State v. Gorton, 548 A.2d 419 (Vt. 1988). · Go Syfert
State v. Gorton, 548 A.2d 419 (Vt. 1988). Cases Citing This Book View Copy Cite
88 citation events (24 in the last 25 years) across 24 distinct courts.
Strongest positive: State v. Dimick (vt, 2001-12-26)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) State v. Dimick (2×) also: Cited as authority (quoted)
Vt. · 2001 · quote attribution · 2 verbatim quotes · confidence high
this court has never previously held that the vermont constitution mandates tape-recording of a suspect's voluntary statements as a requirement of due process, nor does our reading of the vermont constitution find any support for defendant's position.
discussed Cited as authority (rule) State of Iowa v. Gabriel Avila
Iowa Ct. App. · 2014 · confidence medium
In light of this case law and the absence of an Iowa statute addressing this issue, we decline Avila’s invitation.7 See, e.g., State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa Supreme Court precedent.”); State v. Cook, 847 A.2d 530, 546-47 (N.J. 2004) (noting the considerations regarding electronic recording “are important and nuanced, and should be addressed in a context broader than that permitted in any one criminal appeal”); State v. Gorton, 548 A.2d 419, 422 (Vt. 1988) (“In the absence of 7 In any event, under these circumsta…
discussed Cited as authority (rule) State v. Blair
Mo. Ct. App. · 2009 · confidence medium
A majority of state courts that have considered this issue have refused to find that a defendant’s constitutional rights were violated when the police fail to record an interrogation or to create an exclusionary rule suppressing these statements when they are not recorded. 1 See People *52 v. Holt, 15 Cal.4th 619 , 63 Cal.Rptr.2d 782 , 937 P.2d 213, 241-42 (1997); Starks v. State, 594 So.2d 187, 196 (Ala.App.1991); People v. Raibon, 843 P.2d 46, 48-49 (Colo.App.1992); State v. James, 237 Conn. 390 , 678 A.2d 1338, 1357-58 (1996); Coleman v. State, 189 Ga.App. 366 , 375 S.E.2d 663, 664 (1988)…
discussed Cited as authority (rule) State v. Turner
Wash. Ct. App. · 2008 · confidence medium
See People v. Holt, 15 Cal. 4th 619 , 937 P.2d 213, 242 , 63 Cal. Rptr. 2d 782 (1997); People v. Casias, 59 P.3d 853, 857 (Colo. 2002); State v. James, 237 Conn. 390 , 678 A.2d 1338, 1360 (1996); Coleman v. State, 189 Ga. App. 366 , 375 S.E.2d 663, 664 (1988); State v. Kekona, 77 Haw. 403 , 886 P.2d 740, 746 (1994); State v. Rhoades, 119 Idaho 594 , 809 P.2d 455, 462 (1991); Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. Ct. App. 2005); State v. Morgan, 559 N.W.2d 603, 609 (Iowa 1997); State v. Speed, 265 Kan. 26 , 961 P.2d 13, 24 (1998); Brashars v. Commonwealth, 25 S.W.3d 58, 63 (Ky. 2000); St…
discussed Cited as authority (rule) State v. Turner
Wash. Ct. App. · 2008 · confidence medium
See People v. Holt, 15 Cal.4th 619 , 63 Cal.Rptr.2d 782 , 937 P.2d 213, 242 (1997); People v. Casias, 59 P.3d 853, 857 (Colo. 2002); State v. James, 237 Conn. 390 , 678 A.2d 1338, 1360 (1996); Coleman v. State, 189 Ga. App. 366 , 375 S.E.2d 663, 664 (1988); State v. Kekona, 77 Hawai`i 403, 886 P.2d 740, 746 (1994); State v. Rhoades, 119 Idaho 594 , 809 P.2d 455, 462 (1991); Gasper v. State, 833 N.E.2d 1036, 1041 (Ind.App.2005); State v. Morgan, 559 N.W.2d 603, 609 (Iowa 1997); State v. Speed, 265 Kan. 26 , 961 P.2d 13, 24 (1998); Brashars v. Commonwealth, 25 S.W.3d 58, 63 (Ky.2000); State v. T…
