William A. Nelson
____________________
Published by the Vermont Bar Association
35-37 Court Street, P.O. Box 100
Montpelier, Vermont 05601-0100
Copyright 1996 by William A. Nelson
CHAPTER 1
INTRODUCTION
§ 1.01 Criminal Law and the State Constitution
n. 19:
The court has cautiously extended its state constitutional jurisprudence to other areas. See State v. Delisle, 162 Vt. 293, 309-12 (1994) (defendant's right under ch. I, art. 10 to "call for evidence in his favor" imposes special duty on prosecution to preserve potentially exculpatory evidence) (discussed in § 24.10, infra); Conway v. Cumming, 161 Vt. 113, 122-24 (1993) (Dooley and Johnson, JJ., dissenting) (proposing a potentially far-reaching state constitutional due process test).
§ 1.08 New Law
p. 1-9, after first sentence of first full paragraph:
The department of libraries service, which has been expanded to include older Vermont Supreme Court and Second Circuit caselaw (as well as the current Vermont Supreme Court decisions), is accessible at the internet address dol.state.vt.us. Current United States Supreme Court opinions are available on the World Wide Web through Cornell Law School, at www.law.cornell.edu. The Cornell service also includes current decision of all federal courts of appeals; the decisions of the Second Circuit can be accessed directly through Pace Law School, at www.law.pace.edu.<P>
CHAPTER 2
SEARCH AND SEIZURE
§ 2.03 The Exclusionary Rule
n. 15:
But see State v. Robinson, No. 95-556 (Vt. July 26, 1996): Officers took the defendant into custody on an order of summary contempt, searched him, and discovered a switchblade knife and marijuana. He claimed that the summary contempt order was illegal and that the seizures were therefore suppressible as fruits of official illegality. In a cost-benefit analysis strongly reminiscent of the United States Supreme Court precedents which it had rejected in Oakes, the Vermont Supreme Court refused to apply the exclusionary rule to this situation. "There simply are no benefits associated with improvements to police work or the adjudicative process that would be achieved by application of the exclusionary rule to the facts of this case." Id., slip op. 10-11.
n. 21:
See also State v. Robinson, No. 95-556 (Vt. July 26, 1996) (state constitutional exclusionary rule not applied to searches incident to arrest for summary contempt).
§ 2.04 Standing
See also State v. Morris, No. 94-299, slip op. 9 n.7 (Vt. March 22, 1996) (defendant has standing under State v. Wood to raise article 11 challenge to police search of curbside garbage).
§ 2.05 Fruits of the Intrusion: The Wong Sun Test
n. 35:
See also State v. Morris, No. 94-299, slip op. 18-20 (Vt. March 22, 1996) (residual evidence did not establish probable cause); State v. Costin, No. 94-226 (Vt. May 18, 1995) (mem.) (court need not decide legality of video surveillance because search warrant affidavit stated other evidence establishing probable cause).
n. 41:
Compare State v. Crandall, 162 Vt. 66, 71 (1994) (bag of marijuana, which defendant threw at police officers after police told him they intended to search, treated as fruit of arguably unlawful search).
§ 2.10 Self-Help: The Right to Resist Unlawful Intrusions
See State v. Ellison, No. 92-336 (Vt. March 1, 1993) (mem.): The police arrived at the defendant's house in response to a report of domestic abuse, and were admitted by his children, who said their father was asleep and their mother was away. The officers went to the defendant's room and roughly woke him up. He became angry, and demanded that they leave. When he "jammed his forearm into the chest of one of the officers" he was charged with assault. The Vermont court rejected the challenge to the warrantless police intrusion and continued presence in defendant's house, finding that defendant had numerous alternatives to redress this violation of his privacy without resorting to violence.
n. 71:
The Vermont court has held that a defendant can not bring a civil action for unlawful arrest if he has been convicted of the crime for which he was arrested, and that conviction has not been invalidated. Wool v. Decker, No. 94-613 (Vt. Dec. 15, 1995) (mem.). See Heck v. Humphrey, 114 S.Ct. 2364 (1994).
§ 2.11 Protected Areas and Interests: Privacy and Property
n. 85:
See State v. Rogers, 161 Vt. 236, 241-43 (1993), affirming findings that a marijuana plot was within the curtilage, based on the criteria of United States v. Dunn, 480 U.S. 294, 301 (1987). See § 2.42.
§ 2.13 Levels of Protection: An Overview
n. 109.:
Cf. State v. Morris, No. 94-299 (Vt. March 22, 1996) (residents do not abandon article 11 privacy interest in curbside garbage) discussed in § 2.43, infra.
