Volume 154 — Vermont Reports

<bold>1. Evidence — Hearsay — Unavailable as Witness</bold> For purposes of evidentiary rule permitting the introduction of certain hearsay evidence upon a showing of declarant's unavailability, the question of unavailability is of constitutional proportion. U.S. Const. amend. VI; V.R.E. 804(b)(1). <bold>2. Constitutional Law — Confrontation of Witnesses — Generally</bold> The protection provided by the confrontation clause of the Vermont Constitution is of no greater scope than that afforded by the Sixth Amendment to the federal constitution. U.S. Const. amend. VI; Vt. Const. ch. I, art. 10. <bold>3. Constitutional Law — Confrontation of Witnesses — Generally</bold> The right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. <bold>4. Constitutional Law — Confrontation of Witnesses — Exceptions</bold> The rights conferred by the Sixth Amendment are not absolute; an exception to the right of confrontation is made when an unavailable witness has given testimony at a prior proceeding provided the proponent of the hearsay evidence establishes the unavailability of the declarant and satisfies the court that the proffered testimony possesses indicia of reliability sufficient to evaluate the truth of the prior statement. V.R.E. 804(b)(1). <bold>5. Evidence — Hearsay — Unavailable as Witness</bold> A declarant physically present at trial may nonetheless qualify as unavailable for purposes of exceptions to hearsay rule by refusing to testify despite a court order to do so. V.R.E. 804(a)(2). <bold>6. Witnesses — Immunity — Generally</bold> The power to grant a witness immunity lies exclusively within the discretion of the attorney general and the state's attorneys. <bold>7. Constitutional Law — Confrontation of Witnesses —</bold> <bold>Cross-Examination</bold> There is no obligation under the Confrontation Clause to confer witness immunity in order to secure witness' live testimony at trial. U.S. Const. amend. VI.<page_number>Page 60</page_number> <bold>8. Evidence — Hearsay — Former Testimony Exception</bold> A deposition made outside of a trial setting will be admissible at trial under the prior testimony exception to the hearsay rule if declarant is unavailable and the declarant testified under oath, the testimony was recorded and transcribed, and the defendant had the opportunity to cross-examine the declarant. V.R.E. 804(b)(1). <bold>9. Evidence — Hearsay — Former Testimony Exception</bold> Pretrial deposition of defendant's accomplice in a kidnapping and murder was properly admitted at defendant's kidnapping trial under prior testimony exception to hearsay rule; accomplice defied court order to testify at kidnapping trial, and deposition, which took place at a time when defendant knew he faced charges of kidnapping and murder, was made under oath, was recorded and transcribed, and defendant's counsel cross-examined accomplice. V.R.E. 804(b)(1). <bold>10. Evidence — Hearsay — Former Testimony Exception</bold> For purposes of determining whether prior trial testimony of a now-unavailable witness may be admitted at a defendant's criminal trial, the issues in the first proceeding and hence the purpose for which the testimony was there offered must have been such that the defendant had an adequate motive for testing on cross-examination the credibility of the testimony now offered. V.R.E. 804(b)(1). <bold>11. Evidence — Hearsay — Former Testimony Exception</bold> Where defendant's accomplice in a kidnapping and murder testified at defendant's murder trial but subsequently refused to testify at defendant's trial for kidnapping, his prior testimony was properly admitted under prior testimony exception to the hearsay rule for unavailable declarants; defendant had ample motive to cross-examine accomplice at the murder trial since the same series of events spawned both the murder and kidnapping charges and hence both prosecutions substantially depended on the credibility of accomplice and, further, the record indicated defendant did vigorously cross-examine him. V.R.E. 804(a)(2), (b)(1). <bold>12. Evidence — Accomplices and Co-Conspirators — Admissibility</bold> <bold>of Testimony</bold> Even where an accomplice testifies against a confederate in the hope of personal advantage, accomplice testimony represents admissible evidence regardless of the existence of any other corroboration. <bold>13. Evidence — Hearsay — Former Testimony Exception</bold> In determining whether prior testimony of a now-unavailable witness at defendant's murder trial possessed sufficient indicia of reliability to justify its admission under the prior testimony exception to the hearsay rule in defendant's present kidnapping trial, the Sixth Amendment did not require a particularized search for such indicia of reliability in the testimony itself; rather, the accouterments of the murder trial itself and the motivation it provided defendant to cross-examine witness satisfy requirement of trustworthiness. U.S. Const. amend. VI; V.R.E. 804(b)(1).