discussed Cited as authority (rule) State v. Cook (2×)
N.J. · 2004 · confidence medium
App.1992); State v. James, 237 Conn. 390 , 678 A. 2d 1338, 1357-60 (1996); Coleman v. State, 189 Ga.App. 366 , 375 S.E. 2d 663, 664 (1988); State v. Kekona, 77 Hawai'i 403 , 886 P. 2d 740, 745-46 (1994); State v. Rhoades, 119 Idaho 594 , 809 P. 2d 455, 462 (1991), cert. denied, 504 U.S. 987 , 112 S.Ct. 2970 , 119 L.Ed. 2d 590 (1992); People v. Everette, 187 Ill.App. 3d 1063, 135 Ill.Dec. 472 , 543 N.E. 2d 1040, 1047 (1989), rev'd on other grounds, 141 Ill. 2d 147 , 152 Ill.Dec. 377 , 565 N.E. 2d 1295 (1990); Stoker v. State, 692 N.E. 2d 1386, 1390 (Ind.Ct.App. 1998); State v. Morgan, 559 N.W. …
discussed Cited as authority (rule) State v. Conger
Minn. · 2002 · confidence medium
People v. Raibon, 843 P.2d 46, 49 (Colo.Ct.App.1992); Coleman v. State, 189 Ga.App. 366 , 375 S.E.2d 663, 664 (1988); State v. Rhoades, 120 Idaho 795 , 820 P.2d 665, 674-75 (1991); People v. Everette, 187 Ill.App.3d 1063 , 135 Ill.Dec. 472 , 543 N.E.2d 1040, 1047 (1989), rev'd on other grounds, 141 Ill.2d 147 , 152 Ill.Dec. 377 , 565 N.E.2d 1295 (1990); State v. Buzzell, 617 A.2d 1016, 1018 (Me.1992); Williams v. State, 522 So.2d 201, 208 (Miss.1988); Jimenez v. State, 105 Nev. 337 , 775 P.2d 694, 696-97 (1989); State v. James, 858 P.2d 1012, 1018 (Utah Ct.App.1993); State v. Gorton, 149 Vt. 6…
examined Cited as authority (rule) Baynor v. State (4×)
Md. · 1999 · confidence medium
See, e.g., People v. Holt, 15 Cal.4th 619, 663 , 63 Cal.Rptr.2d 782, 811 , 937 P.2d 213, 242 (rejecting the defendant's argument that tape recording of statement made during a custodial interrogation is required to ensure fundamental fairness because "a confession may not be the voluntary `product of a rational intellect and a free will,' and the need to test the voluntariness of a confession on the basis of `the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation'") (citation omitted), cert. denied, ___ U.S. ___, 118 S.Ct…
discussed Cited as authority (rule) People v. Fike (2×) also: Cited "see, e.g."
Mich. Ct. App. · 1998 · confidence medium
See, e.g., People v. Raibon, 843 P.2d 46, 49 (Colo.App., 1992); State v. James, 237 Conn. 390, 430-432 , 678 A.2d 1338 (1996); Coleman v. State, 189 Ga.App. 366, 367 , 375 S.E.2d 663, 664 (1988); State v. Kekona, 77 Hawai'i 403, 408-409 , 886 P.2d 740, 745-746 (1994); State v. Rhoades, 121 Idaho 63, 73 , 822 P.2d 960 , 970 (1991); People v. Everette, 187 Ill.App.3d 1063, 1074-1076 , 135 Ill.Dec. 472, 479 , 543 N.E.2d 1040, 1047 (1989); Commonwealth v. Diaz, 422 Mass. 269, 272-274 , 661 N.E.2d 1326, 1329 (1996); State v. Buzzell, 617 A.2d 1016, 1018 (Me., 1992); Williams v. State, 522 So.2d 201…
discussed Cited as authority (rule) State v. Villarreal
Utah · 1995 · confidence medium
People v. Raibon, 843 P.2d 46, 49 (Colo.Ct.App. 1992); see In re R.J.C., 210 Ga.App. 286 , 435 S.E.2d 759, 761 (1993); State v. Rhoades, 119 Idaho 594 , 809 P.2d 455, 462 (1991); People v. Eccles, 141 Mich.App. 523 , 367 N.W.2d 355, 356 (1984); Williams v. State, 522 So.2d 201, 208 (Miss.1988); Jimenez v. State, 105 Nev. 337 , 775 P.2d 694, 696-97 (1989); State v. Gorton, 149 Vt. 602 , 548 A.2d 419, 422 (1988).
discussed Cited as authority (rule) State v. Kekona (2×)
Haw. · 1994 · confidence medium
