State v. Lamar Scales, 164 A.3d 652

Background

In 2014 defendant Lamar Scales was tried and convicted of three counts of lewd and lascivious conduct based on allegations by K.S. of conduct when she was ages 4–6; she disclosed the abuse at age 12.
The State served an arrest warrant in 2013; at arrest in Pennsylvania Trooper Michael Brown testified defendant first identified himself as "Shahid Nur" and later admitted he was Lamar Scales.
The State gave pretrial notice under V.R.Cr.P. 26 of intent to introduce the Pennsylvania arrest encounter as consciousness-of-guilt evidence; the trial court admitted the trooper’s testimony.
Defense requested a detailed limiting instruction explaining the limited probative value of consciousness-of-guilt evidence and that it cannot alone sustain a conviction; the court refused and gave a shorter instruction.
In closing, the prosecutor called the defense "smoke and mirrors," referenced voir dire statements outside the record, and urged jurors to "put yourself in the eyes of" the 12‑year‑old victim (a "golden rule" appeal).
The Vermont Supreme Court reversed and remanded, concluding the consciousness-of-guilt evidence was improperly admitted and the prosecutor made improper appeals to juror sympathy; the admission error was not harmless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Pennsylvania arrest conduct as consciousness-of-guilt evidence	The trooper's testimony that defendant used an alias shows attempted evasion and consciousness of guilt.	The alias use was ambiguous, longstanding, and unrelated to the Vermont charges seven years earlier; thus not probative and unduly prejudicial.	Reversed: evidence lacked probative value because conduct was ambiguous, remote in time, and not shown to relate to the Vermont warrant.
Requested limiting instruction on consciousness-of-guilt evidence	N/A (State opposed admission but relied on evidence)	The instruction was necessary to warn jury that such evidence has limited value and cannot alone sustain conviction.	Reversed: trial court should have given the requested limiting instruction; refusal compounded prejudice.
Prosecutor misconduct — "golden rule" and disparaging defense	Prosecutor argued jurors had said in voir dire they could convict on a child's word and urged jurors to imagine the child's difficulty testifying; also called defense "smoke and mirrors."	Defense objected to some remarks; some objections were preserved, others not.	Prosecutor committed a reversible "golden rule" violation by asking jurors to place themselves in the victim's position; disparaging remarks were improper but not alone dispositive.
Harmless-error analysis of consciousness-of-guilt admission	N/A	The error was harmless because other evidence (victim testimony, corroboration) supported conviction.	Not harmless: the consciousness‑of‑guilt evidence was prominent, the victim's testimony was remote and inconsistent, and the instruction error meant prejudice was not cured.

Key Cases Cited

State v. Unwin, 139 Vt. 186 (recognizing limited probative value of consciousness-of-guilt evidence)
State v. Perrillo, 162 Vt. 566 (evidence of flight is ambiguous and requires multiple inferential steps)
State v. Lipka, 174 Vt. 377 (State must show how proffered evidence is relevant to disputed elements and not substantially outweighed by prejudice)
State v. Giroux, 151 Vt. 361 (flight evidence has very limited probative value; instruction guidance)
State v. Winter, 162 Vt. 388 (admissibility limits for consciousness-of-guilt evidence)
State v. Francis, 151 Vt. 296 (condemns disparaging characterization of defense in closing)
State v. Lapham, 135 Vt. 393 (arguments must be confined to evidence and proper inferences)
Duchaine v. Ray, 110 Vt. 313 (early condemnation of asking jurors to put themselves in victim's position)
State v. Madigan, 199 Vt. 211 (improper appeals to juror sympathy exceed bounds of fair argument)