CHAPTER 42

Posttrial Motions in District Court

§ 42.01 Motions for New Trial (V.R.Cr.P. 33)

§ 42.02 - Time Limits

§ 42.03 - Ten-Day Motions

§ 42.04 - Two-Year Motions

§ 42.06 Motions for New Trial and Appeals

§ 42.07 Motions for Judgment of Acquittal (V.R.Cr.P. 29(c))

§ 42.08 Motions in Arrest of Judgment (V.R.Cr.P. 34)

§ 42.08 Motions To Withdraw a Guilty Plea (V.R.Cr.P. 32(d))

§ 42.01

Motions for New Trial (V.R.Cr.P. 33)

The rules provide a number of postverdict and postplea remedies in the district court, in addition to the superior court and supreme court remedies discussed in other chapters.{1} After a guilty verdict, the defendant can move for judgment of acquittal,{2} for a new trial,{3} and "in arrest of judgment";{4} in guilty plea cases the defendant can move to withdraw the plea.{5} Even after the sentence, the court can correct an illegal sentence or a sentence imposed in an illegal manner,{6} a subject which is discussed in another chapter.{7}

Rule 33 gives a trial judge broad discretion to order a new trial "if required in the interests of justice." A motion for new trial is broadly discretionary with the trial judge and the majority of appellate decisions on new trial motions do no more than reaffirm the deference which a trial judge's decision must be accorded.{8}

In a bifurcated trial the judge can grant a new trial as to one part of the case and leave the verdict standing as to the other, unless the error that necessitated the new trial prejudiced the entire proceeding.{9}

§ 42.02

- Time Limits

If the motion is based on newly discovered evidence affecting the merits it must be filed within two years of the final judgment (the sentence); otherwise within ten days of the verdict in a jury trial, or the findings in a judge-tried case, unless the court allows an extension within the ten-day period (which it almost invariably will).{10} These time limits are jurisdictional in much the same way that a notice of appeal is, and a trial judge lacks the power to consider a late motion.{11}

The ten-day limit applies even when the motion is based on newly discovered evidence, unless the new evidence affects or relates to the question of guilt or innocence. In State v. Sheppard the Vermont Supreme Court held that newly discovered evidence of juror bias was not the sort of "newly discovered evidence" to which Rule 33's two-year filing period applied.{12} The same is probably true of other new evidence which bears on the fairness of the trial but not directly on the guilt or innocence of the accused, such as evidence of prosecutorial misconduct.{13} The defendant's usual remedy in such cases is a petition for postconviction relief in superior court.{14}

§ 42.03

- Ten-Day Motions

Motions that do not allege newly discovered evidence on the merits of a trial may be based on any trial error "that would lead to reversal on appeal. . . ."{15} A properly preserved error need not be reasserted in a new trial motion to be raised on appeal and, conversely, an objection that has not been properly preserved cannot be revived by asserting it for the first time in a motion for new trial. But the motion is a proper and even essential vehicle for errors which the preverdict record does not adequately reflect, such as off-the-record juror misconduct,{16} or claims that the defendant's waiver of the right to testify was not voluntary or knowing.{17}

New trials can also be granted on the nonappealable ground that "weighing all the evidence including the credibility of witnesses, the verdict is clearly against the weight of the evidence."{18} In his assessment of the weight of the evidence the judge does not act as a "thirteenth juror," and he should order a new trial only if the evidence "preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result."{19}

A new trial motion may not challenge the legal sufficiency of the evidence, and such claims should be brought as motions for acquittal under Rule 29(c).{20} The two motions can be combined, however,{21} and any verdict that fails the Rule 29 test for sufficiency (no reasonable juror could find guilt beyond a reasonable doubt) probably fails the Rule 33 "clearly against the weight of the evidence" test as well.{22}

§ 42.04

- Two-Year Motions

A new trial based on newly discovered evidence requires proof of five elements:

(1) it must appear that the new evidence would probably change the result upon retrial; (2) the new evidence must have been discovered subsequent to trial; (3) the evidence could not have been discovered earlier by the exercise of due diligence; and (5) the evidence is not merely cumulative or impeaching.{23}

Irrationally, the requirement that previously undiscovered evidence will "probably" change the result is no different from the federal due process test for a new trial when the prosecutor has suppressed exculpatory evidence.{24} "Due diligence" may require defense counsel to move for a continuance to try to track down suspected exculpatory evidence.{25}

When the new evidence consists of a witness's recantation of earlier testimony the test is slightly different. A new trial on recanted testimony should be given when

(1) the court is reasonably well satisfied that the testimony given by a material witness was false;

(2) without the testimony, the jury probably would have reached a different conclusion; and

(3) the party seeking the new trial was taken by surprise when the false testimony was given, or did not know of its falsity until after the trial.{26}

