¶ 1. Defendant Lee. Herring appeals his conviction in Windham District Court for aggravated sexual assault, sexual assault on a minor, and lewd or lascivious conduct with a child. He contends the trial court erred by excluding evidence proffered to impeach the complainant’s credibility, by restricting defendant’s cross-examination of another witness, by admitting evidence to impeach defendant, by excluding evidence of bias and by refusing to grant defendant a continuance. We conclude that in excluding defendant’s impeachment evidence the trial court committed reversible error by violating his right to confront witnesses against him. We vacate the conviction and remand for a new trial.
¶ 2. Defendant was first charged in June 2006 with three counts of aggravated sexual assault under 13 V.S.A. § 3253, two counts of sexual assault on a minor under 13 V.S.A. § 3252, and one count of lewd or lascivious conduct with a child under 13 V.S.A. § 2602. The alleged abuse spanned nearly a decade, beginning when defendant’s daughter was five years old and continuing until she was sixteen. Defendant’s first trial, in February 2008, ended in a hung jury. At his second trial, in December 2008, the jury returned a guilty verdict, and defendant was sentenced to thirty-years-to-life imprisonment. This appeal followed.
¶ 3. Defendant’s primary claim of error concerns a version of the complainant’s narrative in which she vomited profusely when defendant had her drink Alka-Seltzer after forcing her to perform oral sex. At the second trial, the complainant testified that this Alka-Seltzer incident took place in the family home in Windham County. On cross-examination, the defense attempted to introduce a videotaped police interview showing the complainant’s earlier statement to a detective that the Alka-Seltzer incident took place at a hotel in a different county In a bench conference with the trial judge, defendant sought to introduce the prior inconsistent videotaped statement as impeachment evidence. The trial court excluded the impeachment evidence on grounds that it was unduly prejudicial to defendant — the proffering party.
¶ 4. Our standard of review on evidentiary rulings is deferential. The trial court may exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,
¶ 5. Here, the trial court’s ruling was error. Rejecting defendant’s effort to impeach, the court explained to defense counsel that “the prejudice to your client” from the described circumstances underlying the Alka-Seltzer incident “far outweighs the probative value of it.” The ruling stemmed largely from the court’s earlier order, sought by defendant before the first trial, to exclude the State’s evidence of other acts by defendant against his daughter that occurred outside of Windham County. 1 At the bench confer ence, when the State complained about admitting just this incident apart from its entire surrounding circumstances, defendant responded that he had no objection to the jury hearing about the whole episode. Nonetheless, the court remained reluctant to admit evidence already deemed inadmissibly prejudicial had the State offered it. 2
¶ 6. Whatever qualms the trial court may have had about defendant’s risks in his approach to impeaching the complainant, it is not, as a general matter, for the trial court to undermine a defendant’s chosen strategy. As the United States Supreme Court held, “decisions by counsel are generally given effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.”
New York v. Hill,
¶ 7. Considering the full context of defendant’s impeachment strategy, it is not insignificant that in its case-in-chief the State introduced expert testimony to the effect that credibility of sexual assault victims may be enhanced by their recollection of idiosyncratic details associated with their disclosures of abuse. The Alka-Seltzer incident could qualify as such a detail, and inconsistency in such a recollection could objectively reflect poorly on the complainant’s credibility. Absent some explanation by the court to the contrary, the record does not show that evidence of the complainant’s earlier inconsistent version of the Alka-Seltzer incident would have been obviously prejudicial to defendant, rather than shedding doubt on one or both of the complainant’s descriptions of the event. Thus, the prior inconsistent statement appeared relevant on the issue of credibility, despite defendant’s awareness of the potential prejudice. Without a finding that defense counsel’s offer of proof was incompetent, the trial court should have respected defendant’s tactical decision, and his assumption of the risk by waiver on this point, and allowed him to proceed with his evidence.
¶ 8. 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,”
State v. Oscarson, 2004
VT 4, ¶ 30,
¶ 9. In
Covell
we reversed a conviction because the trial court excluded impeachment evidence in a case, like this one, in which “the outcome hinge[d] largely on the credibility of the
witnesses.”
¶ 10. The instant case is more like
Cartee,
where the complainant’s uncorroborated testimony was the only evidence of alleged abuse and “[reasonable doubt about [the complainant’s] believability would have necessarily resulted in an acquittal.”
¶ 11. Credibility is, of course, up to the jury, and it may be that the complainant and her corroborators were entirely believable while defendant was not. This Court cannot, however, know that from this record — just as we cannot 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. As in Cartee, reasonable doubt about the complainant’s testimony could have changed the outcome of the case and, under the circumstances here, the centrality of defendant’s right to confront a witness with a prior inconsistent statement cannot be discounted.
¶ 12. Defendant’s alleged confessions to his sons did not make the trial court’s erroneous exclusion of the videotape testimony harmless. According to the testimony of the complainant’s brothers, defendant asked how they could look at him, “knowing what I’ve done to your sister,” and about “how much detail [they] wanted to know,” while claiming to one “that there was no penetration of any kind, and that ... he would go to his grave with that statement.” The State argues that defendant’s admissions are sufficient to overcome any reasonable doubt and that the jury would have convicted defendant even had the complainant been impeached by her prior inconsistent statements about the idiosyncratic Alka-Seltzer incident.
¶ 13. In prohibiting defendant from presenting the full range of evidence on the Alka-Seltzer incident, the trial court not only blocked an arguably valid tactical decision, but also foreclosed defendant from his constitutional right to confrontation. The trial court erred in excluding the proffered evidence concerning the Alka-Seltzer incident. The ruling was not justified by avoidance of undue prejudice, since it was directly waived by defendant’s own request, and is unexplained by the court in terms of other balancing to exclude relevant evidence under evidentiary Rule 403. Nor is the court’s ruling explained in jurisdictional terms. The right to confront and impeach witnesses, always a linchpin of our criminal process, is most important when the prosecution’s case, as here, essentially depends upon the credibility of a single witness. Because the error cannot be considered harmless beyond a reasonable doubt and is of constitutional dimension, the conviction must be reversed and the case remanded for new trial.
¶ 14. Having disposed of the appeal on confrontation grounds, we need not resolve defendant’s other claims of error.
Reversed and remanded.
Notes
The exclusion order was apparently based on some jurisdictional ground, and the printed case sets forth no rationale for excluding the evidence of uncharged crimes under V.R.E. 404(a) (deeming character evidence generally inadmissible to prove proclivity) or V.R.E. 403 (allowing exclusion of evidence when probative value is outweighed by danger of unfair prejudice). In response to defendant’s appeal, the State posited, without citation to authority or reference to 4 V.S.A. § 436 (creating “[o]ne district court having statewide jurisdiction”), that the district court properly-excluded the evidence of defendant’s sexual assault of his daughter at the motel because of lack of jurisdiction over crimes committed beyond Windham County. The trial court appears to have agreed, without further explanation, that “jurisdictional issues” rendered complainant’s testimony about the Alka-Seltzer incident at the motel inadmissible.
The court suggested, although defendant disagreed, that evidence of one out-of-county episode could set the stage for inquiry into others. Whether this was likely was rendered moot by the court’s ruling.