§ 2.14 Probable Cause
n. 145:
See also State v. Meunier, 137 Vt. 586 (1979) (probable cause to suspect crime committed but insufficient grounds to arrest defendant).
p. 2-20, new paragraph after n. 146:
Mere presence in the neighborhood of contraband does not amount to probable cause. In State v. Blais, No. 94-148 (Vt. June 19, 1995) (mem.) the defendant was arrested walking out of a marijuana patch which the police had staked out with seismic detectors. The detectors indicated his presence in the garden for half an hour, but did not indicate what he was doing there. The trial court found no probable cause for the arrest and suppressed the derivative evidence, and the supreme court affirmed. Mere presence at the location of criminal activity doesn't amount to probable cause. The police could have conducted a Terry stop, but the full-scale arrest was illegal.
n. 147:
See also State v. Cooper, No. 93-490, slip op. 9 (Vt. Nov. 10, 1994); State v. Platt, 154 Vt. 179, 185 (1990).
p. 2-21, after last paragraph:
There is at least one situation where the subjective motivations of the police can be controlling. In State v. Hollis, 161 Vt. 87 (1993) police stopped the defendant's car on the basis of a tip, confirmed that his license was under suspension and searched the car, finding marijuana. The defendant was arrested for possession and taken to the police station, where he attempted to jettison a bag containing cocaine and additional marijuana. He claimed that the search of his vehicle was illegal and that the drugs uncovered at the police station should be suppressed as fruits of the initial illegality. The state conceded the illegality of the vehicle search, but contended that his license suspension provided an independent and objectively reasonable basis for his detention at the police station. The Vermont Supreme Court agreed with the state that the police could have arrested the defendant for driving with a suspended license, and it also agreed that the validity of an arrest generally "hinges upon whether the officer had probable cause to arrest, not whether the officer articulated the correct basis for the arrest." Id., at 93. Nevertheless, the court would not "indulge in ex post facto extrapolations of all crimes that might have been charged on a given set of facts at the moment of arrest." Id., quoting United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971). Following Atkinson, the court held that the legality of the arrest depends on the relationship between the articulated grounds, and the post hoc justification: "where probable cause does not exist for the articulated offense, there is a valid arrest only if that offense, and the offense for which there was probable cause, are related." Id. Offenses are "related" when "the conduct that served as the basis for the charge for which there was no probable cause could, in the eyes of a similarly situated reasonable officer, also have served as the basis for a charge for which there was probable cause." Id., at 94, quoting Trejo v. Perez, 693 F.2d 482, 486 (5th Cir. 1982). Because the marijuana-possession charge and the DLS charge were not so related, the drugs jettisoned at the police station were suppressible as fruits of an unlawful arrest. Id., at 95.
§ 2.15 Collective Information and Misinformation
n. 161:
See Arizona v. Evans, 115 S.Ct. 1185 (1995) (errors caused by court clerical staff that result in an unconstitutional arrest - the failure to advise police that a bench warrant had been quashed -don't require suppression of evidence absent showing of bad faith).
§ 2.16 Informants
n. 168 :
See also State v. Emmi, 160 Vt. 377, 380-81 (1993).
pp. 2-23, after n. 173:
In State v. Langlois, No. 94-031 (Vt. Sept. 1, 1995) the court reversed the denial of a motion to suppress, finding that no probable cause existed for a search of a vehicle. A person who gave his name to the police, but was unknown to them and never heard from again, called and said that the defendant was selling marijuana and driving around in a 1989 gray four wheel drive GMC pickup with a paper bag of marijuana behind the front seat. The officer saw the truck, noticed it had no front license plate, and stopped it on that basis. The absent license plate provided a sufficient basis for the stop, but the officer's subsequent search of the car and seizure of the bag failed for lack of probable cause. The informant had no track record of reliability, and the facts he related were of a kind readily available to the public.
The court left undecided whether the probable cause test under the state constitution should be the "totality of circumstances" test of Illinois v. Gates, 462 U.S. 213 (1983), or the "two-pronged" Aguilar-Spinelli test.
In State v. Emmi, 160 Vt. 377 (1993) the court rejected a claim that the informant's reliability was established only by prior illegal conduct (i.e., prior wired entries into the home, in violation of State v. Blow, 157 Vt. 513 (1991)). Only the wire was unlawful under Blow and none of the "reliability" showing came directly from the wire. "Informational reliability," as distinct from the informant's personal credibility, was sufficiently established by police supervision of the prior "controlled buys" in the case.
n. 177:
But see State v. Langlois, No. 94-031 (Vt. Sept. 1, 1995), discussed in § 2.16, n. 173.