The third requirement means essentially that the recanted testimony may not be "merely cumulative or only of impeaching effect," and should not be imposed "literally" in cases where the defendant contended all along that the recanting witness was lying.{27}

Stringent as these tests are, a defendant who makes a timely and not patently frivolous motion for new trial on newly discovered evidence is entitled to an evidentiary hearing on request.{28}

§ 42.05

- Motions for New Trial and Appeals

Motions for new trial, except for those based on newly discovered evidence, are generally filed soon after the verdict and decided before an appealable final judgment (i.e., the sentence) has been entered; a notice of appeal filed thereafter appeals the denial of the motion, along with any other claimed errors in the proceeding. If the judge does not decide the motion until after sentence, the thirty-day appeal period runs from the date the motion is denied.{29}

To be on the safe side, the denial of the motion, as well as the conviction itself, should be specifically designated in the notice of appeal.{30}

Motions based on newly discovered evidence may be filed while an appeal is pending but may only be granted if the supreme court remands the case.{31} The trial court can probably deny the motion without a remand, after which the defendant must file a second notice of appeal if he wants the supreme court to review the denial along with his other appellate claims.{32}

A defendant who has not appealed his conviction and who brings a motion for new trial after the thirty-day appeal period has run, can appeal only the denial of the motion for new trial, not the trial itself.{33}

The prosecution has no right of appeal from the grant of a motion for new trial, but it may sometimes be able to win review by a petition for extraordinary relief.{34}

§ 42.06

Motions for Judgment of Acquittal (V.R.Cr.P. 29(c))

A motion for acquittal may be made for the first time, or renewed, after a verdict of guilty, or if the jury is discharged without reaching a verdict.{35} The time limit is the same as for new trial motions (ten days from the verdict or discharge, unless an extension is granted within the ten days). The motion is governed by the same standards that apply to preverdict motions for acquittal.{36}

§ 42.07

Motions in Arrest of Judgment (V.R.Cr.P. 34)

Claims that the information or indictment "does not charge an offense" or that the trial court was "without jurisdiction" can be raised by a motion in arrest of judgment pursuant to V.R.Cr.P. 34. The motion must be filed within thirty days of the verdict or plea; this deadline can be extended only on a request filed before the thirty days are up. For the types of claim which the rule encompasses see § 5.06 (pleadings that fail to charge an offense) and § 17.01 (other jurisdictional defects).

Because these claims are considered jurisdictional they can be raised for the first time on direct appeal, and the failure to move in arrest of judgment does not operate as a waiver.{37}

§ 42.08

Motions To Withdraw a Guilty Plea (V.R.Cr.P. 32(d))

A motion to withdraw a guilty or nolo plea can be filed only by a defendant who is not "in custody under sentence" (defendants who are serving a sentence have a remedy in superior court by petition for postconviction relief).{38}

If the defendant has been sentenced to a term of imprisonment but has not yet begun to serve it, the motion must be filed within thirty days of the sentence. If the sentence does not include any term of imprisonment, the motion can be filed "at any time" because in such cases the defendant does not have the option of collateral relief in the superior court.{39}

There are two standards for granting the motion, depending on whether it is filed before or after sentence. A motion filed before sentence should be granted "if the defendant shows any fair and just reason and that reason substantially outweighs any prejudice which would result to the state from the withdrawal of the plea."{40} Although withdrawal should be liberally allowed, the defendant has no "absolute right" to withdraw.{41} A judge's refusal to approve a plea-bargained sentence recommendation constitutes "fair and just reason" per se, however.{42}

On the other hand, a motion made after the sentence should be allowed "only to correct manifest injustice[,]"{43} and a motion that does not "objectively address" this standard can be denied without a hearing.{44}

In an appeal from a guilty plea conviction, in which the defendant has made and lost a motion to withdraw the plea, the defendant's notice of appeal should specifically designate the order denying the motion, as well as the conviction itself.{45} A notice of appeal that is timely as to the denial of the motion, but filed more than thirty days after the sentence, will appeal only the denial of the motion.{46}

1. See chapter 40 (appeals), chapter 41 (superior court remedies).

2. V.R.Cr.P. 29(c).

3. V.R.Cr.P. 33.

4. V.R.Cr.P. 34.

5. V.R.Cr.P. 32(d).

6. V.R.Cr.P. 35(a).

7. See §§ 37.21-37.24, supra.

8. See, e.g., State v. Baril, 155 Vt. 344, 347 (1990); State v. Briggs, 152 Vt. 531, 542 (1989); State v. Jewell, 150 Vt. 281, 285 (1988); State v. Potter, 148 Vt. 53, 63 (1987); State v. Mecier, 145 Vt. 173, 181 (1984); State v. Richards, 144 Vt. 16 (1983); State v. Dezaine, 141 Vt. 335, 338 (1982).

