Recent Decisions of Note:

State v. Sanville, 2011 VT 34
     The full Court declared the "violent or threatening behavior is not allowed at any time" probation condition is impermissibly vague and fails to inform a probationer of what actions might subject him to probation revocation. They found that Mr Sanville was "mouthy and obnoxious" during arguments with his landlord. At one point he said that he was going "to kick [the landlord's] butt." In one particularly heated exchange, Mr. Sanville told his landlord that he was going to burn the trailer down. Mr. Sanville got "huffy" and walked away, but at no time did he make a physical gesture towards the landlord. The Court held that "the idea that such behavior could properly be considered either 'violent or threatening' or that the language of the condition could fairly apprise probationer that he must curb his tongue in any heated exchange or risk further incarcertaion, is to stretch its meaning impermissibly." Mr. Sanville's "choice of words to express his anger and frustration" fail to violate this condition. The Court futher noted that if the condition prohibited "use of what for him may be standard vocabulary, it would be difficult to find it reasonably related to defendant's rehabilitation or necessary to reduce risk to public safety" such as to withstand constitutional scrutiny. 

State v. Randall Gokey, 2010 VT 89
     Court to granted a new trial in an L+L with a child/habitual case. Three members of the Court found that Judge Carroll stepped way over the line and assumed the role of a witness in violation of V.R.E. 605 by conducting ex parte communication with the transporting officers and a pharmacy manager and then inserted that information into a competency hearing. The defendant had medical problems and a seizure disorder. On the second day of trial, he was taken by ambulance to the ER. The next day, having taken medication given at the ER, the defendant was completely sleepy, unresponsive and out of it. The defense requested a continuance and a competency hearing.  At this point, the judge faulted the defendant for taking his medication. During a break, the judge called a pharmacy manager ex parte and discussed the effect of medication which the defendant had taken. She also conducted ex parte communications with the sheriffs who said the defendant was fine during the drive.  After a 30 minute break during which the defense attorney was unable to contact her client’s doctors, the judge told the parties of her ex parte communications and then called the sheriffs to the stand and questioned them under oath. The judge decided that the defendant was faking. Held:  the judge violated V.R.E. 605 and became a witness, and when a judge violates V.R.E. 605 no further showing of prejudice is required. The Court also holds that the defendant was denied due process when the court denied counsel the opportunity to present medical evidence from a physician as to the medications and effect they may have had on the defendant. Reiber and Burgess dissented stating that the issue was waived because not raised below.

State v. Devoid, Jr.
       Court granted a motion for judgment of acquittal in a attempted voyeurism case. As the Court agreed, there was no proof that the defendant, standing outside in the parking lot of his apartment building looking up at the complainant’s second story window in her shower could have seen any of her intimate areas. In fact, a photograph of the complainant standing in her shower (clothed!) demonstrated that her intimate areas were below the windowsill and thus, not visible to someone standing below her. Justice Skoglund and Johnson concur but add that, in their view the trial court’s decision to instruct the jury on a new charge–after the jury had begun deliberating–was also reversible error. During deliberations, when the jury wrote a note to the judge that they decided the defendant couldn’t see anything but might have been trying to, and asked what should their verdict be, Judge Joseph instructed them on a theory of attempted voyeurism, which was not charged or previously requested.

State v. Lee, September 10, 2010 (unpublished decision)
Katz "car up on blocks" bail condition on GNO case overturned by Dooley