In State v. Heuer, No. 95-172 (Vt. January 8, 1996) (mem.) the court held that probable cause was sufficiently established in an affidavit by the defendant's estranged husband claiming he saw marijuana in her home when he picked up his children for the weekend. The trial court sufficiently weighed the husband's motive to fabricate, and there were no material omissions or misrepresentations in the affidavit.
§ 2.17 Reasonable Suspicion
n. 185:
See State v. Welch, 162 Vt. 635 (1994) (mem.) (informant's suspicion of wrongdoing no more than a hunch, not justifying vehicle stop).
nn. 186-87
See also State v. Crandall, 162 Vt. 66, 70-71 (1994) (anonymous tip sufficiently detailed and corroborated by subsequent conduct to warrant automobile stop); State v. Welch, 162 Vt. 635, 636 (1994) (mem.) (citizen informant presumed reliable, but information too vague to justify stop).
§ 2.21 The Particularity Requirement
n. 215:
See State v. Amidon, No. 94-287 (Vt. May 20, 1995) (mem.): Police got a warrant to search room 329 at a motel. Room 329 didn't exist, and the intended target was 229, which they searched. The trial court suppressed the evidence but the supreme court reversed, holding that there were enough descriptive facts in the warrant to identify the correct room, notwithstanding the error in the number. Also, the officer executing the warrant knew the correct room, and although personal knowledge can't cure a "vitally deficient description" it can be considered in judging the effect of a "partly erroneous" description.
§ 2.23 The Knock and Announce Requirement
In Wilson v. Arkansas, 115 S.Ct. 1914 (1995) the United States Supreme Court held that the common law knock and announce rule is part of the fourth amendment's "reasonableness" requirement, although it can be dispensed with in a variety of exigent circumstances. See also State v. Ogden, 161 Vt. 336, 338-40 (1993) (assuming without deciding that the police must ordinarily knock and announce their identity and purpose, and suggesting that exigent circumstances may not justify forcible entries which damage the premises).
§ 2.29 Pretextual Arrests
In Whren v. United States, 64 L.W. 4409 (1996), the Supreme Court held that police motivations were irrelevant to the legality of a traffic stop. An arrest or other "seizure" for a civil traffic offense is lawful so long as police have an objectively reasonable basis, whether or not they have ulterior motives, and whether or not reasonable police officers would have stopped the car without such motives. The irrelevance of subjective motivation is limited to cases where the police have probable cause for the challenged intrusion. The special treatment accorded to "searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes." Id., at 4410-11.
But see State v. Hollis, 161 Vt. 87 (1993), discussed in § 2.14.
§ 2.30 Nonconstitutional Limitations on the Power to Arrest
n. 265:
In State v. Forcier, 162 Vt. 71 (1994), the court suppressed a confession obtained after a DUI arrest for a V.R.Cr.P. 3 violation. Rule 3(a)(5) gives police the power to make warrantless arrests for DUIs not committed in their presence "within two hours of the time of the alleged offense" but "only for the limited purpose of obtaining a sample of breath or blood." The two hour limit relates to actual arrest, not the formal announcement of arrest, and the arrest in this case was within that time. Nevertheless, the rule implicitly prohibits post-arrest interrogations.
§ 2.33 Scope of the Terry Stop and Frisk
n. 301:
In State v. Burgess, No. 93-448 (Vt. Jan. 27, 1995) the court held that an officer who pulls up behind a stopped vehicle and activates his blue lights has effectively "seized" the vehicle. "[A] show of authority tending to inhibit a suspect's departure from the scene is sufficient to constitute a stop, even though the vehicle is already stopped at the time of an approach by police." Id., slip op. 2.
n. 315:
Plain Feel: In Minnesota v. Dickerson, 113 S.Ct. 2130 (1993) the United States Supreme Court held that a police officer can seize an object discovered in the course of a lawful frisk, which the officer's sense of touch makes it "immediately apparent" is contraband. As in plain view cases the "immediately apparent" requirement means just that: the officer in this case exceeded his "plain touch" authority by manipulating a lump of crack cocaine in the suspect's pocket until he was sure what it was.
§ 2.38 Rule 41.1
n. 356:
See State v. Beyor, 161 Vt. 565 (1993) (mem.) (state may not use V.R.Cr.P. 41.1 order to obtain an evidentiary blood sample from a DUI suspect who refuses to submit to an evidentiary test; 23 V.S.A. § 1202(b) "clearly and unequivocally provides that if a person refuses to submit to a test it shall not be given.")
