Supreme Court of Vermont
State of Vermont v. Joseph Roger Lemay
July 28, 2006180 Vt. 133
Summary
The court held that testimony repeating the children's out-of-court allegations was inadmissible because the statements were made after the alleged motive to fabricate arose and did not qualify as prior consistent statements. The hearsay error was preserved, was not independently justified as an excited utterance, and was not harmless beyond a reasonable doubt because the testimony substantially bolstered the State's case. The court nevertheless held that the remaining evidence was sufficient to support the sexual-assault charge, so it reversed the convictions and remanded for further proceedings.
Holding
- Admissibility of the children's out-of-court statements as prior consistent statements. The statements were inadmissible under the prior consistent statement rule because they were made after the alleged motive to fabricate arose.
- Preservation of the hearsay objection. Defendant preserved the objection because counsel identified the timing problem before trial, the court considered and rejected it, and counsel's later use of the word "hearsay" complied with the court's instructions.
- Alternative admission as excited utterances. The statements could not be admitted as excited utterances because the State did not establish that the children's excitement was caused by the event being described.
- Harmlessness of the hearsay error. The erroneous admission of the hearsay was not harmless beyond a reasonable doubt.
- Sufficiency of the evidence supporting the sexual-assault conviction. The evidence was sufficient for a reasonable jury to find that defendant committed a qualifying sexual act and that at least one such act occurred in Vermont.
Docket 04-493
Cited authorities
- Vermont Rule of Evidence 801(d)(1)(B)
- Rule 801(d)(1)(B)
- Rule 801(d)(1)(B)
- Rule 801(d)(1)(B)
- Rule 103(a)(1)
- Rule 103(a)(1)
- Rule 103(a)(1)
- Rule 803(2)