Vermont Supreme Court
Recent Decisions of Note:
State v. Peterson, 2009-226, July 21, 2009 (unpublished decision)
Judge Joseph had set $100,000 bail on the defendant for cocaine charges saying “we recently set bail at ten thousand in one of these cases and the person has never been seen since posting bail within two hours of his arrest.” This bail was upheld by Judge Rainville in the bail review hearing because the defendant lived out of state and the weight of the evidence was strong based on the affidavits. Reversed and remanded by Justice Johnson for lack of any analysis of the risk of flight and she also criticizes Joseph, noting that bail must be particularized to the defendant, not set by reference to previous cases of other defendants.
Judge Joseph had set $100,000 bail on the defendant for cocaine charges saying “we recently set bail at ten thousand in one of these cases and the person has never been seen since posting bail within two hours of his arrest.” This bail was upheld by Judge Rainville in the bail review hearing because the defendant lived out of state and the weight of the evidence was strong based on the affidavits. Reversed and remanded by Justice Johnson for lack of any analysis of the risk of flight and she also criticizes Joseph, noting that bail must be particularized to the defendant, not set by reference to previous cases of other defendants.
State v. Hazelton, 2009 VT 93, August 21, 2009
Following a successful appeal of his sexual assault conviction, defendant was again convicted. On appeal, the Court agreed with the defense that trying two counts which were the same offense (sex assault compelled and sexual assault of a minor) was error as multiplicitous and the state should have been required to elect. But the Court finds this harmless error on the strength of the case. A psychologist’s testimony that the complainant’s delay in reporting was consistent with the profile of a sexually assaulted minor was not error. Judge Hayes’ sentencing the defendant to one additional year in jail over his first sentence and following his successful appeal was okay- no abuse of discretion or due process violation. The court declines to adopt a per se rule barring higher sentences following successful appeals where no obvious abuse or vindictiveness appears.
Following a successful appeal of his sexual assault conviction, defendant was again convicted. On appeal, the Court agreed with the defense that trying two counts which were the same offense (sex assault compelled and sexual assault of a minor) was error as multiplicitous and the state should have been required to elect. But the Court finds this harmless error on the strength of the case. A psychologist’s testimony that the complainant’s delay in reporting was consistent with the profile of a sexually assaulted minor was not error. Judge Hayes’ sentencing the defendant to one additional year in jail over his first sentence and following his successful appeal was okay- no abuse of discretion or due process violation. The court declines to adopt a per se rule barring higher sentences following successful appeals where no obvious abuse or vindictiveness appears.
State v. Charbonneau, 2009 VT 89 ¶ 16 n. 4.
Although the Court affirmed Charbonneau’s simple assault conviction (judge granted a JoA on the DA w/ state’s cop expert testifying on the “cycles of violence” at trial), it blasted the state “for failing to provide any notice whatsoever that it intended to treat the investigator as both a fact and an expert witness….We do not condone such gamesmanship.” The Court held that “notice, prior to trial, of the substance of its expert’s testimony” is required. [Only after listening to the testimony of the state’s witness did defense counsel realize the cop was testifying as an expert!] The Court also admonished the trial judge for failing to do a Daubert inquiry on purported expert testimony on cycles of violence. Check out our brief in the DG’s brief bank for authority critical of “cycles of violence” evidence as lacking sufficient assurances of reliability under Daubert.
Although the Court affirmed Charbonneau’s simple assault conviction (judge granted a JoA on the DA w/ state’s cop expert testifying on the “cycles of violence” at trial), it blasted the state “for failing to provide any notice whatsoever that it intended to treat the investigator as both a fact and an expert witness….We do not condone such gamesmanship.” The Court held that “notice, prior to trial, of the substance of its expert’s testimony” is required. [Only after listening to the testimony of the state’s witness did defense counsel realize the cop was testifying as an expert!] The Court also admonished the trial judge for failing to do a Daubert inquiry on purported expert testimony on cycles of violence. Check out our brief in the DG’s brief bank for authority critical of “cycles of violence” evidence as lacking sufficient assurances of reliability under Daubert.