§ 2.39 "Special Needs" Body Searches
n. 357:
In Vernonia School District 47J v. Acton, 115 S.Ct. 2386 (1995), the court approved a random drug-testing program for high school athletes. The situation presented "special needs" which allowed the state to dispense with the normal warrant and probable-cause requirements.
§ 2.42 Land
n. 375:
See State v. Rogers, 161 Vt. 236 (1993): Acting on an anonymous tip police entered private property and after walking 100 feet through woods came to a vantage point where they observed a large garden surrounded by fencing and surveillance equipment. They got a warrant and found marijuana (which had been harvested) in a house and outbuilding. The Vermont Supreme Court held that the discovery of the garden didn't violate the fourth amendment or article 11, even though the searchers had to pass through private property to see it, and even though the
garden itself was within the curtilage. The police intrusion to their point of observation didn't violate the fourth amendment because their path went through unfenced, unposted "open fields," and their plain view observation was "unaided by technology." It didn't violate article 11 because the landowner took no "affirmative action" (such as posting) to exclude the public; a natural barrier formed by trees wasn't good enough.
n. 372:
In State v. Costin, No. 94-226 (Vt. May 18, 1995) (mem.) the defendant argued that article 11 was violated by electronic surveillance - a robot video camera - on unposted private property. The court avoided the merits of the claim.
§ 2.43 Containers
p. 2-50, new paragraph after n. 377:
In State v. Cooper, No. 93-490 (Vt. Nov. 10, 1994), the court upheld the detention and subsequent search of a mailed package. The police needed only reasonable suspicion, not full probable cause, to detain the package for purposes of a dog-sniff. The package fit certain elements of the postal service's "drug package profile" (e.g., a false return address, and the fact that it was sent from Tucson by Express Mail) and this was enough to justify its detention. After the dog sniff a search warrant was issued by a federal judge on an affidavit which set out sufficient facts (including the dog's training and "alert" in response to the package) to state probable cause. See also State v. Coburn, No. 95-537 (Vt. July 12, 1996), another mailed-package search, discussed in n. 385, infra.
p. 251, after n. 380:
In State v. Morris, No. 94-299 (Vt. March 22, 1996), the court held that article 11 forbids the warrantless search of secured opaque trash bags left at the curbside for garbage collection. The court declined to follow the contrary fourth amendment rule of California v. Greenwood, 486 U.S. 35 (1988), which permits such searches on an abandonment theory. Police can ordinarily seize curbside bags without a warrant (and probably without any particular level of suspicion) but they need a warrant before searching their contents.
n. 385:
See State v. Coburn, No. 95-537 (Vt. July 12, 1996): Customs agents at JFK airport seized and searched two suitcases arriving on a flight from Jamaica after dogs had "alerted" to their contents, finding marijuana. The agents then repacked everything and sent it to Vermont, where state police again opened and repacked the suitcases, before delivering them to the defendant. Affirming denial of the defendant's motion to suppress the Vermont Supreme Court held (1) that the initial search was lawful as a border search (refusing to judge it by Vermont Constitutional standards inasmuch as the federal interest was paramount), and (2) that after the customs search defendant didn't have any privacy interest in the suitcases: the repacking and subsequent Vermont search didn't violate his rights under the fourth amendment or article 11 (citing Illinois v. Andreas). The transfer from New York to Vermont, and from federal to state officials, was not constitutionally significant.
The court also rejected a separate challenge to the seizure of the defendant's luggage. The customs agents waited three days before forwarding the suitcases to Vermont, and the Vermont state police retained them an additional two days. The court distinguished the luggage detention United States v. Place, 462 U.S. 696 (1983), which was based reasonable suspicion falling short of probable cause. Here, by contrast, the police had full probable cause and could retain the luggage indefinitely - as contraband and evidence of crime - without offending either the fourth amendment or article 11.
§ 2.46 Plain View
p. 2-54, after first full sentence:
"[N]ot only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself." State v. Trudeau, No. 95-494, slip op. 6 (Vt. July 26, 1996), quoting Horton v. California, 496 U.S. 128, 136 (1990). This right of access can be supplied by exigent circumstances. In Trudeau the risk that passengers might remove a beer can from the floor of a car stopped in a drunk driving arrest justified a warrantless entry and seizure of the can, which in turn justified the discovery and seizure of marijuana. Id., slip op. 10-13.
n. 403:
See State v. Coleman, No. 95-124 (Vt. Dec. 18, 1995) (mem.): During a search of the defendant's trailer for stolen property pursuant to a warrant, the police found "a translucent plastic box containing approximately 1000 marijuana seeds." The court affirmed denial of the motion to suppress in light of an unchallenged trial court finding that the contents of the box were readily apparent to the police without the need to open it.
