State v. HanerState v. Haner
¶ 1. JOHNSON, J. Defendant Harold Haner, Sr. appeals the district court‘s denial of his motion for a new trial. He claims that the district court erred by: (1) refusing to grant use immunity to his brother who had previously made exculpatory statements, and (2) ruling that several proffered documents containing confessions by his brother were inadmissible hearsay. We affirm.
¶ 2. In October 2000, defendant was convicted of aggravated sexual assault on his daughter, A.H. We affirmed the conviction in November 2001. In late February 2002, defendant‘s brother, who was seventeen at the time, went with their mother to the state police and confessed to the crime for which defendant had been convicted-sexually assaulting A.H. in March 1999. Defendant‘s brother then proceeded to write twenty-three letters to various parties, including defendant, expressing his guilt.
¶ 3. In June 2002, defendant filed a motion for a new trial based on newly discovered evidence, attaching a sworn affidavit by his brother that included a confession to the sexual assault. An evidentiary hearing on the motion was held on July 30, 2003. At the hearing, defendant‘s brother testified that he had come to court to confess to a crime that he had committed. He further testified that he had waited so long to come forward because he did not believe his brother could be convicted of a crime he did not commit, and that he had only written a note to their mother confessing to the sexual assault when he feared defendant would go to jail. When defendant‘s brother was asked to provide details about the sexual assault, the court cautioned him against self-incrimination and asked if he wished to speak to an attorney before proceeding. He replied in the affirmative. An attorney was provided to him, and from that point forward he refused to answer questions, invoking his Fifth Amendment right against self-incrimination.
¶ 4. Defendant subsequently filed a motion requesting that the court “use its inherent power to grant use immunity to [his brother] and thus require[] him to testify in the pending motion for a new trial.” The court denied the motion in September 2003. The hearing on the motion for a new trial reconvened in March 2005. Defendant‘s brother again testified that he had previously confessed to sexually assaulting A.H., however, he invoked the Fifth Amendment when asked whether he had actually committed the offense. In support of his motion for a new trial, defendant proffered several sources containing confessions by his brother: statements to the state police; letters written to defendant, A.H., and others; an affidavit; and deposition and hearing testimony predating his invocation of the privilege against self-incrimination. At the court‘s request, the parties filed memoranda addressing admissibility of the proffered evidence under the statement-against-penal-interest exception to the hearsay rule.
¶ 5. Defendant‘s underlying claim on appeal is that the trial court erred in denying his motion for a new trial pursuant to
I.
¶ 6. Defendant first claims that the court erred when it failed “to exercise its inherent power to compel [his brother‘s] testimony through the grant of use immunity.” He argues that our case law supports the judicial authority to grant defense witnesses immunity under circumstances similar to his case. To the extent that Vermont law does not explicitly support his argument for judicial use immunity, he nonetheless claims that defense witness immunity was warranted here to protect his constitutional right, as a criminal defendant, to compel witness testimony in his favor. He urges us to adopt the Third Circuit‘s holding in Government of the Virgin Islands v. Smith that courts have “inherent authority to effectuate the defendant‘s compulsory process right by conferring a judicially fashioned immunity” upon witnesses whose testimony is exculpatory and essential to an effective defense. 615 F.2d 964, 969 (3d Cir. 1980) (quoting United States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979)).