State v. Ellis, 2009 VT 74, July 16, 2009
Full court was convinced that a case involving persistent conduct by an awkward high school boy towards his high school crush, who was friendly but ultimately uninterested, did not constitute criminal behavior. Justice Dooley, writing for the court, held that defendant's conduct would not cause a reasonable person to fear unlawful restraint. Unlawful restraint does not depend upon evidence of threats by defendant or the complainant’s fear—it may be possible that certain extreme obsessive behavior is enough. In this case there was no evidence of threats or of complainant’s subjective fear, but the court determined that defendant's conduct did not rise to the level of extreme obsessive behavior. Here, the conduct took place in public areas, the defendant ceased telephone calls when requested by the complainant, there was almost no attempt to enlist help from third parties, and the case involved high school students where the literature shows “intrusive conduct following the termination of a relationship, including a friendship, is relatively common among adolescents and young adults.” “The need is to determine what part of those intrusive behavior incidents portends future violence.”
Full court was convinced that a case involving persistent conduct by an awkward high school boy towards his high school crush, who was friendly but ultimately uninterested, did not constitute criminal behavior. Justice Dooley, writing for the court, held that defendant's conduct would not cause a reasonable person to fear unlawful restraint. Unlawful restraint does not depend upon evidence of threats by defendant or the complainant’s fear—it may be possible that certain extreme obsessive behavior is enough. In this case there was no evidence of threats or of complainant’s subjective fear, but the court determined that defendant's conduct did not rise to the level of extreme obsessive behavior. Here, the conduct took place in public areas, the defendant ceased telephone calls when requested by the complainant, there was almost no attempt to enlist help from third parties, and the case involved high school students where the literature shows “intrusive conduct following the termination of a relationship, including a friendship, is relatively common among adolescents and young adults.” “The need is to determine what part of those intrusive behavior incidents portends future violence.”
State v. Harris, 2009 VT 73, July 16, 2009
Cop pulled defendant over for failure to use turn signal when exiting a rotary. Stop eventually turned into a DUI conviction. Counsel filed a suppression motion based on an illegal stop. The trial court denied it holding that exiting a rotary is a change of direction as a matter of law and that failure to do so was a traffic violation. Reviewing whether Vt’s turn-signal statute, requiring use of signal before changing direction, applies to traffic in rotaries, the court held that they "cannot agree with the trial court’s determination that any exit from any rotary is necessarily a change of direction, absent evidence of an actual change of direction in this case. The layout of rotaries, especially their size and the orientation of their entry and exit points, can vary greatly. It is possible that in some rotaries, the entry and exit locations would be located in such proximity to each other that a vehicle could travel through the rotary without making any discernible or significant change in direction….Given this kind of possibility…it would have been necessary for the State to demonstrate that defendant’s exit off of this particular rotary constituted a change of direction in order to justify the traffic stop.” No evidence was offered. Matter remanded for an evidentiary hearing on defendant’s motion to suppress.
Cop pulled defendant over for failure to use turn signal when exiting a rotary. Stop eventually turned into a DUI conviction. Counsel filed a suppression motion based on an illegal stop. The trial court denied it holding that exiting a rotary is a change of direction as a matter of law and that failure to do so was a traffic violation. Reviewing whether Vt’s turn-signal statute, requiring use of signal before changing direction, applies to traffic in rotaries, the court held that they "cannot agree with the trial court’s determination that any exit from any rotary is necessarily a change of direction, absent evidence of an actual change of direction in this case. The layout of rotaries, especially their size and the orientation of their entry and exit points, can vary greatly. It is possible that in some rotaries, the entry and exit locations would be located in such proximity to each other that a vehicle could travel through the rotary without making any discernible or significant change in direction….Given this kind of possibility…it would have been necessary for the State to demonstrate that defendant’s exit off of this particular rotary constituted a change of direction in order to justify the traffic stop.” No evidence was offered. Matter remanded for an evidentiary hearing on defendant’s motion to suppress.
