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Criminal Justice Division Criminal Division Vermont Attorney General's Office Vermont Criminal Law Month June - July 2012 Vermont Supreme Court Slip Opinions: Full Court Rulings Includes three justice bail appeals VIOLENCE TOWARDS EX-GIRLFRIEND ADMISSIBLE TO SHOW MOTIVE TO ATTEMPT MURDER OF HER BOYFRIEND State v. Mead, full court opinion. 2012 his statements in this trial, and the skeptical VT 36. FAIR TRIAL: JUROR tone of the judge’s questioning was CONTACT WITH WITNESS. harmless in view of the fact that the ADMISSION OF DEFENDANT’S defendant’s credibility as to his version of STATEMENTS IN ANOTHER COURT events was so severely undermined by the multitude of inconsistencies effectively AND JUDGE’S SKEPTICAL exposed by the prosecution’s cross- QUESTIONING; PRIOR BAD ACTS TO examination. On its face, the defendant’s SHOW MOTIVE; JURY UNANIMITY: version of events was not believable, and GUNSHOTS. his credibility was hopeless compromised. 3) The defendant’s prior bad acts, Attempted second degree murder affirmed. consisting of violence and possessiveness 1) The defendant’s right to a fair trial was towards his ex-girlfriend was admissible to not violated when a witness, a police officer, show his motive to kill her new boyfriend. In had a brief conversation unrelated to the addition, the court conducted a Rule 403 trial, outside the courthouse with a juror, weighing of the evidence. 4) The jury did before realizing that the person was a juror. not need to be unanimous in finding which The juror indicated that the conversation of the gunshots were the basis for the would not affect her evaluation of the conviction, where he fired the shots within a credibility of the officer who, in any event, span of minutes, if not seconds, and the did not testify to any contested matters. 2) shots were all part of a continuous course of There was no plain error in the trial court’s events. Skoglund, with Dooley, concurring: admission of the defendant’s videotaped Would find that it was an abuse of appearance in Family Court concerning a discretion, although harmless, for the trial relief from abuse order issued arising out of court to admit a videotape of another judge the same factual circumstances, in which expressing skepticism about the the Family Court judge expresses defendant’s version of events. Doc. 2010- skepticism concerning the defendant’s 414, June 14, 2012. version of events. His statements in that http://info.libraries.vermont.gov/supct/curren setting were almost entirely consistent with t/op2010-414.html 1 DEFENDANT CAN BE DENIED RIGHT TO REPRESENT HIMSELF *State v. Burke, full court opinion. 2012 did not fall within the ambit of Rule 609. 4) VT 50. SPEEDY TRIAL: DELAYS The trial court did not abuse its discretion in CAUSED BY DEFENSE. denying the defendant’s request to proceed IMPEACHMENT: PRIOR FALSE pro se, where it was clear from the record REPORT OF SEXUAL ASSAULT; that he was prone to yelling, outbursts, and threatening behavior, and that he was CONVICTIONS. DENIAL OF unable to listen to and take direction from REQUEST TO PROCEED PRO SE. the trial judge. 5) The trial court did not SHACKLING OF DEFENDANT. abuse its discretion in requiring the INDETERMINATE SENTENCING. defendant to be shackled during trial, where SUFFICIENCY OF THE EVIDENCE. the defendant had threatened the State’s attorney, his own attorney, the court, and Sexual assault affirmed. 1) The defendant others on numerous occasions, and where was not denied his right to a speedy trial steps were taken to minimize attention and where the delays were almost entirely prejudice caused by the shackles. 6) The caused by the defendant’s filing of trial court’s sentence of 18 to 20 years did numerous motions and continuous refusal not violate the indeterminate sentencing to begin taking depositions; the defendant law, because a sentence is not considered raised his right to a speedy trial but fixed as long as the minimum and maximum simultaneously with actions that postponed terms are not identical. 7) The trial court trial; and the defendant cannot assert acted within its discretion in denying the prejudice because he caused significant motion for a new trial based on the delay himself. 2) The trial court acted within insufficiency of the evidence, where the sole its discretion in excluding evidence of the issue was the credibility of the defendant victim’s alleged false report of a sexual and of the complainant, and the jury assault by a third person against a fourth believed the complainant. Doc. 2010-437, person, as having low probative value and June 14, 2012. requiring a mini-trial. 3) The defendant was http://info.libraries.vermont.gov/supct/curren not entitled to cross-examine witnesses for t/op2010-437.html the State concerning prior convictions that RESTITUTION REQUIRES REPLACEMENT COST, NOT PRESENT VALUE State v. Tetrault, 2012 VT 51. Full court published entry order. Restitution RESTITUTION: TRESPASS AS order in trespassing case affirmed. 