¶ 7. In Vermont, the power to grant witness immunity lies exclusively within the discretion of the prosecutor, and the State is under no constitutional obligation to confer such immunity. State v. Roberts, 154 Vt. 59, 67, 574 A.2d 1248, 1251 (1990);
¶ 8. Defendant claims that his case is sufficiently analogous to two cases in which we recognized an exception to the State‘s discretion under
¶ 9. Nevertheless, defendant argues that the circumstances of his case implicate important public policy considerations and thus warrant an expansion of the exclusionary rule. Without judicial use immunity, he claims, he cannot compel witnesses in his favor and the “fair administration of justice” will be thwarted. Defendant relies solely on the Third Circuit‘s holding in Smith, and urges us to adopt it. 615 F.2d at 969. Smith held that courts have an inherent power to grant witness immunity to vindicate a defendant‘s constitutional right to present exculpatory evidence crucial to his case. Id. Recognizing the potential for judicial use immunity to seriously encroach upon the realm of the executive branch, however, the court emphasized the need for “special safeguards” in determining whether to grant such immunity. Id. at 971-72. As such, barring prosecutorial misconduct, it limited the judicial power to grant defense witness immunity to situations where “the proffered testimony [is] clearly exculpatory; the testimony [is] essential; and there [are] no strong governmental interests which countervail against a grant of immunity.”1 Id. at 972, 974.
¶ 10. The Smith approach, insofar as it does not rely on prosecutorial misconduct, has been uniformly rejected by other federal circuit courts, as well as numerous state courts, that have addressed judicial use immunity. See, e.g., United States v. Mackey, 117 F.3d 24, 28 (1st Cir. 1997) (rejecting Smith and holding that courts generally cannot compel witness immunity where prosecutor has refused to do so); United States v. Herrera-Medina, 853 F.2d 564, 568 (7th Cir. 1988) (same); United States v. Turkish, 623 F.2d 769, 778-79 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981) (same); see also Schoenhaus, supra, ¶ 7. But, we need not reach the question of whether the Smith approach to judicial immunity is a sound one because defendant fails to meet the minimum requirements of that decision. Contrary to defendant‘s assertion that the mere proffer of his brother‘s facially exculpatory testimony triggered the court‘s inherent power to grant defense witness immunity, Smith requires that the defendant “make a convincing showing . . . that the testimony which will be forthcoming is both clearly exculpatory and essential to [his] case” before the court may compel immunity. 615 F.2d at 972. Thus, the court may evaluate the credibility of the proffered evidence, and is not required to simply take it at face value. See United States v. Sampson, 661 F. Supp. 514, 519-20 (3d Cir. 1987) (explaining that application of the “clearly exculpatory” requirement in Smith should include consideration of “the trustworthiness of the evidence that the defendant offers“).
¶ 11. Like the trial court, we are unpersuaded by defendant‘s assertion that his brother‘s statements regarding the sexual assault of A.H. were clearly exculpatory. Defendant‘s daughter alleged that the crime took place in defendant‘s trailer while his wife and other children were asleep in other rooms. Nonetheless, throughout the pretrial investigations and trial, not a single mention was made of the brother‘s potential presence in the trailer at the time of the offense. Defendant‘s son testified that he could not recall defendant‘s brother ever sleeping in his room; however, defendant‘s brother claimed that he slept there on the night of the assault. While A.H. testified that she heard her assailant leave her room through a doorway to the hall and shortly thereafter saw defendant walk into the room, defendant‘s brother claimed that he hid at the foot of her bed as defendant entered the room. Each of these inconsistencies cuts against the trustworthiness of the proffered evidence, and the trial court was justified in considering them.
¶ 12. In addition to these inconsistencies, the circumstances surrounding the confession diminish its credibility. Defendant‘s brother waited until approximately three years after defendant was first accused to come forward with his confession. By that time, defendant‘s appeal had been taken and denied, presenting the opportunity for his brother to tailor his confession to the facts and theories already on the record. See State v. Haner, No. 2000-577, (Vt. Nov. 21, 2001) (unreported mem.). Furthermore, defendant‘s brother acknowledged to the police that he was aware that, as a juvenile, he would be subject to a lesser punishment than defendant. When asked by the police why he waited so long to confess, defendant‘s brother answered that his sister-in-law “was trying to, um, she was the one that was trying to find out what to say, not what to say but um, where to go to report it.” Both the officer who took the statement and the judge who heard the testimony at trial reasonably questioned the credibility of the statement.