<page_number>Page 61</page_number> <bold>14. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Object</bold> A claimed error in jury instructions can be raised on appeal only if, after delivery of the charge, the aggrieved party made a specific objection, including a clear statement of the matter to which he objects and the grounds of the objection; this requirement of timely or specific objection gives the trial court an opportunity to correct any error or oversight it may have made in the instructions. V.R.Cr.P. 30. <bold>15. Trial — Instructions — Failure To Request</bold> Claim that trial court should have instructed the jury not to substitute the demeanor of the law clerk who read testimony into the record for that of declarant would not be considered on appeal; defendant did not seek that specific admonition at trial nor did he specifically object on that ground after the court charged the jury. V.R.Cr.P. 30. <bold>16. Trial — Argument of Counsel — Opening and Closing</bold> In closing arguments, counsel may comment only on the evidence of the case and the inferences properly drawn from it. <bold>17. Trial — Argument of Counsel — Closing Argument</bold> Trial court properly restrained defense counsel from commenting in his closing argument that jury should not ascribe the demeanor of the law clerk, who read into the record at trial a now-unavailable declarant's prior testimony, to the demeanor of declarant; since declarant did not testify before the jury, his demeanor was not relevant, probative evidence upon which defense counsel could comment. <bold>18. Witnesses — Cross-Examination — Discretion of Trial Judge</bold> When a witness gives an unresponsive answer, the appropriate remedy lies within the discretion of the trial judge; the trial court's decision will stand on appeal unless the court's discretion was either totally withheld or exercised on ground clearly untenable or unreasonable. <bold>19. Trial — Mistrial — Discretion of Court</bold> Motions for mistrial are committed to the sound discretion of the trial court and should not be granted unless the moving party demonstrates prejudice; the trial court's decision will stand on appeal unless the court's discretion was either totally withheld or exercised on grounds clearly untenable or unreasonable. <bold>20. Trial — Mistrial — Particular Cases</bold> Trial court's prompt cautionary instruction to the jury to disregard police officer's unresponsive testimony effectively mitigated any prejudice defendant may have initially suffered at kidnapping trial and declaration of a mistrial was therefore not warranted. <bold>21. Evidence — Exclusion — Duty To Obtain</bold> Defense counsel shoulders the responsibility to exclude objectionable testimony.<page_number>Page 62</page_number> <bold>22. Evidence — Admissibility Generally — Discretion of Court</bold> At kidnapping trial, court did not impermissibly burden defendant's right to testify by failing to rule sua sponte that defendant's confession to inmate was inadmissible, where state prosecutor had threatened to call inmate as impeachment witness should defendant take the stand; defense counsel had not objected or motioned for exclusion of inmate's testimony. <bold>23. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> Issue of admissibility of testimony of witness at kidnapping trial was not preserved for appellate review where defense counsel failed to move for exclusion of such testimony before the trial court. <bold>24. Evidence — Past Conduct — Admissibility</bold> Trial court properly denied defendant's motion in limine to exclude defendant's threat to corrections officer that the same fate might befall him as befell defendant's alleged victim, even though the statements could not be used to attack defendant's credibility, where statements could have been relevant for purposes other than attack on defendant's credibility; defendant's right to testify on his own behalf was not unduly burdened even though state indicated it would introduce statements were defendant to take the stand. V.R.E. 404(b), 608(b). <bold>25. Appeal and Error — Discretion of Lower Court — Evidentiary</bold> <bold>Rulings</bold> Evidentiary rulings are not subject to revision unless it clearly and affirmatively appears that the trial court withheld or abused its discretion.