9. State v. Baril, 155 Vt. 344, 347-49 (1990) (judge could grant new trial on substantive DUI charge and leave standing the verdict in bifurcated enhancement trial finding defendant guilty of prior offense).

10. V.R.Cr.P. 33; State v. Sheppard, 155 Vt. 73, 73 n.* (1990).

11. State v. Cohen, No. 87-329, slip op. 3 (Vt. July 8, 1991) (mem.); State v. Sheppard, 155 Vt. 73, 77-78 (1990).

12. State v. Sheppard, 155 Vt. 73, 76-77 (1990). See also State v. Miner, No. 91-555 (Vt. Nov. 25, 1992) (mem.).

13. See State v. Sheppard, 155 Vt. 73, 77 (1990).

14. State v. Sheppard, 155 Vt. 73, 76 (1990).

15. V.R.Cr.P. 33, Reporter's Notes. The notes offer, as examples, "the absence of a witness, mistake or surprise, objections to jurors, exclusion and admission of evidence, instructions to the jury, and the like."

16. See State v. Sheppard, 155 Vt. 73 (1990).

17. State v. Mumley, 153 Vt. 304, 306 (1989).

18. Reporter's Notes (citing 2 Wright, Federal Practice and Procedure § 553 (1969)); State v. Jewell, 150 Vt. 281, 284 (1988).

19. State v. Trombley, 148 Vt. 293, 279 (1987) (quoting State v. Ladabouche, 146 Vt. 279, 285 (1985)).

20. Reporter's Notes. See § 42.06, infra.

21. State v. Robillard, 146 Vt. 623, 625 n.* (1986).

22. See State v. Trombley, 148 Vt. 293, 298 n.1 (1987) (Rule 29 test more stringent that Rule 33 test).

23. In re Hamlin, 155 Vt. 98, 101 (1990) (quoting State v. Smith, 145 Vt. 121, 131 (1984)). See also State v. Miller, 151 Vt. 337, 338 (1989). Compare State v. Sheppard, 155 Vt. 73, 75 (1990) (evidence must "give reasonable assurance that it will lead to a different result upon retrial").

24. See § 24.09, supra. But see State v. Berard, 134 Vt. 220, 223-24 (1976).

25. See State v. Richards, 144 Vt. 16, 22 (1983); State v. Dezaine, 141 Vt. 335, 338 (1982).

26. State v. Briggs, 152 Vt. 531, 541 (1989) (quoting State v. Robillard, 146 Vt. 623, 629 (1986)).

27. State v. Briggs, 152 Vt. 531, 541-42 (1989).

28. State v. Unwin, 142 Vt. 562, 564-65 (1983).

29. V.R.A.P. 4. See § 40.03.

30. See V.R.A.P. 3(d) (notice of appeal "shall designate the judgment, order or part thereof appealed from"). Cf. State v. Wisell, 136 Vt. 541, 542 (1978) (notice of appeal must specifically designate denial of motion to withdraw plea).

31. V.R.Cr.P. 33.

32. V.R.Cr.P. 33, Reporter's Notes.

33. State v. Patrick, 145 Vt. 207, 208 (1984).

34. See § 40.09.

35. V.R.Cr.P. 29(c).

36. See § 32.13.

37. State v. Phillips, 142 Vt. 283, 290 (1982); V.R.Cr.P. 34, Reporter's Notes. Raising the claim for the first time after appeal, in a postconviction relief petition, may be too late. Compare V.R.Cr.P. 34, Reporter's Notes ("these issues may be raised on direct appeal or in collateral proceedings") with In re Stevens, 146 Vt. 6, 9 (1985) (defendant must show defect was prejudicial).

38. See State v. Cooley, 135 Vt. 409 (1977); § 41.01.

39. V.R.Cr.P. 32(d), Reporter's Notes - 1980 Amendment.

40. See State v. Hamlin, 143 Vt. 477, 480 (1983) (motion to withdraw should have been granted on state's failure to disclose defendant's prior record).

41. State v. Cross, 142 Vt. 44, 46 (1982).

42. State v. Bergerson, 144 Vt. 200, 203 (1984); State v. Belanus, 144 Vt. 166, 170 (1984); See § 36.06.

43. See State v. Armstrong, 148 Vt. 344, 345 (1987). The Reporter's Notes give as examples "evidence that the plea was not voluntary or not made with the advice of counsel, where the prosecution has breached a plea agreement, or where the requirements for taking the plea imposed under Rule 11 have not been complied with. . . ."

44. State v. Tanner, 148 Vt. 384, 385 (1987).

45. State v. Wisell, 136 Vt. 541, 542 (1978).

46. _____