See also State v. Trudeau, No. 95-494, slip op. 7-9 (Vt. July 26, 1996) (partially full beer can immediately apparent evidence of drunk driving).
§ 2.47 Enhanced Plain View
n. 408:
See also State v. Trudeau, No. 95-494, slip op. 7 (Vt. July 26, 1996) (flashlight).
n. 410:
See also State v. Coburn, No. 95-537, slip op. 3 (Vt. July 12, 1996) (dog sniff).
§ 2.51 Abandonment
n. 432:
The article 11 rule is different. See State v. Morris, No. 94-299 (Vt. March 22, 1996), discussed in § 2.43.
§ 2.52 "Special Needs" Searches
n. 439:
See also State v. Lockwood, 160 Vt. 547 (1993) (probation search), discussed in § 38.06, infra.
In State v. Kulakov, Nos. 92-660 & 93-412 (mem.) the court in a single justice memorandum struck a conditions of release order requiring the defendant to permit the Burlington Police Department to search for and seize any weapons in his residence, citing State v. Moses, 159 Vt. 294 (1992).
§ 2.53 Inventory and "Public Safety" Searches
p. 2-60, new paragraph:
In State v. Marcello, 157 Vt. 657 (1991) (mem.), the court held that a police officer, who had been told by a motorist to stop defendant's car because there was "something wrong with that man[,]" lacked reasonable suspicion of wrongdoing but could nevertheless lawfully stop the car as a police "community caretaking function": the officer had "specific and articulable facts" indicating that the defendant may have been in need of assistance, and the stop was a reasonable safety measure. See also State v. Merritt, 149 Vt. 529, 530 (1988) (police could investigate driver slumped over steering wheel). Compare State v. Burgess, No. 93-448 (Vt. Jan. 27, 1995) (no articulable safety concerns justified display of blue lights behind parked car).
§ 2.55 Seizure of Vehicles on Reasonable Suspicion
n. 464:
See also State v. Crandall, 162 Vt. 66, 70 (1994).
§ 2.56 Suspicionless Stops: Roadblocks
n. 476:
See State v. Alexander, No. 92-049 (Vt. Dec. 3, 1992) (mem.) (appeal after remand in State v. Alexander, 157 Vt. 60 (1991)): a DUI roadblock passes constitutional muster under State v. Martin, 145 Vt. 562 (1985).
§ 2.61 Searches and Seizures of Communications - Informants
p. 2-66
In a pre-Blow case, the court did not commit plain error by failing to exclude unobjected-to tapes of a drug buy in the defendant's apartment. State v. Judkins, 161 Vt. 593, 594 (1993) (mem.).
n. 505:
See also State v. Hart, No. 93-101 (Vt. April 1, 1994) (mem.) (a telephone conversation between the defendant - from a pay telephone - and the complainant - at the police station - could be monitored and taped without a warrant); State v. Lang, No. 93-248 (Vt. Sept. 23, 1994) (mem.) (electronic monitoring inside the informant's home doesn't require a warrant).
§2.63 Motions for Return of Property (new section)
When property has been seized in an unlawful search V.R.Cr.P. 41(e) permits the "person aggrieved" to move for its return on the ground that he or she "is entitled to lawful possession of the property which was illegally seized[,]" a standard which rules out motions for the return of illegally seized contraband. Cf. 18 V.S.A. § 4242(d) ("All regulated drugs the possession of which is prohibited under this chapter are contraband and shall be automatically forfeited to the state and destroyed.") The "person aggrieved" need not be the defendant. Id., reporter's notes. If a formal charge has been filed the motion must be made in the court where the case is pending.
When seized property is handed over to federal officials the state court lacks jurisdiction to grant a subsequently filed Rule 41(e) motion. In State v. Terry, 159 Vt. 531 (1993) state police executing a search warrant seized money from the defendant and handed it over to the DEA. The federal court later ordered forfeiture, and the defendant's subsequent motion in state court for return of the property was denied for lack of jurisdiction. On appeal the Vermont Supreme Court held that the state courts would have had exclusive jurisdiction if the state had commenced a forfeiture proceeding, or if the defendant had filed a motion for return of the money (V.R.Cr.P. 41(e)), before commencement of the federal forfeiture proceedings, but neither of those things happened. "If property is not being held as evidence in a pending criminal case, and forfeiture proceedings have commenced, the proper forum to contest the seizure is in the forfeiture proceeding." See also State v. Capron, No. 91-323 (Vt. Jan. 15, 1993) (mem.)
