In Re Morrell

7ermont Superior Court
Filed 04/14/26
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 23-CV-01915
175 Main Street
Burlington VT 05401
802-863-3467
.vermontjudiciary.org

In Re: Richard Morrell DECISION ON MOTIONS

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

This is a post-conviction relief ("PCR") case filed by Petitioner Richard Morrell
challenging his 2021 conviction for attempted domestic assault, which was affirmed by the
Vermont Supreme Court in 2022. In May 2023, Morrell filed this action alleging ineffective
assistance of counsel. Pursuant to Rule 56 of the Vermont Rules of Civil Procedure, the parties
have filed cross motions for summary judgment focusing on the admission of two pieces of
evidence at trial: (1) a video recording from Morrell's home video system and (2) testimony
from the arresting officer who was transporting Morrell to the police barracks following his
arrest.! Morrell is represented by Dawn Seibert, Esq. and the State is represented by Deputy
State's Attorney Andrew Gilbertson. On March 18, 2026, the Court heard oral argument on the
motions, and then took the matter under advisement for determination. For the reasons discussed
below, Morell's motion for summary judgment is GRANTED and the State's motion is
DENIED.

Undisputed Material Facts

On July 22, 2021, following a jury trial, Richard Morrell was convicted of misdemeanor
attempted domestic assault on his wife, Tammie." Specifically, the State accused Morrell of
attempting to cause bodily injury to Mrs. Morrell by pushing her. Mrs. Morrell did not provide a
sworn statement to the police. She testified at a pre-trial hearing and at trial that she was the
aggressor and that Morrell did not assault her. She explained that she initiated the physical
contact with her husband and lied to the police about the incident because she had been driving

As stated in Morrell's motion, the parties have stipulated as to the set of issues and questions
presented in this case.
*
Each party filed a Statement of Undisputed Material Facts in support of its own motion for
summary judgment, but neither Morrell nor the State filed responses to the other's statements.
Pursuant to V.R.C.P. 56(e)(2), the Court considers both parties' statements undisputed. See
Boyd v. State, 2022 VT 12, 1 8 n.1, 216 Vt. 272 (where plaintiff "did not directly respond to
defendant's statement of facts[,] . for purposes of summary judgment, defendant's facts are
deemed undisputed").
intoxicated with her children in the car. A video recording exists of the alleged offense from a
home recording system that Morrell had provided to law enforcement. The video shows Mr.
Morrell leaning over Mrs. Morrell with clenched fists, and it shows him pushing Mrs. Morrell
onto a table, leaning over her while they struggled. At trial, the prosecution introduced a copy of
the video that an officer made using his cell phone while he watched the recording, despite
previously representing to the court that she would use a version that had been taken directly
from the home recording system. No date or time stamp appears anywhere on the video
recording that the officer made.

At trial, Mrs. Morrell testified that the video clip shown to the jury was incomplete and
misleading, omitting evidence that corroborated her testimony:

I punched him in the face several times. He did absolutely nothing but restrain
me, absolutely nothing. So you need to show that whole entire video because you
didn’t see – I’m sure you guys didn’t see the whole part with me attacking him.
Positive you guys didn’t see that, right? . . . If you guys watched the whole
video, you would see that I was the one keep – antagonizing him.

Morrell’s defense counsel did not challenge the admissibility of the officer’s cellphone
recording when it was introduced at trial. Accordingly, the prosecution took no steps to
authenticate the officer’s video recording – either by calling the officer who created the video or
by asking Mrs. Morrell whether the video accurately depicted the events recorded.

In addition, the arresting officer who was transporting Mr. Morrell to the police barracks
testified at trial as follows:

I was transporting [Mr. Morrell] down to corrections, as we got closer to
corrections, it was like a – a light switch had flipped inside him. He had been
very cordial, very polite to us all evening. And once we got down to corrections,
he became very angry. Almost immediately once we got into corrections and got
him into – out of the vehicle and into the bay before we got into corrections, he
was demanding to see the court work. He was yelling. He was screaming. You
know, it was just a very different display from what I had seen all night, and it
was definitely just instantaneously.

