prior testimony,
which the defendant hoped to use to impeach the complainant, this Court noted that “[t]he impact
of excluding impeachment evidence is particularly critical where there is no independently
24
incriminating proof beyond a reasonable doubt.” Id. ¶ 10. This Court concluded that although
“[i]n the instant case there was evidence tending to corroborate . . . the complainant’s
testimony,” reversal was nonetheless warranted because this Court could not conclude beyond a
reasonable doubt that “the impeachment evidence erroneously excluded would have had no
impact on the jury’s credibility assessment in this contested case.” Id. ¶¶ 10-11; see also Dionas
v. State, 80 A.3d 1058, 1066 (Md. 2013) (“We have stated frequently that, where . . . the jury’s
assessment of who is telling the truth is critical, an error affecting the jury’s ability to assess a
witness’ credibility is not harmless error.”); State v. Thomas, 308 P.3d 270, 273 (Or. Ct. App.
2013) (concluding that failure to admit relevant impeachment evidence where “evidence was
highly probative of the credibility of the witness . . . whose testimony was the foundation of the
prosecution’s case” was not harmless error); State v. Pradubsri, 743 S.E. 2d 98, 101, 104-06
(S.C. Ct. App. 2013) (holding that trial court’s failure to admit evidence of potential legal
exposure of witness not harmless error because witness’s testimony was essential to State’s
case).
II. Evidence at Trial
¶ 54. With these standards in mind, I review the evidence in this case more closely,
considering evidence supporting the jury’s verdict, as well as evidence that could have supported
a contrary verdict.
A. Disinterested Eyewitnesses to the Assault
¶ 55. The stabbing took place around 2:00 a.m. on January 15, 2012 near the
intersection of Church and King Streets in Burlington. The State’s first witness was a
disinterested observer who was sitting with a friend in her parked car on King Street at the time
of the incident. She heard people arguing and saw a black male round the corner from Church
Street onto King Street with two white men moving towards him. The black male had his hands
up and was backing away from the white males. She heard him say, “I ain’t got your shit.” The
25
black male backed into the middle of the road, and one of the white males leaned in toward the
black man, made a quick swiping motion, and then kept going. The black male stumbled toward
a police vehicle that rounded the corner and asked the police to call an ambulance. The assailant
headed south on Church Street, and his counterpart headed north.
¶ 56. As the witness approached the police car, she heard a different white male tell the
police officer that a black man had committed the stabbing and had gone in a different direction.
At that point she and her friend spoke up and reported what they saw.
¶ 57. This witness described the assailant who advanced on the victim in the road as a
white male with dirty blonde to medium color hair. He was about 5′11″ to 6′, about 160 to 170
pounds, and was wearing a winter beanie-type hat, a zipper hoodie sweatshirt with a white base
and a blue and green plaid square-like pattern above, and jeans. He was in his early to mid-20s,
had a broader chin than the other man who pursued the victim with him, and was “kind of
scruffy.” Although she initially testified that she could not tell whether he had any facial hair,
upon reviewing her prior deposition testimony, she testified that he had a goatee. The witness
testified that her memory of the facial features of the assailant would have been pretty good the
day after these events, but she was unable to identify defendant as the perpetrator in a photo
array that she reviewed the next day. This witness described the second pursuer—the one who
did not lunge at the victim—as around 5′10″ with darker hair and scruffy facial hair. He was
wearing a burnt orange, rusty-colored pullover hoodie.
¶ 58. The second disinterested witness in the car described the assault in similar terms.
She did not get a good look at the assailant, though she confirmed that he was white and thought
he was around 6’ tall. She initially testified that the man who did the stabbing was wearing a
black hoodie, and that his friend had a beanie type winter hat on. Then she acknowledged that in
a prior deposition she had actually testified that the assailant was wearing an “army fatigue coat.”
And, finally, she testified that in preparing for her trial testimony with the State’s Attorney she
26
acknowledged that she may have gotten the information about the army fatigue coat from her
friend, and that she really didn’t know what the assailant was wearing. Like her friend, this
second witness from the car heard somebody telling the police that two black men had assaulted
the victim.