<bold>1. Divorce — Property Settlement — Discretion of Court</bold> Since the discretion accorded to a trial court to distribute marital property is very broad, the court's decision will stand on appeal unless that discretion is erroneously exercised or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence. <bold>2. Divorce — Stipulations — Generally</bold> There is a strong policy in favor of settlement of marital disputes where appropriate. <bold>3. Divorce — Property Settlement — Agreement of the Parties</bold> A pretrial agreement to distribute property is a contract, which the court can set aside only for ground sufficient to set aside a contract; furthermore, such an agreement is presumed to be fair, formal and binding and will not be lightly set aside.<page_number>Page 194</page_number> <bold>4. Divorce — Property Settlement — Agreement of the Parties</bold> A party who seeks to overturn an agreement to distribute marital property must show fraud, unconscionable advantage, impossibility of performance, hampering circumstances beyond the expectations of the parties, collusion, or duress. <bold>5. Divorce — Property Settlement — Agreement of the Parties</bold> Where parties to a divorce executed at time of separation an agreement to distribute marital property in which the marital home was valued at a sum substantially lower than its appraised value at the time of divorce, the agreement, which had been incorporated into the divorce decree, would not be set aside; physical improvements and the passage of time may have accounted for the increase in value and party seeking to have the agreement set aside failed to show it was unfair when made. <bold>6. Divorce — Property Settlement — Agreement of the Parties</bold> Pretrial agreement concerning distribution of marital property incorporated into a divorce decree would not be set aside on basis party seeking to have agreement nullified was under stress at time of agreement; stress accompanies virtually all marital breakups and plaintiff did not allege coercion, fraud or unconscionable advantage. <bold>7. Trial — Conduct of Trial — Order of Reception of Evidence</bold> Under procedural rule giving courts control over the mode and order of interrogation of witnesses and the presentation of evidence, a court may refuse to allow the recall of a witness. V.R.E. 611(a). <bold>8. Trial — Conduct of Trial — Discretion of Trial Judge</bold> Trial court acted within its discretion in denying plaintiff in divorce proceeding an opportunity to reopen his evidence and present testimony on his mental state at time of signing a pretrial agreement concerning distribution of marital property; plaintiff's offer of proof was vague and general and plaintiff had already had a full opportunity to contest the agreement in his testimony. <bold>9. Appeal and Error — Preservation of Questions — Failure To</bold> <bold>Present Below</bold> In appeal from pretrial property distribution agreement incorporated into divorce decree, argument that agreement was ineffective to transfer an interest in land, not raised below, was waived. <bold>10. Divorce — Stipulations — Validity</bold> A stipulation between parties in a divorce action concerning the distribution of marital property is not intended to be a conveyance of land or a contract for the sale of land, and there is no necessity that it meet the requirements of either. <bold>11. Trial — Findings — Necessity</bold> Unless the absence of findings prevents an understanding of the court's decision, the trial court is not required to make findings of fact and conclusions<page_number>Page 195</page_number> of law when none are requested; the court is required to find only those facts essential to the disposition of the issues properly before it. <bold>12. Divorce — Property Settlement — Agreement of the Parties</bold> Trial court in divorce proceeding was not required to make specific findings as to statutory criteria for property settlement or as to value of the parties' assets where the court adopted the parties' pretrial agreement and stated on the record why it followed the agreement. <cross_reference>15 V.S.A. § 751</cross_reference>.