§ 2.64 Forfeiture Proceedings (new section)
Vermont's forfeiture procedure, which applies only to drug offenses, is set out at 18 V.S.A. §§ 4241-4248. The list of forfeitable property is less draconian than the corresponding federal law, 21 U.S.C. § 881(a), and specifically exempts "real property which is occupied as the primary residence of a person involved in the violation and a member or members of that person's family." 18 V.S.A. § 4241(a)(5). See United States v. 14.5 Acres, 857 F. Supp. 22 (D. Vt. 1994). Property may be seized or (if it is already in the state's possession) secured on ex parte court order, upon a showing of probable cause. 18 V.S.A. § 4242.
The forfeiture petition must be filed within 14 days of the § 4242 seizure order, with service to all apparent owners and others with an interest in the property. 18 V.S.A. § 4243. The proceedings are civil and in rem in nature. 18 V.S.A. § 4244(c); State v. Terry, 159 Vt. 531, 533 (1993).
The United States Supreme Court has held that forfeitures under the federal statute do not constitute a second "punishment" for crime in violation of the double jeopardy clause. United States v. Ursery, 64 L.W. 4565 (1996). See § 14.07, infra.
CHAPTER 3
CONFESSIONS
§ 3.01 The Scope of the Right - Testimonial and Nontestimonial Evidence
n.8:
Admission of the defendant's refusal to take a DUI breath test does not violate the state constitutional privilege against self-incrimination. State v. Sawyer, No. 94-522 (Vt. Nov. 1, 1995) (mem.)
§ 3.02 Confessions, Admissions, Privileged Silence
n. 14:
Cf. State v. Nunez, 162 Vt. 615 (1994) (mem.), discussed in § 3.03, infra.
n. 15:
See also State v. Philippon, No. 94-116 (Vt. Aug. 31, 1995) (mem.) (prosecutor's argument on defendant's failure to tell police he wasn't the driver); State v. Wedge, No. 94-585 (Vt. Sep. 28, 1995) (mem.) (DUI processing form notation that defendant refused to respond to police questioning not admitted in violation of Doyle rule: defendant's challenge to policeman's recollection opened the door); State v. Gawrys, No. 93-231 (Vt. April 1, 1994) (mem.) (prosecutor's argument that the defendant failed to tell police an exculpatory fact which he testified to at trial wasn't objected to and wasn't plain error).
n. 18:
See also State v. Carter, No. 94-412 (Vt. Jan. 12, 1996) (defendant's pre-Miranda refusal to talk to police didn't violate fifth amendment).
p. 3-5, new paragraph after the last sentence:
When the target of a private interrogation asserts the right to silence, the assertion is admissible. In State v. Houle, 162 Vt. 41 (1994), the defendant, a hospital nurse, was questioned by a supervisor about an allegation of cruelty, and responded by asking, "Should I get a lawyer?" Treating the question as an assertion of the right to silence, the court held that it was properly admitted because the interrogator was not a state official and defendant had no constitutionally protected right, under either the fifth amendment or ch. I, art. 10, to remain silent. Id., at 44-45. Justice Morse dissented on this last point, arguing that the defendant had a constitutional right to refuse to incriminate herself regardless of the context. Id., at 49-50.
§ 3.03 The Voluntariness Standard
p. 3-7, after n. 34.5:
In State v. Bacon, No. 92-534 (Vt. Feb. 17, 1995) the court backed off from earlier decisions, holding that the rule against coercion does not prevent the police from employing "psychological tactics" to encourage a confession. Police advised the defendant in Bacon not to "take the fall" for his codefendant, falsely informed him that the codefendant had made a statement, and stressed the defendant's limited role.
p. 3-7, after n. 37:
Cf. State v. Nunez, 162 Vt. 615 (1994) (mem.): In a phone conversation with police defendant invoked his right to remain silent, but the officer told him that the right didn't apply outside the courtroom, whereupon he made damaging false exculpatory statements. The court holds these statements admissible, pointing out that defendant's phone call to the police was "entirely voluntary" and his statements weren't confessions.