State v. Delaoz, 2010 VT 65, July 16, 2010
     This opinion contains some good and some bad new:
     The Bad:  The Court found a search and seizure of a folded dollar bill was not the fruit of a Miranda violation. Defendant was in custody and questioned without Miranda. While held waiting confirmation of an outstanding warrant, defendant dropped a dollar bill, which the Court describes as folded into a small pouch. Defendant immediately picked it up and put it in his pocket and the officer requested the defendant to give it to him which he did. The Court finds that the dollar bill pouch or “bindle” was immediately recognizable to the officer as containing contraband and, with exigent circumstances justified the seizure of the dollar bill. A search of this pouch was justified because the dollar had been in plain view and the way the bill was folded proclaimed its contents “unambiguously.” The Court decides without discussion that a further search of the defendant in which the officer removed and opened bags from his pockets and a wooden box, which all contained drugs, was a reasonable search incident to arrest.
     More Bad: Permitting the introduction of evidence and failing to give a limiting instruction was not error where the state introduced evidence that the officers had found a handcuff key in the defendant’s shoe. The evidence was relevant to a charge of FIPO and to possession of drugs because possession of a means to escape may be an indication of “a plan to deflect investigation” and supports an inference that the defendant knew his behavior was illegal.
     Also Bad: Judge Carroll’s reliance at sentencing upon her own experience as a drug prosecutor to conclude that although the defendant was only convicted of possession, she believed he was selling drugs  was not error as judges are not required to make decisions in a vacuum and she also considered his past history and the current offense.
     The Good: Justice Johnson reaches out to decide that a sentence of 4 years 11 months to 5 years violated 13 VSA 7031 (a) by imposing a fixed term. The Court finds that our indeterminate sentencing law promotes the goal of rehabilitation by allowing for parole. A 30 day interval between minimum and maximum “closes the window in which the parole board can exercise its discretion” thus thwarting the rehabilitative purpose behind the sentencing and parole laws. The Court did not decide where the line should be drawn. Justices Dooley and Burgess dissent on the grounds that the Appellant did not raise this issue.

State v. Birchard, 2010 VT 57, June 24, 2010
         A fabulous and unanimous decision by the Vermont Supreme Court, J. Burgess writing for the Court. An informant was found to have 2 lbs of marijuana. Working with the police, the informant wore a wire. The cops put the seized marijuana in the informant’s backpack and, after sweeping his car, put him and the pack in the car. The informant drove to the Wendy’s parking lot in Newport where cops observed him and listened in over the wire. Defendant was in the informant’s car and after a code word passed, the cops zoomed in and arrested Defendant. The arresting officer observed a new backpack in the car. The pack was zipped closed. The officer immediately opened the pack, which revealed the marijuana the police had seized from the informant. Judge Bent of Orleans District Court held that the search of defendant’s closed pack violated Article 11. But at trial, the court nullified its suppression order by carving out a state property exception similar to the inevitable discovery rule and permitted the state to introduce the marijuana and to explain all facts surrounding the pack, as long as the prosecutor did not “identify the marijuana as having been contained in defendant’s backpack based upon the officer’s view of it inside the bag after opening the backpack zipper.” David argued on appeal that because the court ruled the initial seizure was unlawful and did not identify grounds for an exception to the warrant requirement recognized under Vermont law, the contents should have been suppressed. The Court agreed. In a strongly worded decision, and in a detailed survey of its favorable Article 11 law, the Court reaffirmed the fundamental requirement that “police cannot open and search a closed container when there is ample opportunity to obtain a warrant…. Even where probable cause exists to seize a closed container, that does not override the requirement for a warrant[.]” ¶ 13. The state argued that defendant had no expectation of privacy in his pack b/c his activities took place in a public lot. The Court responded: “Evidence gathered by voice-monitoring of a private conversation or surveillance of parking lot or driveway may constitute probable cause to arrest, but it does not create an exception to the warrant requirement for a closed-container search.”
         The state urged the Court to consider new exceptions to the warrant requirement: a state property/inevitable discovery exception, a search-incident-to-arrest of a closed container to discover evidence of crime charged exception, and finally, a driver’s consent-to-search his car includes contents of his passenger’s closed containers exception. The Court held: “We have not adopted many exceptions to exclusion under Article 11, nor do we adopt a new one today.” ¶ 19. The Court held that permitting the officers to testify to the presence of marijuana on the passenger floor, which connected the drugs to defendant’s location in the car, did not remove the fruit of the invalid search sufficiently from the jury. Reversed and remanded for new trial.