<bold>1. Statutes — Construction and Application — Legislative Intent</bold> When construing a statute, supreme court's primary objective is to effectuate the intent of the Legislature. <bold>2. Statutes — Construction and Application — Legislative Intent</bold> When construing a statute, supreme court begins with the presumption that the Legislature intended statutory language to carry its plain, ordinary meaning. <bold>3. Statutes — Construction and Application — Legislative Intent</bold> Where the meaning of a statute is plain on its face, supreme court will enforce the statute according to its terms, for there is no need for construction; the legislative intent is to be ascertained from the act itself. <bold>4. Taxation — Sales and Use Tax — Taxable Items</bold> Fuel used by a manufacturer is not exempt from sales and use taxation. <cross_reference>32 V.S.A. § 9741</cross_reference>(14). <bold>5. Taxation — Sales and Use Tax — Taxable Items</bold> Woodchips burned to produce electricity at electric generating plant were subject to sales and use taxation regardless of whether they served as a raw material or consumable in the production of electricity. <cross_reference>32 V.S.A. § 9741</cross_reference>(14). <bold>6. Statutes — Construction and Application — Administrative</bold> <bold>Construction</bold> Absent compelling indication of error, the interpretation of a statute by the administrative body responsible for its execution will be sustained on appeal. <bold>7. Taxation — Sales and Use Tax — Taxable Items</bold> Fuel is subject to sales and use taxation without limitation regardless of whether the fuel source could also be characterized as a raw material or consumable. <cross_reference>32 V.S.A. § 9741</cross_reference>(14). <bold>8. Constitutional Law — Taxation — Generally</bold> The proportional contribution clause of the Vermont Constitution and the equal protection clause of the United States Constitution impose the same limits on the state's powers of taxation. U.S. Const. amend. XIV; Vt. Const. ch. I, art. 9.<page_number>Page 333</page_number> <bold>9. Constitutional Law — Taxation — Validity</bold> Two fundamental requirements exist for valid imposition of taxes in Vermont: first, any legislative classification of taxpayers must bear a reasonable relation to the purpose for which it is established; and second, the classification scheme must be fairly and equitably applied among like classes of taxpayers. U.S. Const. amend. XIV; Vt. Const. ch. I, art. 9. <bold>10. Constitutional Law — Taxation — Discrimination</bold> The Vermont and federal constitutions impose no rule of equality of taxation, for reasonable schemes of taxation must have flexibility and variety; as a result, some discriminatory impact is virtually inevitable. U.S. Const. amend. XIV; Vt. Const. ch. I, art. 9. <bold>11. Constitutional Law — Taxation — Classifications</bold> In determining whether a legislative classification of taxpayers violates the Vermont and federal constitutions, the supreme court does not compare legislative purposes, but rather looks for a reasonable relationship between the classification and its purposes. U.S. Const. amend. XIV; Vt. Const. ch. I, art. 9. <bold>12. Constitutional Law — Taxation — Discrimination</bold> Imposition of sales and use tax on woodchips burned to produce electricity at an electric generating plant did not unfairly discriminate against manufacturers who burned their raw materials, since the sales and use tax focused on retail sales, and manufacturers who burned woodchips represented the ultimate users of woodchips as fuel. U.S. Const. amend. XIV; Vt. Const. ch. I, art. 9; <cross_reference>32 V.S.A. § 9741</cross_reference>(14). <bold>13. Constitutional Law — Taxation — Double Taxation</bold> Taxing woodchips burned to produce electricity at an electric generating plant, in addition to taxing the plant's use of electricity it generated, did not amount to impermissible double taxation, since two taxes were imposed on two separate transactions: (1) a tax on the purchase of tangible personal property, woodchips; and (2) a tax on the use of tangible personal property, electricity. U.S. Const. amend. XIV; Vt. Const. ch. I, art. 9; 32 V.S.A. §§ 9741(14), 9773(2). <bold>14. Constitutional Law — Taxation — Double Taxation</bold> Double taxation is not per se unconstitutional where each imposition of a tax is firmly grounded in legislative intent. U.S. Const. amend. XIV; Vt. Const. ch. I, art. 9.