B. Victim
¶ 59. The victim himself testified that after leaving a bar, he passed through a large
crowd on Church Street. Two white men approached him and accused him of grabbing or
smacking the buttocks of one of their female friends. The victim told the white males “I don’t
know what you’re talking about” and kept walking. The two men pursued him, and all three
swore at each other as the victim continued walking. At some point, the victim turned around
and was skipping backwards while moving down the street facing the two white males. He
testified that the taller white male started running towards him. The victim was under the
impression that the two were going to fight. He and the taller white male squared up, when the
victim felt a punch in his stomach. He knelt down to catch his breath and felt a wetness and saw
blood. He yelled “you . . . stabbed me,” and then the two men took off.
¶ 60. The victim testified that the person who stabbed him was one of the two white
men who had been following him since he passed through the crowd outside a bar, not a third
person who came running and stabbed him. He described the assailant as 6′ to 6′1″ tall, but did
not otherwise offer identifying descriptions.
C. Shaun Couture
¶ 61. Shaun Couture was one of the white men pursuing the victim. He testified that on
January 14, 2015, he went out with his cousin Chad Limoge, Limoges’s girlfriend Jessica
Cornell, and another friend, Hannah Yuric. Couture had known each of these people for years.
At the bar, the group ran into their friend Jess Sturtevant, who was with Sarah Giles, defendant’s
27
girlfriend, and defendant. Couture had been introduced to defendant, but did not know his
name. At some point during the evening, Couture’s other friend, Eric Hazen arrived, but
Couture testified that Hazen was not really part of the group. Couture testified that he was
wearing a camouflage jacket with boots that night and a winter hat, but that he lost the hat while
at the bar. He also testified that he was 5′10″ tall.
¶ 62. After the bar closed, the group stepped outside together, intending to get pizza.
Couture testified that at that point a black male walked past and grabbed Limoge’s girlfriend’s
“backside.” Couture confronted the black male (who turned out to be the victim), and Couture
and Limoge and the black male began swearing back and forth. Limoge then took off his jacket
and began shadowboxing with the man. Limoge was wearing a white t-shirt with a design on it
underneath his jacket. The man then tried to punch Limoge, who ducked, resulting in the man
hitting Limoge’s girlfriend instead. The man then took off walking backward, facing Couture
and Limoge, who followed him. As the man walked backward, pursued by Couture and Limoge,
the three swore at each other. Limoge’s girlfriend called him back and he stopped following the
victim, but Couture continued to follow the man, yelling. Couture testified that he rounded a
corner, and no one else was with him at the time. Couture engaged in an argument with the man
from a distance of a car length, but the argument drew to a conclusion and they were walking
their own ways. Then defendant appeared, walked past Couture, and punched the man.
Defendant ran away, and Couture likewise bolted.
¶ 63. Couture returned to Church Street. At that point, he did not know that someone
had been stabbed. On cross-examination, defense counsel asked Couture if he had told Yuric
 Giles testified that she and defendant had broken up a few weeks earlier, that they had
agreed to hang out on the evening in question, that this was the first time they had seen each
other since they had broken up, and that there were romantic feelings between them that evening.
For ease of reference, I describe her as defendant’s “girlfriend,” although I acknowledge that this
moniker may not be entirely accurate, and that this inaccuracy may be relevant to this witness’s
motives.
28
that there had been a stabbing, to which Couture responded no, because at that time he was
unaware that the victim had been stabbed. When police officers arrived and asked Couture what
happened down the street, he told them “nothing” and denied seeing anybody run up and punch
or stab the victim. While Couture was talking with the officers, Limoge approached them
“talking nonsense,” and speaking very loudly. Police approached Limoge to talk to him
separately. By that time, Limoge had put his coat back on.
¶ 64. Couture went to the police station where he was questioned for hours. He did not
tell the police anything because he did not want to “rat” on anybody. Couture left the police
station around five or six in the morning. He was picked up by Limoge, defendant’s girlfriend,
and their friend Sturtevant. While they were driving, and loud enough for the women to hear,
Limoge admonished Couture to “give the person up” and told him to tell the truth. On cross-
examination Couture acknowledged that during this drive Limoge was upset because he thought
he was going to get in trouble. Limoge said to Couture, “You’re going to get me a name because
I’m not going to go to jail” for something Limoge had not done. Couture testified that during
this drive he said nothing from which the women could infer that he was implicating defendant
and the women said nothing to suggest that defendant had done this.