Girouard v. Hofmann, 2009 VT 66, June 19, 2009
Supreme Court ruled the DOC violated the Ex Post Facto Clause when it applied the current version of the furlough statute instead of the statute in effect at the time client committed first degree murder and was sentenced for life w/ possibility of parole (1975). In 2007, client successfully completed the cognitive self change program and argued he was eligible for furlough. DOC said no as under the current furlough statute minimum sentence must be met before becoming eligible for furlough. Since he never received a minimum sentence, he would never be eligible for furlough. Court held that because application of current law to client’s sentence would effectively prevent him from ever being able to obtain parole this increased his sentence and violates the ex post facto clause. Reversed and remanded.
Supreme Court ruled the DOC violated the Ex Post Facto Clause when it applied the current version of the furlough statute instead of the statute in effect at the time client committed first degree murder and was sentenced for life w/ possibility of parole (1975). In 2007, client successfully completed the cognitive self change program and argued he was eligible for furlough. DOC said no as under the current furlough statute minimum sentence must be met before becoming eligible for furlough. Since he never received a minimum sentence, he would never be eligible for furlough. Court held that because application of current law to client’s sentence would effectively prevent him from ever being able to obtain parole this increased his sentence and violates the ex post facto clause. Reversed and remanded.
State v. Viens, 2009 VT 64, June 19, 2009
The Court rejected the argument that involuntary manslaughter requires proof of an independent unlawful act: “Post-Stanislaw, it is unnecessary to consider whether an act is independently unlawful; instead, any act undertaken by a defendant in a criminally negligent fashion that results in the death of another may subject the defendant to criminal liability for involuntary manslaughter.” This is the case involving Collin Viens, a college-kid who was out hunting for the first time in his life when he accidentally discharged his rifle at dusk killing a farmer who was sitting in the cab of his tractor hundreds of yards away. The Court determined that the state proved that he shouldered his rifle, disengaged its safety, viewed his surroundings through the scope w/ finger on or near the trigger, and prior to the gun’s discharge, defendant admitted to having seen the tractor through the scope. There was also evidence that the conduct violated several hunter and gun safety guidelines. The Court determined this demonstrated criminal negligence.
State v. Tavis, 2009 VT 63, June 12, 2009
Reversal of Judge Toor’s denial of a motion to dismiss a VCR for contacting the victim while he was held for lack of bail. The form order “CONDITIONS OF RELEASE” specifically says that the defendant be released upon the conditions, even though the statute says that the no-contact provisions apply even if the defendant is in jail. Here, neither the form nor the judge ever gave the defendant notice that the no-contact provisions applied when he was not released. Unanimous decision.
State v. Pitts, 2009 VT 51. May 22, 2009
In this appeal of a denial of a suppression motion based on an illegal search of Yosef Pitts’s person and Sequoya Pitts’s home, the Court reviewed the point where mere questioning by police turns into a Terry stop requiring reasonable and articulable grounds to suspect a person is engaged in criminal behavior. The Court held that while mere innocuous questions may not be a seizure, “pointed questions about drug possession or other illegal activity in circumstances indicating that the individual is the subject of a particularized investigation” automatically converts it from a consensual encounter to a Terry stop.
In this appeal of a denial of a suppression motion based on an illegal search of Yosef Pitts’s person and Sequoya Pitts’s home, the Court reviewed the point where mere questioning by police turns into a Terry stop requiring reasonable and articulable grounds to suspect a person is engaged in criminal behavior. The Court held that while mere innocuous questions may not be a seizure, “pointed questions about drug possession or other illegal activity in circumstances indicating that the individual is the subject of a particularized investigation” automatically converts it from a consensual encounter to a Terry stop.