§ 3.04 Involuntariness in the Absence of Official Coercion
n. 48:
In In re Robinson, 161 Vt. 550 (1994) the court again found it unnecessary to decide the state constitutional admissibility of involuntary confessions which are not the product of official coercion, holding that the confession at issue was voluntary in the totality of circumstances.
p. 3-9 and n. 51.
But see State v. Houle, 162 Vt. 41 (1994), discussed in § 3.02, supra (right against self-incrimination had no application to interrogation by hospital supervisor).
§ 3.05 Proof of Voluntariness
n. 61:
But see In re Robinson, 161 Vt. 550, 553-54 (1994) (superior court in a post-conviction relief proceeding should review voluntariness de novo).
§ 3.10 The Warnings
p. 3-12, before last paragraph:
See State v. Bacon, No. 92-534, slip op. 17 (Vt. Feb. 17, 1995) (police did not impermissibly undermine the warnings' impact by calling them "technicalities").
§ 3.11 Custody
n. 82:
See also Stansbury v. California, 114 S.Ct. 1526 (1994): Miranda custody is determined by an objective test - restraint on freedom of movement of the degree associated with formal arrest. Subjective intentions on the part of the police (e.g., to prevent the suspect from leaving) are relevant only to the extent they are communicated to the person being questioned.
p. 3-14, under In the Home:
See State v. Allocco, 162 Vt. 59 (1994) (interrogation at the defendant's place of business wasn't custodial)
n. 90:
See also State v. Ballard, No. 90-135 (Vt. Jan. 27, 1993) (mem.), and State v. Thompson, No. 93-405 (Vt. Sept. 23, 1994) (mem.), both holding that roadside encounters are ordinarily noncustodial.
n. 91:
In In re S.T., 161 Vt. 639 (1994) (mem.) a suspected delinquent was questioned in a police cruiser and admitted drinking alcohol. He moved to suppress, arguing a Miranda violation. The trial judge denied suppression saying only that it "was not custodial interrogation, it was an investigative detention...." The Vermont Supreme Court reversed on the ground that the findings were insufficient; the judge has to make findings about the underlying facts.
§ 3.12 Interrogation
n. 98:
See State v. Fitzgerald, No. 94-650, slip op. 2-5 (Vt. July 5, 1996): After being taken into custody the defendant asked the policeman where his friend Ricky was. The officer responded (approximately), "He's in Texas, why?" Defendant replied: "That's good, he had nothing to do with it." Citing Rhode Island v. Innis, the Vermont Supreme Court held that the implied admission was not the product of interrogation.
n. 99:
See State v. Fitzgerald, No. 94-650 (Vt. July 5, 1996), n. 98, supra.
§ 3.14 The Requirement of a Writing
n. 113:
In State v. Pellerin, 161 Vt. 229 (1993) the court suppressed a confession on the ground that the suspect did not waive his rights to counsel and against self-incrimination in writing, as required by the public defender statute. Compare State v. Fuller, No. 94-441 (Vt. April 14, 1995) (written waiver requirement does not apply to waivers by DUI suspects of right to consult counsel about breath test request).
§ 3.15 Voluntary, Knowing, and Intelligent
p. 3-19, after last paragraph:
The court considered claims that the defendant lacked mental capacity to make a valid Miranda waiver in State v. Ives, 162 Vt. 131, 134-142 (1994), and State v. Cleary, 161 Vt. 403, 406-414 (1994), both cases rejecting the claims on their merits. In Cleary the court acknowledged that "because persons with diminished mental capacity hold a protected status in our society, courts must determine that 'the administering of constitutional rights was more than a mere perfunctory procedure.'" Id., at 413, quoting State v. Flower, 539 A.2d 1284, 1287 (N.J. Super. Ct. 1987). In a strong dissent in Cleary Justice Johnson argued for a "context-specific inquiry into the defendant's cognitive limitations and how these limitations affect the defendant's understanding of the language used to obtain a waiver of rights and the abstract concepts underlying both the rights and the waiver of those rights." Id., at 424. See also State v. Ives, 162 Vt. at 144-49 (1994) (Johnson, J., dissenting). The Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq., which requires states to make reasonable accommodations to people with disabilities, may also require something more than a perfunctory recitation of Miranda warnings to mentally handicapped suspects.
§ 3.17 Assertion of Rights
n. 137:
See State v. Clark, 152 Vt. 304, 309 (1989) (no plain error in trooper's failure to clarify defendant's ambiguous response to warnings - "Do you want a lawyer, Yes or No?" "Yes, but not now. I'll get [a] personal attorney.")