Defense counsel did not object to this testimony by the arresting officer.

The parties’ expert witnesses agree that without the video, there likely would not have
been sufficient evidence to convict Mr. Morrell. They disagree, however, about whether the
State could have overcome an objection to the video’s admission into evidence had defense
counsel raised one. Morrell’s expert opined that the trial court would have excluded the video
upon objection, and therefore the failure to object constituted ineffective assistance of counsel.
According to the State’s expert, the State likely would have been able to authenticate the video
and it would have been admitted over any objection. Moreover, the State argues that the
appellate court’s decision that admitting the video was not plain error forecloses the argument
that there were insufficient grounds in the record to admit the video. With regard to the arresting

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officer’s testimony about Morrell’s demeanor during his transportation to the barracks, both
experts agree that defense counsel should have objected to the testimony and that the court
would have excluded it had an objection been made, although the State’s expert contends the
error was harmless given the strength of the video evidence.

Discussion

To prevail on his ineffective assistance of counsel claim, Mr. Morrell “must show by a
preponderance of the evidence that: (1) his counsel’s performance fell below an objective
standard of performance informed by prevailing professional norms; and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the proceedings would have resulted in a
different outcome.” In re Grega, 2003 VT 77, ¶ 7, 175 Vt. 631 (citations omitted); accord In re
Russo, 2010 VT 16, ¶ 16, 187 Vt. 367; see also Strickland v. Washington, 466 U.S. 668, 687-88,
694 (1984) (“When a convicted defendant complains of the ineffectiveness of counsel’s
assistance, the defendant must show that counsel’s representation fell below an objective
standard of reasonableness” and “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”).

Summary judgment shall be granted when the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of
law.” V.R.C.P. 56(a). In this case, the parties do not dispute the facts; rather, they dispute only
whether the video that was shown to the jury would have been excluded by the court if defense
counsel had objected to its introduction at trial. This is a purely legal question, although the
Court’s analysis must be based on the undisputed facts and other competent evidence in the
record. V.R.C.P. 56(5). If the Court determines that the video would not have been admitted,
the parties’ experts agree that the result of the proceeding probably would have been different.

As noted above, Morrell appealed his conviction to the Vermont Supreme Court. Morrell
argued that the trial court committed reversible error in admitting the video recording. State v.
Morrell, Case No. 21-AP-218, 2022 WL 1515057, at *1 (Vt. May 2022) (unpub. mem.).
Because Morrell did not object to the introduction of the video at trial, the Supreme Court
reviewed the admission of the video for plain error. Id. at *2. When reviewing for plain error,
the Supreme Court considers whether “exceptional circumstances [exist] where a failure to
recognize error would result in a miscarriage of justice, or where there is glaring error so grave
and serious that it strikes at the very heart of the defendant’s constitutional rights.” State v. Yoh,
2006 VT 49A, ¶ 39, 180 Vt. 317 (quoting State v. Oscarson, 2004 VT 4, ¶ 27, 176 Vt. 176). A
finding of plain error requires “not only that the error seriously affected substantial rights, but
also that it had an unfair prejudicial impact on the jury’s deliberations.” Oscarson, 2004 VT 4,
¶ 27 (citation omitted)).

The Supreme Court held that the trial court did not commit plain error in admitting the
video into evidence. Under Rule 901(a) of the Vermont Rules of Evidence, the trial court
assumes the role of a “gatekeeper” and must “only ‘conclude that there is evidence upon which a
reasonable jury’ could find ‘that the evidence is what it purports to be.’” Morrell, 2022 WL
1515057, at *2 (quoting State v. Hiltl, 2021 VT 60, ¶ 28, 215 Vt. 305). As the Morrell Court
observed, the record indicated that Morrell “controlled the video recording, which captured

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images from his home,” that “[h]e provided the camera system to police and there was no
opportunity for police to modify it before viewing it,” that “Defendant demanded that police
review the video that he provided,” and that “[D]efendant and police watched the video
together.” Id. Based on these facts, the Court concluded that “there was evidence from which
the jury could reasonably conclude that the video was what it purported to be, and the [trial]
court did not commit plain error in admitting it.” Id. at *3. Therefore, the Supreme Court
concluded, the trial court’s admission of the surveillance video did not constitute a “miscarriage
of justice or glaring error that ‘strikes at the very heart of defendant’s constitutional rights.’” Id.
(quotation omitted).