After an initial encounter with Yosef when police were serving a subpoena at a suspected drug house and where Yosef appeared nervous, police followed him when he left in a taxi on a hunch that he was engaged in criminal activity. Upon arrival, the police approached Yosef and initially asked innocuous questions. Police then asked Yosef if he had any weapons although nothing suggested he was armed. Court held that at this moment the questions became more pointed as to whether Yosef was in possession of anything illegal and made it clear he was subject to a particularized investigation and was not free to leave. The detention was illegal and the consensual search that immediately followed was tainted.
Meanwhile, the Court held the search of Sequoia’s home was reasonable and not tainted by the earlier illegal search of Yosef’s person as the police had independent basis to investigate the residence. Additionally, Sequoia’s consent to search the home was held to be voluntary. Where an officer indicates that a subsequent warrant would be issued regardless of her consent or otherwise suggests that her refusal would be futile, the Court noted consent may be involuntary. Justices Johnson and Skoglund dissenting.
Meanwhile, the Court held the search of Sequoia’s home was reasonable and not tainted by the earlier illegal search of Yosef’s person as the police had independent basis to investigate the residence. Additionally, Sequoia’s consent to search the home was held to be voluntary. Where an officer indicates that a subsequent warrant would be issued regardless of her consent or otherwise suggests that her refusal would be futile, the Court noted consent may be involuntary. Justices Johnson and Skoglund dissenting.
State v. Mumley, 2009 VT 48. May 8, 2009
Reversal of Judge Kupersmith’s denial of a motion to suppress statements. The officer had the defendant in custody for an alleged attempted kidnapping. He read the Miranda rights to defendant, who answered yes to the questions “do you understand?” But the cop failed to read the sentence, “I understand that I am waiving my right to be represented by an attorney….” And the defendant never signed the form. He made some incriminating statements. Judge Kupersmith denied the challenge to the admission of the statements, finding a valid implicit waiver, “assuming that the court finds” the defendant had the requisite experience, etc. to understand the nature of the rights and the consequences of waiving them. He also found that the videotaping of the interrogation constituted a record for purposes of 13 VSA 5237- requiring a waiver of counsel to be in writing or other record. VSC ruled that Kupersmith failed to consider the factors required by State v. Malinowski,148 Vt. 517, 518-20 and by 13 VSA 5237 such as defendant’s age, experience, education, background, intelligence, capacity to understand the warnings and the consequences of a waiver, familiarity with the English language and the complexity of the crime involved. The error was not harmless as the state used the statements against him to discredit his defense. The Court did not address the issue of whether the videotape could constitute a record for waiver of counsel under sec. 5237.
Reversal of Judge Kupersmith’s denial of a motion to suppress statements. The officer had the defendant in custody for an alleged attempted kidnapping. He read the Miranda rights to defendant, who answered yes to the questions “do you understand?” But the cop failed to read the sentence, “I understand that I am waiving my right to be represented by an attorney….” And the defendant never signed the form. He made some incriminating statements. Judge Kupersmith denied the challenge to the admission of the statements, finding a valid implicit waiver, “assuming that the court finds” the defendant had the requisite experience, etc. to understand the nature of the rights and the consequences of waiving them. He also found that the videotaping of the interrogation constituted a record for purposes of 13 VSA 5237- requiring a waiver of counsel to be in writing or other record. VSC ruled that Kupersmith failed to consider the factors required by State v. Malinowski,148 Vt. 517, 518-20 and by 13 VSA 5237 such as defendant’s age, experience, education, background, intelligence, capacity to understand the warnings and the consequences of a waiver, familiarity with the English language and the complexity of the crime involved. The error was not harmless as the state used the statements against him to discredit his defense. The Court did not address the issue of whether the videotape could constitute a record for waiver of counsel under sec. 5237.