¶ 65. When they arrived at their destination, after the women stepped out of the car,
Couture told Limoge that he knew who had committed the stabbing but he did not know the
person’s name. Limoge then told Couture defendant’s first name. Couture was then driven to
Limoge’s house, where he and Limoge talked about what had happened and then the two passed
out. Couture was with Limoge from the time they left the police station until they went to bed
that night.
¶ 66. Later that day, Couture texted Sturtevant to figure out what to do next, and to find
out defendant’s last name. Portions of their text messages throughout the day were read into
evidence, including a statement from Sturtevant where she wrote, “Hope you’re not mad at me,
29
hope none of you are,” to which Couture responded “I’m not mad, I’m just at your friend’s
boyfriend. I’m not going to jail for him.” Sturtevant replied, “I don’t—I know I don’t want you
to either. I asked [Limoge and his girlfriend] if [they] could stop by to talk to them tonight
because I don’t want you or [Limoge] getting in trouble.” She also directed Couture to a
Facebook page where he could find a picture of defendant. That afternoon, she wrote, “I want to
help you and [Limoge]. I just can’t be brought in the middle. I can’t lose my LNA, I just got it,
you know. But I also don’t want either you in trouble.” Later in the text conversation, Couture
told Sturtevant that he was going to be charged with attempted murder if he did not “give him
up.” Sturtevant told Couture “Okay. Give him up. I mean he fucked up, not you. . . . If you
can please keep me out of it, I’ll get you the pic . . . But stay safe.” Thereafter, Couture
scheduled a meeting with a police officer to relay the information he had been given.
¶ 67. Couture acknowledged that he barely knew defendant, that he was not aware that
defendant had any particular relationship with Limoge’s girlfriend, whom Couture said the black
male had struck, and that prior to the moment that he ran up and punched the black man,
defendant was not involved in the altercation. He also acknowledged that when the police
initially interviewed him, he said that defendant was wearing a white shirt, a blue coat, and a
Yankees or Boston baseball cap.
D. Defendant’s Girlfriend
¶ 68. Defendant’s girlfriend testified that after the group left the bar, she heard
Limoge’s girlfriend shouting that she had been punched. Defendant, Couture, Limoge, Yuric,
and Hazen, all pursued the man who allegedly touched Limoge’s girlfriend. Defendant’s
girlfriend called defendant back, and he returned partway to her, before turning back toward the
commotion and leaving. Shortly after that, she called defendant, who by then was at a friend’s
apartment nearby, and asked whether she could come to the apartment to sober up and figure out
where the other people had gone. She brought Limoge’s girlfriend and Sturtevant with her.
30
¶ 69. When she told defendant that there were officers swarming downtown Burlington,
defendant did not react. Around 3:00 a.m., defendant’s girlfriend, Sturtevant, and Limoge’s
girlfriend went to take Limoge’s girlfriend to the police station. Defendant walked his girlfriend
back to her car, near the scene of the incident. The police questioned defendant’s girlfriend
while she was at the police station. When asked who she was with that evening, she did not
name defendant. When asked if she saw anybody run down the street, she did not name
defendant.
¶ 70. She described the car ride from the police station with Couture, Limoge, and
Sturtevant. She said that Couture was saying that he knew who had done it and that “they were
going to pay for it.” Limoge asked who it was, and Couture wouldn’t say. The men were yelling
and Limoge emphasized that he was the one being told that he had done it. At the end of the
drive, after Sturtevant, Couture, and Limoge got out of the car, Limoge came to her car door and
angrily told her that the guy that she was with was the one who did it and they were going to go
after him and to thank him for making Limoge go back to jail. On cross-examination, defense
counsel asked: “If Mr. Limoge were to say to the police that on the car ride from the police
station . . . he had overheard the girls talking about who had done it and that’s . . . how he learned
about who did the stabbing, would that be accurate?” Defendant’s girlfriend replied, “No.”
¶ 71. After Limoge told her that defendant had committed the stabbing, defendant’s
girlfriend reached out to defendant on Facebook to communicate about what happened in the
early morning hours of January 15, 2012. When she asked defendant about what happened the
prior night, he simply responded “[w]e can talk about it later.” Defendant met with his girlfriend
later in the day, and at that time defendant confessed to stabbing the victim. He explained that he
had been upset because he thought their friend Jess Sturtevant was the one who had been hit in
the face. Defendant repeatedly apologized for what he had done. His girlfriend urged him to
turn himself in.
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¶ 72. Following this exchange, defendant’s girlfriend “defriended” him on Facebook,
and he messaged her to ask why. During the ensuing exchange, she responded that he needed to
turn himself in. He repeatedly said he didn’t do anything, and asked to speak with her in person.
He did not admit through the Facebook conversations to committing the stabbing.
¶ 73. Subsequently, the police contacted defendant’s girlfriend again, and she had
another conversation with them. She agreed to wear a body wire and personally talk to
defendant, but when she did, defendant repeatedly denied stabbing the victim.
¶ 74. Defendant’s girlfriend testified that Couture was wearing a long sleeve black shirt
on the night in question. Although she initially testified that he was wearing a black jacket, upon
refreshing her recollection she did not remember what the jacket was. She said Hazen was
wearing a black jacket and a black hat on backwards. Defendant was wearing a loose-fitting
plaid shirt that she had given him for Christmas over a white undershirt. The plaid shirt was
black, grey, white, and turquoise. She testified that defendant is about 6′ tall.
E. Hannah Yuric
¶ 75. Hannah Yuric’s memory was blurry. She testified that at the time of the fight she
tried to stop Couture from fighting but he pushed her out of the way so he could go fight.
Thereafter, she saw Couture come up in a hurry. He reported to her that somebody had gotten
stabbed down there, and he had to get out of there. Limoge then came running up and she
repeated to Limoge what Couture had said.
¶ 76. During her testimony, Yuric said she saw defendant run down to King Street; she
tried to yell to him but his girlfriend said something like, “He’ll be fine.” She acknowledged that
when she initially gave a statement to the police immediately after the incident she told the
police that she thought the stabber was Limoge and that she did not mention defendant at all that
first night. She acknowledged that she did not remember that it was actually defendant and not
Limoge that went down the street until a year later when she had to give a deposition in this case.
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F. Testimony About Defendant’s After-the-Fact Statements
¶ 77. Around the time of the incident, a friend of defendant’s was at an apartment
where defendant was staying, which was within two blocks of the assault. This witness testified
that defendant arrived at the apartment in the early morning about an hour after she did, and that
he told her he and a couple of other people had confronted a man who had hit a friend in the face.
He reported that the man hit him, and was worried that the altercation might jeopardize his
probation. This witness testified that she believed that defendant was wearing a blue plaid shirt
at the time, although she didn’t remember whether that was because she had actually seen him
wearing the shirt or because everyone was talking about a blue plaid shirt. She testified that he
was not wearing a zip-up hoodie when he arrived at the house.
¶ 78. Another witness, who was a mother figure to defendant, testified that he had
reported to her after the altercation that a fight broke out because a man slapped a woman in the
face and the woman’s boyfriend confronted the man. She testified that defendant said that he
was one of the people who confronted the man, but that he took off once a fight broke out
because he did not want to be picked up for drunk and disorderly conduct because he was about
to get off of probation.
G. Testimony of Various Police Officers
¶ 79. Officer Stewart was in the passenger seat of the police cruiser that first
encountered the incident scene. As the car traveled southbound on Church Street she saw two
males run “with a purpose” across the street from the King Street area heading northeast to the
Superior Court parking lot. Seconds later, the victim flagged the police down. She testified that
when the black male approached her vehicle, his hand covered a portion of his abdomen. After
telling Officer Stewart “they stabbed me,” the man removed his hand, allowing his internal
organs to spill out.
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¶ 80. Officer Stewart described the two men she saw running together from the scene
moments before encountering the victim. She said they were two white males. She testified that
one was wearing hunters orange and white and the other was wearing a hooded sweatshirt or
plaid jacket. She recognized the man wearing plaid from a local business establishment and later
identified him as Eric Hazen. On cross-examination, she acknowledged that if her
communication over the police radio that night described a suspect wearing black, rather than
plaid, her memory might be called into question; however, confronted with evidence suggesting
that she previously described one of the fleeing suspects as wearing black, she firmly maintained
that she recalled that Eric Hazen was one of the fleeing males and was wearing a plaid jacket or
hoodie at the time. The State did introduce testimony from a dispatcher who testified that the log
generated contemporaneous with officers’ reports reflects that Officer Stewart reported that a
suspect was wearing a black jacket.
¶ 81. An officer who responded to the scene moments after the stabbing testified that he
saw someone running away from the site of the stabbing in a camouflage jacket. He later
identified the person as Shaun Couture. The officer did not see anyone else running away from
the scene.
¶ 82. Another officer, Officer Mellis, heard a report that two people were running away
from the scene, and encountered two people arguing in a nearby parking lot. One was Couture
and the other was Yuric. When the pair saw the officer, Couture started to walk away. After the
officer asked Couture what was going on, another male—later identified as Limoge—yelled
“Get off my brother” and began approaching them aggressively. Limoge was wearing a black
jacket that matched the description of one of the fleeing white males that another investigating
officer had given over the radio.
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¶ 83. An officer, who spoke with Eric Hazen after the incident, described Hazen as
being around 5′8″ or 5′9″ with short dark hair and a short full beard. Finally, an officer who
spoke with Limoge after the incident described Limoge as being 5′10″.
III. Application of Harmless Error
¶ 84. With this evidence in mind, I turn to (1) the strength of the State’s case; and (2)
the significance of the excluded evidence.
¶ 85. The above account of the evidence introduce at trial suggests that the State’s case
had significant strengths and weaknesses. On the one hand, Couture, who was present at the
scene, testified that defendant stabbed the victim; defendant’s girlfriend testified that defendant
had confessed to her; and a disinterested witness’s description of the assailant, and most
particularly his plaid outerwear, jibes with witness testimony that defendant was wearing plaid at
the time of the incident. Defendant was seen running toward the scene of the crime moments
before, and, based on his girlfriend’s testimony about the knife in his pocket, had the means to
commit a stabbing. The disinterested witness testified that the perpetrator ran south on Church
Street after the assault, and defendant is the only one of the group who did not return to the area
north of King Street shortly after the attack. This evidence does provide ample support for the
jury’s verdict.
¶ 86. On the other hand, defendant was only one of four men potentially implicated by
the evidence. Based on the testimony, including his own, Couture was almost certainly one of
the two men the disinterested witness saw pursuing the victim. Limoge, Hazen, and defendant
were all seen pursuing the victim prior to the stabbing. A police officer testified that Hazen was
fleeing the scene with Couture immediately after the stabbing, and evidence that an officer
reported a suspect fleeing the scene in a black jacket potentially implicated Limoge, who was
seen wearing a black jacket that night.
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¶ 87. A disinterested witness said the assailant was wearing a white zip-up hoodie with
a plaid design on it, and a beanie-style winter hat. But, although there was evidence that
defendant was wearing plaid that night, the disinterested witness did not identify defendant as the
perpetrator in a photo array the next day. She was never offered a photo array that included a
photo of Hazen, Couture, or Limoge. In addition, defendant’s girlfriend said he was wearing a
plaid shirt rather than a zip-up hoodie, and that defendant was wearing a hat that matched his
shirt. Moreover, a police officer testified that Hazen, who was fleeing the scene with Couture,
was also wearing plaid that night. And, the second witness who watched the scene from inside a
car first testified that the perpetrator was wearing a black jacket. There was some testimony that
Limoge was wearing black, and some that Hazen was wearing black. That witness subsequently
acknowledged that she had previously testified that the perpetrator was wearing camouflage—
which Couture was wearing. She ultimately said she did not know what the perpetrator was
wearing. The link between the testimony of the disinterested eyewitnesses and defendant’s guilt
is vulnerable to challenge on many levels.
¶ 88. Couture testified that defendant was the perpetrator, but his description of how
events unfolded was at odds with that of the disinterested witness and the victim. The victim and
the primary disinterested witness testified that the perpetrator was one of the two men who had
been steadily pursuing the victim—an account at odds with Couture’s testimony that he and
Limoge had pursued the victim, and then Limoge dropped back and defendant appeared at the
last moment and punched the victim. Moreover, Couture had a strong incentive to tell a story
that exonerated him and did not implicate his cousin, Limoge, or his friend, Hazen. In addition,
Couture himself admitted to lying to the police when they initially interviewed him at the scene
and at the police station. And Yuric’s testimony that Couture told her someone had been stabbed
immediately after the incident undermines Couture’s claim that he did not even realize that a
stabbing had occurred until the police told him.
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¶ 89. Finally, defendant’s girlfriend’s testimony that defendant had confessed to her
was damning, but she was unable to get defendant to acknowledge his confession in writing or in
person when she was wearing a wire.
¶ 90. There was no physical evidence, recorded confession, or conclusive video
recording in the case. The police did not recover a weapon (other than a knife they found on
Limoge, which was not linked to the crime by blood or DNA). Instead, this case turned entirely
on the credibility of the various witnesses. Their accounts were substantially incongruent.
Moreover, none of the witnesses implicated defendant in their initial police interviews.
Defendant was only implicated after the others in the social group had a chance to confer with
one another. The record reflects extensive contact and communication among the various
witnesses after their initial police interviews corresponding to a developing collective sentiment
that defendant, and not the others, should be held accountable for the stabbing. The friendship
and familial bonds between Couture on the one hand and Hazen and Limoge on the other,
contrasted with their unfamiliarity with defendant, suggested a motive to pin the blame on
defendant.
¶ 91. In light of the above, the State clearly had sufficient evidence to get to the jury,
but this was anything but an open-and-shut case. The weaknesses in the State’s case were
substantial, and an acquittal would not have been at all surprising. Given this, it would be hard
to conclude beyond a reasonable doubt that additional evidence undermining the State’s case
would not have made a difference.
¶ 92. Against this backdrop, though the excluded evidence may have been only
marginally impactful, it would have reasonably supported defendant’s theory of the case.
Officer Mellis testified that after Limoge, Couture, and Yuric left the police station, he received a
phone call from Limoge. The substance of this conversation was the errantly excluded
testimony. Defense counsel proffered that Officer Mellis would testify that Limoge claimed to
37
have overheard defendant’s girlfriend and Sturtevant talking in the car, and implicating
defendant in the stabbing. However, Couture had already testified that during the drive with
Limoge, Sturtevant, and defendant’s girlfriend, Couture did not disclose that defendant had
committed the crime. Defendant’s girlfriend had testified that the first inkling she got that
defendant was involved in the crime was after the drive when Limoge told her that it was
defendant. The excluded testimony arguably suggested that shortly after the various group
members completed their police interviews, they conferred with one another, and Limoge called
the police and told a bald lie in the process of implicating defendant for the first time. This
evidence could have reinforced the defense theory that the plan to implicate defendant was
concocted by the group of friends and orchestrated by Limoge, after they gave their initial
interviews to the police.
¶ 93. The majority rightly points out that defense counsel set up this theory, including
highlighting Limoge’s untruthfulness when he called the police to identify defendant as the
assailant, in the opening argument, and in cross-examining Couture and defendant’s girlfriend.
But without the excluded testimony to actually close the loop from the opening statement and
cross-examination, establishing as a matter of evidence that Limoge was untruthful in his initial
report to the police, the opening statement and cross-examination were, at best, loose ends that
were never tied up by actual evidence.
¶ 94. The force of this potential evidence is not strong; Limoge himself did not testify,
so he offered no testimony to be impeached. But the evidence indirectly impeached Couture,
defendant’s girlfriend, and arguably Yuric in that Limoge’s lie potentially reinforced the defense
theory that the entire group collaborated to implicate defendant. It’s a theory that is bolstered by
other evidence—including evidence that none of the witnesses implicated defendant in their
initial interviews, Yuric did not recall that it was defendant and not Limoge who went after the
victim until a year later, and defendant was a social outsider to the rest of the group.
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¶ 95. In the context of a case with significant weaknesses that depends almost entirely
on the credibility of the very witnesses whose testimony the defense sought to impeach, I cannot
conclude beyond a reasonable doubt that the erroneously excluded testimony would not have
impacted the jury’s verdict.
¶ 96. I am hereby authorized to state that Justice Skoglund joins this dissent.
Associate Justice
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