Contrary to the State’s assertion, however, the Morrell Court’s determination that the trial
court did not commit plain error in admitting the video does not resolve the question as to
whether defense counsel provided ineffective assistance by failing to make an objection at trial.
Had counsel done so, the State would have been required to authenticate the video. See Morrell,
2022 WL 1515057, at *2 (distinguishing Hiltl on the grounds that its instant review “is only for
plain error”). Rule 901 provides that “[t]he requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.” V.R.E. 901(a). The rule offers many
examples of acceptable authentication or identification, including: (1) testimony by a “witness
with knowledge” that “a matter is what it is claimed to be,” and (2) “[e]vidence describing a
process or system used to produce a result and showing that the process or system produces an
accurate result.” V.R.E. 901(b)(1), (9).

These examples correlate with two theories that have become acceptable methods of
admitting photographs and videotapes into evidence in Vermont and elsewhere: the “pictorial
testimony” theory and the “silent witness” theory. Under the pictorial testimony theory,
“photographic evidence is admissible only when a sponsoring witness can testify that it is a fair
and accurate representation of the subject matter, based on that witness’s personal observation.”
State v. Hiltl, 2021 VT 60, ¶ 28, 215 Vt. 305 (quoting T. Farrell, Construction & Application of
Silent Witness Theory, 116 A.L.R. 5th 373, § 2[a]). Under the silent witness theory, “the
photographic evidence is a silent witness which speaks for itself, and is substantive evidence of
what it portrays independent of a sponsoring witness.” Id.; accord State v. Stevens, Case No. 24-
AP-318, 2025 WL 2829529, at *3 (Vt. Oct. 2025) (unpub. mem.) (“Video evidence may be
authenticated either by a witness testifying that the video is accurate based on the witness’s
personal observation or under the ‘silent witness theory, under which the photographic evidence
is a silent witness which speaks for itself, and is substantive evidence of what it portrays
independent of a sponsoring witness.’” (quoting Hiltl, 2021 VT 60, ¶ 29)). 3

Courts in other states have addressed the distinction between the two methods in ways
that are instructive. For example, the Arkansas Court of Appeals explained:

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Trial courts are free to “consider three-justice decisions from [the Vermont Supreme] Court
for their persuasive value, even though such decisions are not controlling precedent.” Washburn
v. Fowlkes, Case No. 2015-089, 2015 WL 4771613, at *3 (Vt. Aug. 2015) (unpub. mem.) (citing
V.R.A.P. 33.1(d)).

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The admissibility of photographic evidence is based on two different theories; one
theory is the pictorial testimony theory, which provides photographic evidence is
merely illustrative of a witness’s testimony, and it only becomes admissible when
a sponsoring witness can testify that it is a fair and accurate representation of the
subject matter, based on that witness’s personal observation, and a second theory
is the silent witness theory, which provides the photographic evidence is a silent
witness, which speaks for itself, and is substantive evidence of what it portrays
independent of a sponsoring witness.

Colston v. State, 523 S.W.3d 363, 365 (Ark. Ct. App. 2017). Further, the Alabama Court of
Criminal Appeals considered the requirements for authenticating a photograph or video
recording under each theory:

[T]o admit a recording under the pictorial-communication theory, the admitting
party must present a “qualified and competent witness who can testify that the
medium accurately and reliably represents what he or she sensed at the time in
question.” In other words, the witness who lays the foundation for the admission
of a recording under the pictorial-communication theory has to have been present
at the time the recording or photograph was made. If there is no such qualified
witness, the admitting party must rely on the silent-witness theory to have the
recording or photograph admitted into evidence. Indeed, the two “theories are
mutually exclusive, rather than alternative theories.”