State v. McManis, 2010 VT 63, June 24, 2010
       A unanimous Court agreed that defendant’s motion to suppress marijuana plants and drug paraphernalia seized at his home should have been granted because the search warrant issued lacked probable cause. The Court limited its review to the four corners of the warrant application and excluded consideration of testimony at the later suppression hearing. The sheriff had written in the application that the CI told him that the CI bought marijuana from defendant at his home in Aug 2007 and saw a bag of marijuana, drug paraphernalia, and a marijuana plant growing in the closet. The sheriff also wrote that the CI said that friends said that they saw marijuana plants growing in defendant’s basement around Sept 2006. The sheriff then wrote that the CI had provided info on other drug transactions in the past, which the sheriff had confirmed. Upholding State v. Robinson and State v. Goldberg, the Court found that the CI’s statements lacked reliability, as required by VRCrP 41(c) and the Aguilar-Spinelli test. Under the rule, a CI’s hearsay statement must be both “credible” and have “a factual basis.” Because the Court did not find the CI credible, it did not consider whether the info had a factual basis. Two ways to demonstrate credibility: (1) CI was inherently credible; or (2) specific information provided by CI in this instance was credible. The Court determined that the sheriff’s vague claim that CI had provided info in the past that was accurate lacked sufficient detail (ie. there was no mention whether past info had led to drug charges or convictions). The Court also determined that the CI’s info was not credible in this instance b/c there was only corroboration of innocent details (like defendant’s address and utility bills). Although the state argued the bills followed the marijuana plants’ growing season, the Court said there was no context provided to explain why an indoor growing season necessarily followed summer months and why the rise in electricity use in the summer couldn’t otherwise be explained by innocent activity, like use of an air conditioner. The Court also determined that the electric bills actually contradicted the CI’s claims. Reversed and dismissed. 

State v. Justin Ford, 2010 VT 39, May 14, 2010
       In a 3-2 decision, the Court reversed conditional pleas to possession of marijuana and narcotics after determining that the Orange County court should have granted a suppression motion based on an illegal search of a house w/o a warrant. The prosecutor argued that a warrantless search of the curtilage of the defendant’s home (walking around to the back of the house and peering into a lighted basement window, where marijuana plants were growing) was lawful because police believed they needed to provide immediate emergency aid to someone (the emergency aid exception to the warrant requirement). But the genesis of the emergency was a 911 call, not made by the defendant, where the caller claimed to be trapped in a car over 40 miles from the home searched by police. When police went to the claimed scene of the accident there was no evidence of an accident. The caller had not claimed any physical injuries. The 911 caller’s contact info was, of course, already in law enforcement databases, and an officer was dispatched to the last known address, which was where the defendant was now living. When police arrived at the home, there was no evidence that anyone was home or that anyone had been there recently: the house was dark; a car was snowed-in in the driveway; and there were only old footprints in the snow. The officer knocked on the front door and did not get a response. The Court, applying an objective standard, held this was not enough to conclude that there was an emergency under the warrant exception. There was also no reasonable connection between the alleged location of the emergency and the home, located miles away. Because warrantless searches are presumed “unreasonable and a constitutional violation” under the Vermont constitution and because the prosecutor failed to meet its burden under the emergency aid exception, the warrantless search was illegal.

Nichols et al v. Hofmann, 2010 VT 36, April 30, 2010
       The Court ruled that the inmate phone statute actually means what it says: out-of-state prisoners are entitled to a debit calling system to call their friends and family in Vermont. And, they are also entitled to the seven free stamps that in-state prisoners receive pursuant to the lowly rational basis test (or at least they will be after remand).
 

State v. Bohannon, 2010 VT 22, March 11, 2010
        Vermont Supreme Court rules that costs arising from a VOP do not fall within the restitution statute, 13 VSA 7043. DOC claimed to be the victim of Defendant’s decision to flee to Washington and subsequently sought restitution for the cost of extraditing defendant back to Vermont for probation violation/revocation proceedings. Lamoille County Judge Cook agreed and after finding that defendant had violated probation by leaving VT without permission, ordered him to pay $4,400 in restitution. The VSC reversed and held that DOC could not recoup this expense through the restitution statute because the expenses were not a direct result of the crime for which defendant was convicted and sentenced. Because a VOP is not a separate crime, it also cannot trigger restitution. The Court made clear that reinstating the original sentence following a VOP does not transform the VOP and the underlying criminal offense into the same act. Reviewing State v. Lewis, 167 Vt. 533 (1998), which upheld restitution awarded to DOC for extradition costs incurred after defendant failed to return from a work furlough program, the Court clarified that Lewis involved a separate crime (escape) which triggered the restitution statute.