See People v. Raibon, 843 P.2d 46, 48 (Colo.App.1992), cert. denied, (January 11, 1993); State v. Rhoades, 121 Idaho 63, 73 , 822 P.2d 960, 970 (1991), cert. denied, ____ U.S. ____, 113 S.Ct. 962 , 122 L.Ed.2d 119 (1993); Jimenez v. State, 105 Nev. 337 , 775 P.2d 694, 696 (1989); State v. Spurgeon, 63 Wash.App. 503, 504 , 820 P.2d 960, 961 (1991), review denied, 118 Wash.2d 1024 , 827 P.2d 1393 (1992); Coleman v. State, 189 Ga.App. 366, 366 , 375 S.E.2d 663, 664 (1988); People v. Everette, 187 Ill.App.3d 1063, 1075 , 135 Ill.Dec. 472, 479 , 543 N.E.2d 1040, 1047 (1989); State v. Buzzell, 617 A…
discussed Cited as authority (rule) State v. Scales (2×)
Minn. · 1994 · confidence medium
See also State v. Rhoades, 119 Idaho 594 , 809 P.2d 455, 462 (1991); State v. Gorton, 149 Vt. 602 , 548 A.2d 419, 422 (1988). [4] See State v. Borst, 278 Minn. 388, 397 , 154 N.W.2d 888, 894 (1967). [5] Section 150.3(2) and (3) provide as follows: (2) Violations Deemed Substantial.
discussed Cited as authority (rule) State v. Kilmer
W. Va. · 1993 · confidence medium
See People v. Raibon, 843 P.2d 46, 49 (Colo.App.1992); Coleman v. State, 189 Ga.App. 366 , 375 S.E.2d 663, 664 (1988); State v. Rhoades, 121 Idaho 63, 73 , 822 P.2d 960, 970 (1991), cert. denied,-U.S.-, 113 S.Ct. 962 , 122 L.Ed.2d 119 (1993); State v. Buzzell, 617 A.2d 1016, 1018 (Me.1992); Williams v. State, 522 So.2d 201, 208 (Miss.1988); State v. James, 858 P.2d 1012, 1017-18 (Utah App.1993); State v. Gorton, 149 Vt. 602, 605-06 , 548 A.2d 419, 421-22 (1988); State v. Spurgeon, 63 Wash.App. 503, 504-07 , 820 P.2d 960, 961-63 (1991), appeal denied, 118 Wash.2d 1024 , 827 P.2d 1393 (1992); Ga…
discussed Cited as authority (rule) State v. James
Utah Ct. App. · 1993 · confidence medium
“Although some state legislatures have adopted statutes mandating the recording of such statements, the majority of state courts which have considered this issue in response to a claim of a state constitutional violation have specifically rejected the *1018 Alaska court's conclusion.” Gale v. State, 792 P.2d 570, 588 (Wyo.1990); Jimenez v. State, 105 Nev. 337 , 775 P.2d 694, 697 (1989); State v. Gorton, 149 Vt. 602 , 548 A.2d 419, 421 (1988); People v. Raibon, 843 P.2d 46, 49 (Colo.App.1992).
discussed Cited as authority (rule) State v. Buzzell
Me. · 1992 · confidence medium
See, e.g., Coleman v. State, 189 Ga.App. 366 , 375 S.E.2d 663, 664 (1988); State v. Rhoades, 121 Idaho 63 , 822 P.2d 960, 970 (1991); People v. Everette, 187 Ill.App.3d 1063 , 135 Ill.Dec. 472 , 543 N.E.2d 1040, 1047 (1989); Williams v. State, 522 So.2d 201, 208 (Miss.1988); Jimenez v. State, 105 Nev. 337 , 775 P.2d 694, 696-97 (1989); State v. Gorton, 149 Vt. 602 , 548 A.2d 419, 422 (1988); State v. Spurgeon, 63 Wash.App. 503 , 820 P.2d 960, 963 (1991).
discussed Cited as authority (rule) J.L. v. Miller
Vt. · 1992 · confidence medium
Relying on State v. Gorton, 149 Vt. 602, 606 , 548 A.2d 419, 422 (1988), they contend that the appropriate means of augmenting due process rights is through legislation, and that continued enforcement of the decree by the court violates the separation of powers clause of the Vermont Constitution.
Retrieving the full opinion text from the archive…
State of Vermont
v.
Roger Gorton, Jr.
86-124.
Supreme Court of Vermont.
Apr 29, 1988.
548 A.2d 419
Kurt M. Hughes, Chittenden County Deputy State’s Attorney, Burlington, for Plaintiff-Appellee., Martin and Paolini, Barre, for Defendant-Appellant.
Allen, Peck, Gibson, Dooley, Mahady.
Cited by 41 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 69%
Citer courts: Supreme Court of Vermont (1)
Gibson, J.

