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State v. Hendricks11/16/2001
the court in Hues. The court stated:
You may take notes during the trial if you wish. Pads and pencils will be made available. You may also have those notes with you when you deliberate at the end of the case, however please be cautious of the following: t is possible that you may miss hearing some testimony if taking notes at the time. Watching a witness as he or she testifies and noting the demeanor of the witness is something you may consider in determining the credibility of that witness. Lastly, when in deliberations at the end of the case, do not rely on the recollection of a juror who took notes about the testimony of a witness solely because the juror took notes. As we all know, notes can be wrong. Keep in mind that every word spoken in the courtroom is recorded verbatim and can be replayed for you during deliberations if necessary.
There was no error, much less plain error.
V.
In his final claims, defendant contends that the court erred in refusing to instruct the jury with regard to the credibility of police witnesses, and in instructing the jury on the essential elements of the offense prior to trial. We note, in evaluating these claims, that jury instructions fall within the ambit of the trial court's discretion. Knapp v. State, 168 Vt. 590, 591, 729 A.2d 719, 720 (1998)(mem.).
At trial, defendant requested an instruction as to the credibility of a police officer's testimony. The court declined to instruct the jury specifically as to the weight to be accorded to a police officer's testimony, but included in its charge language regarding the credibility of witnesses generally. It stated:
It is not the quantity of witnesses that should determine your decision, but rather the quality of their testimony. You can believe all that a witness says or you can believe part of it or you can disbelieve all of it . . . Keep in mind that how much weight to give the testimony of any witness is entirely your decision.
Defendant did not object to this instruction after the charge. We find no abuse of discretion in the court's charge to the jury regarding the credibility of witnesses.
Defendant cites no authority for the proposition that it is improper for a court to issue preliminary instructions to the jury on the essential elements of the offense, and concedes that due to his failure to object, we must review the court's instruction for plain error. Defendant's argument does not raise a meritorious claim of error, much less plain error.
Affirmed.
Concurring
DOOLEY, J., concurring.
The concurring opinion of Justice Skoglund prompts this additional concurring opinion on the important question of the scope of the character evidence rule of V.R.E. 404 in domestic assault criminal cases. Although I am concerned that the prohibition on the misuse of character evidence as expressed in V.R.E. 404(a) should not be undermined by the use of specious alternative rationales for admission, I do not believe that concern should govern in the narrow circumstances of the admission of prior incidents of domestic violence with the same victim as testified to by that victim. Thus, I cannot join in Justice Skoglund's call that we reject the reasoning of State v. Sanders, 168 Vt. 60, 716 A.2d 11 (1998) or that we amend V.R.E. 404 to adopt the Sanders holding in the evidence rule.
At the outset, I believe that following Justice Skoglund's analysis requires us to overrule State v. Sanders, a very recent unanimous opinion of this Court. Although Justice Skoglund points out two possible alternative rationales for Sanders, neither is adopted by the opinion. The first i
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