Powell v. State, CR-20-0727, 2024 WL 1947990, at *25 (Ala. Crim. App. May 3, 2024) (quoting
Spradley v. State, 128 So.3d 774, 780-82 (Ala. Crim. App. 2011)), petition for cert. filed, U.S.
(Jan. 15, 2026) (No. 25-848).

At oral argument, the Court asked the State how it would have authenticated the video
had defense counsel made an objection. The State responded that it would have relied on the
pictorial testimony theory. When pressed to explain what evidence the State would have
proffered had there been an objection, the State pointed only to the evidence identified by the
Supreme Court in its decision on appeal. In addition to the evidence cited above, the Supreme
Court noted that the officer who went to the home to interview Morrell testified at trial that the
video “fairly and accurately depicted the inside of the [Morrells’] residence” and that he
“recognized [Mr. Morrell] and a woman who had the same appearance as his wife.” Morrell,
2022 WL 1515057, at *3.

While such evidence might have assisted the State in authenticating the video under the
silent witness theory, it falls short of what is necessary to satisfy the pictorial testimony theory,
which requires a witness to testify that what is depicted in the video “is a fair and accurate
representation of the subject matter, based on that witness’s personal observation.” Hiltl, 2021
VT 60, ¶ 29; see also Mooney v. State, 321 A.3d 91, 102 (Md. 2024) (stating pictorial testimony
theory of authentication involves testimony by witness with knowledge of events depicted on
video); State v. Anglemyer, 691 N.W.2d 153, 160 (Neb. 2005) (“Under the [pictorial testimony]
model, a photograph, motion picture, videotape, or other recording is . . . is admissible only
when a witness testifies that it is a correct and accurate representation of facts that the witness

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personally observed.” (citing 2 McCormick on Evidence § 214 (5th ed.)); 2 McCormick on
Evidence § 215 (9th ed.) (a photograph is “authenticated if the witness testifies that [it] is a
correct and accurate representation of relevant facts personally observed by the witness”).

Thus, under the pictorial testimony theory, there are only two witnesses who would have
been competent to authenticate the video because they were at the Morrells’ home during the
events in question. However, Morrell exercised his right not to testify, and Mrs. Morrell was not
asked at trial whether the video was an accurate representation of what occurred on the night at
issue. Nor did the State assert that it would have asked her this question had it been required to
authenticate the video, let alone demonstrate what her answer would have been. Accordingly,
the Court finds Morrell has demonstrated that the trial court likely would not have admitted the
home surveillance video had defense counsel objected to it at trial. 4

As noted above, both parties’ experts agree that there would not have been sufficient
evidence to convict Mr. Morrell without the video. The Court concurs that the video was a
crucial piece of evidence and there is a reasonable probability that the outcome of the criminal
case would have been different without its admission. See Strickland, 466 U.S. at 694 (“A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”).
Therefore, the Court concludes Morrell has demonstrated his claim of ineffective assistance of
counsel. See Grega, 2003 VT 77, ¶ 7.

Based on the Court’s conclusion, the Court does not reach Morrell’s claims that other
conduct by his criminal defense attorney constituted ineffective assistance of counsel.

Order

For the foregoing reasons, Morrell’s Motion for Summary Judgment (Mot. #16) is
GRANTED. The State’s Motion for Summary Judgment (Mot. #17) is DENIED.

Petitioner’s conviction is vacated and this case is hereby remanded to the Chittenden
Criminal Division for further proceedings. 13 V.S.A. § 7133.

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In light of the State’s reliance on the pictorial testimony theory in this matter, the Court need
not address whether the video could have been authenticated under the silent witness theory.
The Court notes, however, that there is no time or date stamp on the video, and it seems
undisputed that neither of the Morrells could testify as to the workings of the surveillance
system. Morrell told law enforcement that “he wasn’t really sure how to use” the video system,
see Trial Tr. at 38, and Mrs. Morrell apparently had no information other than the knowledge
that there were video cameras in the house. Thus, it would not appear that the State could have
presented a witness to satisfy the element of the silent witness theory “to show the circumstances
under which a video was taken and the reliability of the reproduction process.” Hiltl, 2021 VT
60, ¶ 31 (quotation omitted).

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Electronically signed on April 14, 2026 at 9:43 AM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

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