1) The PREDICATE OFFENSE FOR defendant did not preserve for appeal his RESTITUTION FOR DAMAGED ITEMS argument that unlawful trespass cannot be – PRESERVATION. RESTITUTION: the predicate offense for an award of restitution for damages arising from his REPLACEMENT COST VERSUS other actions while engaged in the trespass, ACTUAL VALUE. RESTITUTION: such as damaging or destroying items REPLACEMENT OF USED BUT NOT present in the place where he was DESTROYED ITEMS. trespassing. 2) The defendant was responsible for the replacement costs for 2 items that he had merely used, and not court was justified in awarding the destroyed, such as pots and pans and replacement cost of items, not their actual bedding, where that use involved a value at the time of the trespass. The disturbing violation of personal privacy. Not defendant’s suggestion that the knowing the identity of the squatters or the replacement cost of, say, a toaster, can be precise activities they undertook while estimated by what it might fetch at a yard illegally occupying his home, the owner sale is “pettifoggery.” Doc. 2011-068, July was, reasonably, uncomfortable ever using 5, 2012. these items again, and replaced them at a http://info.libraries.vermont.gov/supct/curren relatively modest cost at Wal-Mart. 3) The t/eo2011-068.html FAILURE TO INSTRUCT THAT DEFENDANT MUST KNOW OF LACK OF CONSENT NOT PLAIN ERROR WHERE DEFENSE WAS NOT CONSENT *State v. Hammond, 2012 VT 48. intrusion, where the trial court also noted SEXUAL ASSAULT: SUFFICIENCY OF that anal insertion had not been charged. 4) THE EVIDENCE. JURY There was no plain error in the trial court’s INSTRUCTION: DEFINITION OF failure to instruct the jury that the defendant SEXUAL ACT, GENITAL OPENING; must have known that the sexual contact was not consensual, where the crux of the DEFENDANT’S KNOWLEDGE OF defense was lack of intentional sexual LACK OF CONSENT. RAPE SHIELD contact with the complainant, not that the STATUTE: COMPLAINANT’S LACK OF defendant perceived her as acquiescing to a SEXUAL EXPERIENCE. OPINION sexual advance. 5) Even assuming, without TESTIMONY: WITNESSES NOT deciding, that the rape shield statute bars OFFERED AS EXPERTS. evidence of a complainant’s lack of prior sexual experience, there was no error in Full court published opinion. Sexual assault permitting testimony to this effect here, and lewd and lascivious conduct affirmed. because the line of testimony was intended 1) The trial court correctly denied the to rebut the defense claim that the defendant’s motion for judgment of acquittal complainant’s failure to fully disclose the despite the defendant’s argument that the nature of the act undermined her credibility. complainant’s testimony was objectively Her lack of experience was used by the incredible. The question of the witness’s State to explain her uncertainty over exactly objective credibility was ultimately for the what had happened; and in any event the jury to determine, and not for the Court to defense had opened the door to the weigh on appeal. 2) The trial court correctly complainant’s knowledge of sexual matters. denied the defendant’s motion for a new 6) There was no plain error in permitting lay trial in the interest of justice based on the witnesses to testify to their experience with insufficiency of the evidence. This claim delayed reporting by adolescent females, as was not raised below and therefore was not these witnesses were not necessarily preserved for appeal. 3) A jury instruction unqualified to give such testimony. Nor did which contained the entire definition of these witnesses improperly rely upon “sexual act,” including anal intrusion, given anecdotal evidence on this point. Doc. after the jury asked if the anus qualified as a 2011-100, July 6, 2012. genital opening, was not plain error even http://info.libraries.vermont.gov/supct/curren though there was no allegation of an anal t/op2011-100.html. 3 IDLING TRUCK IN PARKING LOT AT NIGHT IS NOT REASONABLY SUSPICIOUS State v. Paro, 2012 VT 53. MV STOPS: previously been burglarized does not give REASONABLE SUSPICION. rise to a reasonable and articulable suspicion of criminal activity. Docs. 2011- Full court published entry order. Denial of 184 and 185, July 10, 2012. motion to suppress reversed. Observing a http://info.libraries.vermont.gov/supct/curren truck idling in the middle of the night in the t/eo2011-184.html parking lot of an auto repair shop that had Vermont Supreme Court Slip Opinions: 3 Justice Panel Rulings Note: The precedential value of decisions of three-justice panels of the Vermont Supreme Court is governed by V.R.A.P. 33.1(c), which states that such decisions “may be cited as persuasive authority but shall not be considered as controlling precedent.” Such decisions are controlling “with respect to issues of claim preclusion, issue preclusion, law of the case, and similar issues involving the parties or facts of the case in which the decision was issued.” ELEMENT OF CRIME CAN ALSO BE RELIED UPON TO AGGRAVATE SENTENCE State v.
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