State v. North, 2009 VT 40. May 1, 2009
Judge Kupersmith found defendant committed three instances of contempt, imposing three consecutive sentences of five to six months for each time defendant made a serious of rapid expletive comments to the judge after the court imposed a sentence in another matter. Although proceedings for contempt involving disrespect to or criticism of a judge may require referral to another judge, the Court found that no referral was needed as the severity of the contempt at issue was not great and because there was no evidence that the judge lost his composure. The Court affirmed the three summary contempt findings, but held that the sentence must run concurrent rather than consecutive because the acts were part of the same contemptuous episode. Affirmed and reversed in part.
Judge Kupersmith found defendant committed three instances of contempt, imposing three consecutive sentences of five to six months for each time defendant made a serious of rapid expletive comments to the judge after the court imposed a sentence in another matter. Although proceedings for contempt involving disrespect to or criticism of a judge may require referral to another judge, the Court found that no referral was needed as the severity of the contempt at issue was not great and because there was no evidence that the judge lost his composure. The Court affirmed the three summary contempt findings, but held that the sentence must run concurrent rather than consecutive because the acts were part of the same contemptuous episode. Affirmed and reversed in part.
In re Stewart Jones, 2009 VT 39. April 8, 2009
The Supreme Court held unanimously that V.R.C.P. Rule 62(d)(1), relating to auto stays pending appeal, does not apply to PCR cases. Because a court's discharge of a PCR petitioner, under 13 VSA 7133, does not leave room for an enforcement action, the terms of Rule 62 relating to auto stays do not apply. Whether the judge has the power to grant a discretionary stay in a PCR decision was left unanswered by the Court. Motion to lift stay pending the state's appeal granted.
In re Miller, 2007-254, 2009 VT 36. April 3, 2009.
Interpreting 13 V.S.A. § 7559(d), relating to failures to appear "in connection with a prosecution," the Court held that the subsection is meant to punish only "failures to appear in court—or at other proceedings that directly advance a pending prosecution." The Court made clear that § 7559(d) does not punish mere failures to report to a police station for an alcohol test or other violations of conditions of release. These later types of violations are subject, instead, to 13 V.S.A. § 7559(e), which punishes conduct less severely. This decision effectively halts prosecutorial overcharging of violations of conditions of release not related to court appearances.
State v. Bray, Docket No. 2009-049. March 10, 2009. (Unpublished.)
Court remanded Judge Kupersmith's HWO bail decision. Three-judge panel ruled the Franklin District Court could not rely exclusively on an out-of-court sworn statement from the state's star witness when the witness is present at the hearing in person to recant. Supporting case: State v Passino, 154 Vt. 377 (1990).
Borden, et a.l v. Hofmann, 2009 VT 30. Full court opinion. March 13, 2009.
In a 3-2 decision, J. Skoglund holds that Nutraloaf is punishment under 28 VSA 851, requiring a hearing prior to imposing a Nutraload diet. The Court determined that Nutraloaf was designed to be "unappetizing" and a deterrence. There were also less harsh methods available to achieve the same end. Both of which evidenced the DOC's punitive intent. Case reversed.
State v. Colby, 2009 VT 28. Full court opinion. March 13, 2009.
Court unanimously dismissed charges of disorderly conduct under 13 VSA 1026(4) (w/o lawful authority disturbs any lawful assembly or meeting of persons). At a commencement ceremony at St. Johnsbury Academy where US Dir of Intelligence John Negroponte delivered a speech, Appellant yelled out "[Negroponte] had blood on his hands" and invited the audience to walk out. The speech continued on. The Court held that the statute must be read narrowly to avoid First Amendment violations. The state must prove that Defendant's conduct "substantially impair[ed] the effective conduct of a meeting." Substantial impairment is assessed using an objective standard as to "the actual impact of that misconduct on the course of the meeting": reviewing "timing, duration or intensity." Because appellants' actions constituted de minimis disturbances it "cannot serve as the basis for criminal liability without running afoul of the First Amendment."
Some recent cases, sorted by docket number, are included within the following categories: