State v. Gregory Manning, 177 A.3d 513

Background

Defendant, a trusted employee of Corner Stop Mini Mart, was responsible for some after-hours bank night deposits; four deposits totaling over $10,000 (Oct 26, Nov 27, Dec 14, Jan 2) were missing and defendant worked those shifts.
Bank internal video showed defendant approaching the night depository on three occasions and appearing to pantomime deposits but then leaving the bags or putting them in his coat; one daytime interior bank camera recording that might have shown him depositing with a teller was not preserved.
Defendant requested the bank preserve certain interior camera footage; bank said videos could not be provided without a subpoena; defendant never served a subpoena and was not charged until months later.
At trial the State relied on night-deposit footage and testimony about the interior footage (officer testified he did not see defendant give a deposit to a teller); defense objected to testimony about unpreserved interior footage and argued improper preservation by the State.
Jury convicted defendant of embezzlement; defendant moved for acquittal/new trial arguing State’s failure to preserve potentially exculpatory interior video violated due process; court denied motion and sentenced him to 1–5 years (30 days to serve) with a probation condition requiring completion of a Restorative Justice Program.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether State’s failure to preserve interior bank camera footage violated due process under Bailey/Delisle	State: no due process violation because defendant failed to show a reasonable possibility the lost footage would be exculpatory and other evidence was strong	Defendant: lost interior footage may have shown he deposited with a teller; thus loss denied him potentially exculpatory evidence requiring dismissal or sanction	Court: No due process violation — defendant failed to show a reasonable possibility footage would be exculpatory given clear night-deposit videos and other evidence of guilt
Whether prosecutor’s closing argument improperly shifted burden to defendant to preserve evidence	State: argument at most suggested defense could obtain videos and was responsive to defense argument about investigation	Defendant: prosecutor suggested defendant bore burden to subpoena videos and disparaged his defense	Held: Comments went too far in disparaging defense and suggested burden-shifting, but error was harmless given overwhelming evidence of guilt
Whether prosecutor impermissibly impugned defense in closing	State: closing was fair commentary on evidence and defense strategy	Defendant: prosecutor’s “squirrel”/“hot air” remarks disparaged defense and risked prejudice	Held: Remarks improper but not prejudicial; conviction stands
Whether sentencing condition requiring completion of Restorative Justice Program was an abuse of discretion given defendant’s maintained innocence	State: condition reasonably relates to crime (breach of trust) and aids rehabilitation	Defendant: program likely requires admission of guilt, making compliance impossible while maintaining innocence	Held: Condition was within court’s discretion; appropriate given restorative goals and facts; no Fifth Amendment claim pursued here

Key Cases Cited

State v. Bailey, 144 Vt. 86, 475 A.2d 1045 (established three-part test for sanctions when government loses potentially exculpatory evidence)
State v. Delisle, 162 Vt. 293, 648 A.2d 632 (reaffirmed Bailey standard and described pragmatic balancing of negligence, importance, and other evidence)
State v. Madigan, 199 Vt. 211, 122 A.3d 517 (prosecutorial argument must confine to evidence and proper inferences)
State v. Lumumba, 197 Vt. 315, 104 A.3d 627 (sentencing requires individualized consideration)
State v. Moses, 159 Vt. 294, 618 A.2d 478 (probation conditions may reasonably relate to the crime or aid in avoiding criminal conduct)
State v. Gates, 141 Vt. 562, 451 A.2d 1084 (improper argument alone insufficient to overturn conviction absent prejudice)
State v. Rehkop, 180 Vt. 228, 908 A.2d 488 (prosecutorial opinion statements condemned as carrying undue weight)
State v. Cate, 165 Vt. 404, 683 A.2d 1010 (protections when probation conditions require admissions that could be used in later prosecutions)