¶ 13. Finally, the familial relationship between defendant and his brother calls into question the veracity of any exculpatory statements by defendant‘s brother. See Sampson, 661 F.Supp. at 521 (suggesting that a close relationship between witness and defendant undermines the credibility of the proffered testimony in the Smith “clearly exculpatory” analysis). Particularly given the testimony of a sheriff‘s deputy and intern at the state‘s attorney office, the court had reason to find the confession suspect. The deputy testified that during a July 2003 hearing, she sat behind defendant‘s brother and two women who appeared to be his aunts. She overheard defendant‘s brother tell the women: “We‘ll be all right as long as he doesn‘t do it again when he gets out.” In light of the increased motive of close relatives to fabricate exculpatory evidence, the inconsistencies between the confession and witnesses’ testimony, and the general circumstances surrounding the confession, we agree with the trial court that defendant failed to make a “convincing showing” that the proffered testimony was “clearly exculpatory.” Because defendant failed to meet the first element of the test for judicial use immunity that he advances, the trial court did not err as a matter of law when it declined to grant immunity to defendant‘s brother.
II.
¶ 14. Defendant next asserts that the trial court erred by refusing to admit his brother‘s exculpatory statements into evidence as statements against penal interest.
¶ 15. Under
¶ 16. In its analysis, the trial court found that although defendant established that his brother “had sufficient motive to corroborate his confession,” he could not similarly show an opportunity to commit the crime. Despite defendant‘s contention that he met the corroboration component of
¶ 17. The trial court also properly considered the source of the confession, defendant‘s brother, in determining its trustworthiness. See United States v. Bobo, 994 F.2d 524, 528 (8th Cir. 1993) (asserting that “certain close relationships, such as the sibling relationship, have long been recognized to diminish the trustworthiness of hearsay statements against the declarant‘s penal interest“). Further weighing against the reliability of the confession were the circumstances under which it was made, its inconsistency with other evidence in the record, as well as the suspicious statements made by defendant‘s brother to the police, supra, ¶ 12, and to his two aunts, supra, ¶ 13. Defendant attempts to counterbalance this evidence of the confession‘s noncredibility by arguing that “repetition of hearsay equals corroboration” and that his brother‘s twenty-three letters expressing his guilt therefore provide adequate corroboration for his statements. Defendant, however, misinterprets our decision in State v. Gallagher, in which we upheld a trial court‘s decision to admit hearsay statements made by a child-victim of sexual assault to a teacher and social worker. 150 Vt. 341, 347-48, 554 A.2d 221, 225 (1988). In Gallagher, the trustworthiness of the statements was buttressed by “the internal consistency and detail of the child‘s story, and the child‘s affect, intelligence, memory and concern for the truth.” Id. at 348, 554 A.2d at 225. In that case, there were no indications of untrustworthiness similar to those here. Furthermore, there were different considerations due to the policy underlying
III.
¶ 18. We conclude that the trial court did not violate defendant‘s due process rights by denying his motion for a new trial. Defendant‘s contention that the court “completely shutdown [his] ability to present clearly exculpatory evidence for prosecuting his [m]otion for [n]ew [t]rial based upon newly discovered evidence” is without merit. To the contrary, the trial court made the appropriate legal determination that judicial use immunity was unwarranted both under existing Vermont law and the law advocated by defendant, and properly exercised its discretion in excluding the hearsay statements by defendant‘s brother. As the confession underpinning defendant‘s motion for a new trial was correctly deemed inadmissible due to its unreliability, the court properly dismissed the motion. See Irving, 172 Vt. at 528, 768 A.2d at 1289 (holding that we will reverse a trial court decision on a motion for new trial only for abuse of discretion). Defendant could not succeed on the motion for a new trial, as the newly discovered evidence (which properly excluded the substance of the confession) was unlikely to change the result on retrial, and therefore the trial court did not abuse its discretion in denying the motion. See Palmer, 169 Vt. at 640, 740 A.2d at 359 (stating that motion for new trial is granted only if circumstances meet a stringent test, including whether the evidence is likely to change the result on retrial).
Affirmed.
FOR THE COURT:
_______________________________________ Associate Justice