State v. Gomes

State v. Gomes  (96-123); 166 Vt. 589; 690 A.2d 351

[Filed 6-Aug-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 96-123

                              APRIL TERM, 1996


State of Vermont           }                 APPEALED FROM:
                           }
                           }                 District Court of Vermont
         v.                }                 Unit No. 2, Chittenden District
                           }
                           }                 DOCKET NOS. 5974/5975/5977/
David L. Gomes             }                             5978-12-94CnCr


       In the above-entitled cause, the Clerk will enter:

       The State of Vermont moves for reinstatement of defendant's
  convictions for lewd and lascivious conduct with a child, 13 V.S.A. § 2602,
  which this Court previously reversed and remanded.  State v. Gomes, 162 Vt.
  319, 331, 648 A.2d 396, 405 (1994) (Gomes I).  The State's motion arises
  from the district court's ruling that it was unable to comply with our
  mandate on remand that it determine whether defendant's rights at trial had
  been prejudiced because he was denied access to certain records the
  district court had determined were protected under the Fifth Amendment
  privilege against self-incrimination.  Because we now conclude that the
  records defendant sought were not subject to the required-records exception
  to the Fifth Amendment privilege against self-incrimination, we remand to
  the district court with an instruction to reinstate defendant's
  convictions.

       The district court has certified the following question to us, which
  establishes the relevant factual background:

      On August 5, 1989, the defendant was convicted of four counts of
    Lewd & Lascivious Conduct with a Child.  The convictions were for
    conduct at a day care center sometime during the summer of 1985
    through the summer of 1986.  Prior to trial, the defendant sought the
    day care center's attendance records in hopes of developing exculpatory
    evidence to support his alibi defense and material to impeach the
    credibility of witnesses.  The trial court ruled the records were
    protected by the privilege against self-incrimination and denied the
    defendant access to them.  On appeal, the Supreme Court held that the
    trial court's ruling was erroneous.  The Supreme Court reversed the
    convictions and remanded with instructions to the trial court to examine
    the day care attendance records.  The records cannot be produced or
    recreated.

      On remand upon the defendant's motion the trial court judge
    recused himself from the case.  Under these circumstances, and based
    upon the record including all evidence developed since remand, is the
    defendant entitled to a new trial?

 

       In Gomes I, we held that the day-care attendance records fell within
  the "required records" exception to the Fifth Amendment privilege.  Id. at
  328, 648 A.2d  at 403.  We based our holding on a state regulation requiring
  day-care operators to maintain daily attendance records and make them
  available for state inspection.  See id. at 323, 648 A.2d  at 400
  (referencing Agency of Human Services, Department of Social and
  Rehabilitation Services (SRS), Children's Day Care Licensing Regulations
  for Early Childhood Program § 3(5), (7), in 4 Code of Vermont Rules 13 162
  001-49 (1993)).  We were, however, "unable to determine whether defendant
  was actually prejudiced" by the denial of access to the records.  Id. at
  328, 648 A.2d  at 403. Consequently, we remanded the cause to the district
  court with an instruction to determine whether defendant had been
  prejudiced by denial of access to the day-care attendance records. Id. at
  331, 648 A.2d  at 405.  If the district court concluded that no prejudice
  had resulted, it could reinstate the conviction and sentence; otherwise,
  defendant required a new trial.  Id.

       On remand, the district court discovered for the first time that the
  day-care operators had not been required by SRS regulation to maintain
  daily attendance records during 1985 and 1986, and that no such records had
  in fact been maintained.  The parties now acknowledge that the SRS
  regulation upon which this Court relied for its "required records" analysis
  was not in effect until 1993.

       As we noted in Gomes I, the so-called "required records" exception to
  a claim of privilege against self-incrimination applies when the following
  criteria are met:

          (1) the purpose of the recordkeeping is essentially regulatory rather
          than criminal; (2) the records contain the type of information that
          the regulated party would ordinarily keep; and (3) the records have
          assumed "public aspects" that render them at least analogous to
          public documents.

  Id. at 325, 648 A.2d  at 401.  The first criterion is met when the
  "regulations which require the[] maintenance [of records] are regulatory in
  nature."  In re Underhill, 781 F.2d 64, 67 (6th Cir. 1986).  The second
  criterion is met when a regulation "requires the maintenance of records
  which [a regulated party] would ordinarily keep."  Id. at 68.  The third
  criterion is "met in most cases in which a statute or regulation subjects
  the records to inspection by a federal or state agency."  Gomes, 162 Vt. at
  325, 648 A.2d  at 401.  In Gomes I, the State conceded the first and second
  criteria, but contested application of the third criterion.  We determined
  that the third criterion did apply because the 1993 SRS regulation, which
  was assumed to have been in effect at all relevant times, provided for SRS
  inspection of day-care attendance records.  Id. at 325-26, 648 A.2d  at
  401-02.

       It is now apparent, with respect to the 1993 SRS regulation, that none
  of the three "required records" criteria applies to the records at issue
  here, because, at the time of the instant offenses, SRS imposed no
  regulatory recordkeeping or record-inspection requirement on day-care
  operators.  Our conclusion in Gomes I that the operators'
  self-incrimination privilege was subject to the "required-records"
  exception was thus based on an error of fact concerning the applicability
  of the 1993 SRS regulation.