Defendant was convicted of sexual assault in violation of 13 V.S.A. § 3252(1)(A). We affirm.

Viewed in the light most favorable to the prevailing party, State v. Jaramillo, 140 Vt. 206, 208, 436 A.2d 757, 759 (1981), the record reveals the following relevant facts. At two o’clock in the morning of July 2, 1985, a Burlington police officer responded to a sexual assault complaint. The complainant gave a statement naming defendant as her assailant and describing how the alleged assault had occurred. The officer took complainant to a hospital where a physician treated her and collected physical evidence to send to the state police laboratory. The complainant later showed the police officer the site of the alleged assault. An examination of the site produced a leather belt, which was draped over a tree; nearby on the ground lay complainant’s undergarments. Police also found a brown leather wallet containing five pieces of identification belonging to defendant. The officer then brought complainant to the police department where he tape-recorded complainant’s version of the events leading up to and during the alleged assault.

Defendant was subsequently arrested, taken to the police department, and given Miranda warnings. Defendant initialed and signed waivers to his rights, indicating that he understood them. He nevertheless wanted to talk to the investigators. Defendant[*604] then made several inculpatory statements. When defendant was asked to explain the presence of his wallet and belt at the site of the alleged assault, he asked to speak with his mother. After speaking with his mother privately, defendant decided to end the interrogation.

Defendant appeals his conviction and presents three issues for our review: (1) that the trial court committed reversible error by admitting prior consistent statements of the complainant before there had been any attempt to impeach her testimony; (2) that the failure to tape-record defendant’s custodial interrogation violated his due process rights under the Vermont Constitution; and (3) that the trial court committed reversible error when it refused to instruct the jury that it could draw an inference that evidence not presented by a party would be detrimental to that party.

I.

Defendant alleges that the trial court erred in allowing testimony that the statements complainant made to the police officer one hour after the alleged assault were consistent with statements complainant tape-recorded six hours later. As the State’s first witness, the officer who investigated the alleged sexual assault testified, over defendant’s objection, that the recorded and unrecorded versions of complainant’s statement were virtually identical. Defendant argues that the bolstering of a witness’ credibility before it is attacked is prohibited by Woodmansee v. Stoneman, 133 Vt. 449, 344 A.2d 26 (1975).

In Woodmansee, this Court held that statements made prior to trial and offered in corroboration as prior consistent statements were inadmissible hearsay in the absence of an attempt to impeach the witness’ testimony. Id. at 457, 344 A.2d at 30-31. In that case, the State’s principal witness made several statements which in some respects contradicted her previous testimony and in other respects corroborated it. These prior statements were outlined by the State in its opening remarks to the jury and were introduced into evidence during the State’s case-in-chief as prior consistent statements. Defendant objected on the basis of the hearsay character of the testimony, and on appeal, this Court held the admission of the statements constituted reversible error. Id.