 

       We have observed that "on remand the trial court is constrained to
  follow `our specific directions as interpreted in light of the opinion.'" 
  State v. Higgins, 156 Vt. 192, 193, 588 A.2d 1062, 1062 (1991) (quoting
  Coty v. Ramsey Assocs., 154 Vt. 168, 171, 573 A.2d 694, 696 (1990)).  When
  a case is remanded, our decision is the law of the case on the points
  presented throughout all the subsequent proceedings.  Id. at 193, 588 A.2d 
  at 1063.  Nevertheless, departure from the law-of-the-case doctrine is
  warranted "in exceptional circumstances such as where there has been . . .
  a substantial change in the facts or evidence giving rise to the dispute in
  the matter, or where the prior holding was clearly erroneous and would
  create a manifest injustice if followed."  Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995).  In the instant matter, the substantial change in
  the evidence on remand constitutes such exceptional circumstances that
  neither the district court nor this Court is bound by our earlier
  disposition.

       From the evidence adduced by the district court on remand, we conclude
  that the required-records exception is inapplicable to the records sought
  by defendant, and that the district court properly ruled that production of
  any day-care records falls within the day-care operators' privilege against
  self-incrimination.  It is a well-settled proposition that a defendant's
  constitutional rights at trial must yield when they conflict with a valid
  exercise of the Fifth Amendment privilege against self-incrimination. 
  Holbert v. United States, 513 A.2d 825, 827 (D.C. 1986).  Accordingly,
  defendant was not prejudiced by the court's order denying him access to
  privileged records, and the jury verdict must stand.

       Defendant contends, however, that the evidence on remand also
  demonstrated that the day-care operators were subject to a separate
  regulatory recordkeeping requirement, and that the analysis we earlier
  applied to the supposed SRS recordkeeping requirement applies in equal
  measure to the alternate recordkeeping requirement.  We disagree.  On
  remand, the district court considered evidence that, commencing in October
  1985, the operators registered the day-care facility in a federal
  meal-subsidy program administered by the Central Vermont Community Action
  Council (CVCAC), and thereby became subject to CVCAC's daily meal-reporting
  requirement.  The evidence also showed, however, that any meals records the
  day-care operators may have filed had been routinely destroyed by CVCAC
  pursuant to a three-year record-retention policy.

       CVCAC requires recordkeeping by participants in its meals-subsidy
  program under the authority of 7 C.F.R. § 226.18.(FN1)  The federal
  regulation requires participants to "maintain daily records of the number
  of children in attendance and the number of meals, by type, served to
  enrolled children."  Id. § 226.18(e) (emphasis added).  The federal
  regulation does not, however, require program participants to keep daily
  attendance records for each child showing the child's name or the hours the
  child was actually present at the day-care facility.(FN2)  The

 

  recordkeeping requirements of 7 C.F.R. § 226.18 are not sufficiently
  similar to the recordkeeping requirement under the 1993 SRS regulation as
  to allow substitution of one regulatory scheme for the other for the
  purposes of our analysis in Gomes I.

       Defendant also argues that resolution of the CVCAC-records question
  requires analysis under the so-called "lost evidence" factors enumerated in
  State v. Bailey, 144 Vt. 86, 95, 475 A.2d 1045, 1050 (1984).  As we
  observed in Bailey, however, "`[L]ost evidence cases are essentially
  permutations of failure-to-disclose cases,' and derive from principles
  developed in Brady [v. Maryland, 373 U.S. 83 (1963)]."  Id. at 94, 475 A.2d 
  at 1050 (quoting Armstrong v. Collier, 536 F.2d 72, 77 (5th Cir. 1976)). 
  As a threshold matter, "[a] finding of materiality of the evidence is
  required under Brady."  Giglio v. United States, 405 U.S. 150, 154 (1972);
  see Brady, 373 U.S.  at 87 (suppression of exculpatory evidence by
  prosecutor violates due process only "where the evidence is material either
  to guilt or to punishment").  Where, as here, we have determined that the
  missing CVCAC records would not have been material at trial or at
  sentencing, we need not engage in the "pragmatic balancing" enunciated in
  Bailey.  144 Vt. at 95, 475 A.2d  at 1050.

       The question certified is answered in the negative; the State's motion
  for reinstatement is granted; cause remanded to the district court with
  instructions to reinstate the orders of conviction and imposition of
  sentence.


                             BY THE COURT:

                             ____________________________________________
                             Frederic W. Allen, Chief Justice

                             ____________________________________________
                             Ernest W. Gibson III, Associate Justice

                             ____________________________________________
                             John A. Dooley, Associate Justice

                             ____________________________________________
                             James L. Morse, Associate Justice

                             ____________________________________________
                             Denise R. Johnson, Associate Justice



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                                  Footnotes



FN1.  Although it is unclear whether 7 C.F.R. § 226.18 was in effect
  at the time of the offenses at issue here, the parties have stipulated that
  the regulation was in effect at all relevant times, and we assume so for
  the purposes of the instant appeal.

FN2.  At the remand hearing, defendant offered an exemplar of CVCAC's
  "Day Care Home Daily Count Sheet" to support his contention that the
  missing records would contain the information he seeks.  Although the
  sample sheet shows fictional children's names and attendance schedules, the
  CVCAC form does not require entry of such information, but rather requires
  entry only of the numbers and types of meals served each day for each
  child.  As we noted supra, the prerequisite to application of the "required
  records" exception is that there is a statute or regulation that requires
  maintenance of the information.  In re Underhill, 781 F.2d 64, 67 (6th Cir.
  1986).  CVCAC's suggested method for completing its form, without more, is
  insufficient to bring the records within the exception.