[*605] The instant case does not fall within the confines of Woodman-see, however. Here, the State presented no hearsay testimony. The police officer did not testify as to the substance of complainant’s statements. He merely testified that complainant’s recorded statement was the same as her original statement to the police earlier that same morning. Nor did the State comment in any way about the prior statements in its opening remarks. Thus, the instant case is factually dissimilar to Woodmansee.

More significantly, we find the prior-consistent-statement rationale of Woodmansee to be inapplicable to the instant appeal. As previously stated, the officer’s statements were not hearsay, since he did not comment on the substance of the statements themselves, but, rather, testified that the statements were identical. See V.R.E. 801 (definition of hearsay); see also People v. Sanford, 402 Mich. 460, 485, 265 N.W.2d 1, 13 (1978) (officer’s testimony as to identification of defendants by victim not hearsay, because officer was not testifying as to the truth of the identification, but to fact that it was made and the circumstances surrounding it; the admissibility of such evidence lay within the sound discretion of the trial court). Further, we find no abuse of discretion by the trial court in allowing the State to have the police officer testify as to the consistency of complainant’s two statements prior to complainant’s testimony at the trial and prior to defendant’s attempted impeachment of her testimony. [1] See State v. Richards, 144 Vt. 16, 19, 470 A.2d 1187, 1189 (1983) (control over trial conduct and evidentiary rulings lies within wide discretion of the trial court). See also V.R.E. 611(a) (“The court shall exercise reasonable control over the mode and order of interrogating witnesses . . . .”). [2]

II.

Defendant also argues that this Court should interpret Chapter 1, Article 10 of the Vermont Constitution to require police officers to tape-record inculpatory statements that a criminal suspect makes while in custody. Defendant urges this Court to[*606] adopt the ruling in a recent Alaska Supreme Court decision requiring, as a component of due process, that police officers must tape-record a criminal suspect’s statement if circumstances permit. See Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985). Absent a recording of defendant’s statements and absent a finding that a tape recording was not feasible, defendant would have this Court declare the admission of defendant’s statements to be reversible error. This we decline to do. We note initially that the Alaska Supreme Court based its ruling solely upon its interpretation of the Alaska Constitution. Id. at 1160. This Court has never previously held that the Vermont Constitution mandates tape-recording of a suspect’s voluntary statements as a requirement of due process, nor does our reading of the Vermont Constitution find any support for defendant’s position. The most appropriate means of prescribing rules to augment citizens’ due process rights is through legislation. See State v. Felch, 92 Vt. 477, 485, 105 A. 23, 25 (1918). In the absence of legislation, we do not believe it appropriate to require, by judicial fiat, that all statements taken of a person in custody be tape-recorded. It was therefore not erroneous to admit statements defendant made while in custody. See State v. Billado, 141 Vt. 175, 181, 446 A.2d 778, 782 (1982).

III.

Finally, defendant argues that it was reversible error for the trial court to refuse to instruct the jury that an inference could be drawn that evidence not presented by a party would be detrimental to that party. The State produced testimony of the physician who treated complainant that he had forwarded physical evidence to the state police laboratory. The State did not, however, produce the chemist who examined the evidence to testify as to what the examination of the physical evidence revealed. We have previously found that failure to give an instruction similar to that requested by defendant herein did not rise to the level of reversible error. State v. Smith, 145 Vt. 121, 128-29, 485 A.2d 124, 129 (1984). Furthermore, the court did instruct the jury that defendant was entitled to every inference in his favor which reasonably could be drawn from the evidence presented at the trial. We find no abuse of discretion nor any reversible error by the trial court in failing to give defendant’s requested instruction. See id. at 129, 485 A.2d at 129.

Affirmed.

1

Other jurisdictions allow prior consistent statements as corroborative evidence even though the complainant in a rape case has not yet been impeached. See, e.g., State v. Martin, 309 N.C. 465, 475-76, 308 S.E.2d 277, 284 (1983).

2

We also do not find that the actions complained of in the instant case rose to the level of prosecutorial “overkill,” which we have previously held could lead to reversible error. See State v. Zeisner, 133 Vt. 375, 377, 340 A.2d 69, 71 (1975).