3-20
In Davis v. United States, 114 S.Ct. 2350 (1994), the United States Supreme Court held that the police are under no duty to clarify whether or not the suspect has asserted the right to counsel. The rule of Edwards v. Arizona, 451 U.S. 477 (1981), which requires that questioning cease when the defendant requests counsel, is triggered only by an "unambiguous" request. Police are under no duty to clarify an ambiguous statement which might indicate a desire for counsel (in this case "May be I should talk to a lawyer.") The Vermont court followed Davis (but only as a matter of federal law) in State v. Thompson, No. 94-247 (Vt. Jan. 27, 1995) (mem.) (defendant when asked if he wanted to talk to a lawyer said, "I'll talk to one later.") In State v. Bacon, No. 92-534, slip op. 17-19 (Vt. Feb. 17, 1995) the court held that the Davis rule applies also to ambiguous assertions of the right to remain silent.
§ 3.20 The Booking Exception
n. 152:
See also State v. Lamell, No. 94-257 (Vt. Nov. 10, 1994) (mem.): When a defendant has consented to take a breath test during DUI processing, asking him if he has burped, belched or vomited within the past fifteen minutes is not subject to suppression as a Miranda violation since this is a routine processing question not intended to elicit an incriminating response. The court declined to decide whether the Vermont constitution would require a different result.
Coerced and otherwise involuntary statements obtained at the booking stage may be excludable on due process grounds. Cf. In re Robinson, 161 Vt. 550 (1994) (defendant's statement during booking not involuntary).
§ 3.21 Statements Obtained in Violation of the Sixth Amendment
p. 3-23
See State v. Bean, No. 94-138 (Vt. Mar. 31, 1995): The defendant was arraigned on two days on two related charges, declining the public defender but refusing to waive counsel explicitly. At both hearings he made damaging admissions. The court held the statements were suppressible under V.R.Cr.P. 5(e), which says that after preliminaries have been taken care of "[n]o further proceedings shall be had until counsel has been assigned...." Violation of the rule justified suppression of the ensuing statements.
§ 3.29 Statutory Violations
p. 3-31
See State v. Bean, No. 94-138 (Vt. Mar. 31, 1995), discussed in § 3.21, supra (suppression for V.R.Cr.P. 5(e) violation).
n. 215:
See also State v. Forcier, 162 Vt. 71 (1994), discussed in § 2.30, suppressing a confession obtained after an arrest for a DUI offense not committed in the officer's presence.
CHAPTER 4
IDENTIFICATION PROCEDURES
§ 4.02 "Critical Stage" Identifications
p. 4-5, after "...the court has not found a right to counsel in precharge proceedings."
In State v. Parizo, No. 91-264 (Vt. Dec, 23, 1994), the defendant, incarcerated on unrelated charges, was served with a Rule 41.1 order to appear at a lineup and tried unsuccessfully to get an attorney to represent him. The court held he had no right to counsel at a pre-charge lineup under either the Vermont constitution or the public defender statute.
§ 4.03 Identifications Procedures Not Governed by the Sixth Amendment - Precharge Corporeal Identifications
p. 4-7, after n. 37:
In State v. Parizo, No. 91-264 (Vt. Dec. 23, 1994), a pre-charge V.R.Cr.P. 41.1 lineup order didn't advise the defendant of his right to seek a "reasonable modification" of the order (e.g., a postponement) and in fact this part of the order was crossed out. The deletion did not require suppression, however, because the defendant "failed to present a basis for postponement had he sought one."
§ 4.06 Photographic Identifications
p. 4-8, after "A single photograph, like a one-on-one showup, is obviously suggestive...."
See State v. Kasper, 137 Vt. 184, 192 (1979), quoting Simmons v. United States, 390 U.S. 377, 383 (1968) (risk of misidentification increased "if the police display to the witness only the picture of a single individual who generally resembles the person he saw...."). In State v. Donley, No. 92-567 (Vt. Nov. 17, 1993) (mem.) the court approved the use of a single-photo identification in a probation revocation proceeding, so long as "surrounding circumstances suggest its reliability...."
§ 4.12 Jury Instructions
In State v. Schellhardt, No. 92-156 (Vt. Oct. 22, 1993) (mem.) child witnesses were unable to identify the defendant in court but had previously identified a picture of him. The jury should be given "guidelines for considering the reliability of the photo identification" but the judge's instructions in this case were good enough, or at least not plain error.
CHAPTER 5
INITIATION OF THE CHARGE
§ 5.02 Inquests
n. 14:
The decision whether to hold an inquest is discretionary with the judge. In re D.L., No. 94-218, slip op. 12-13 (Vt. Sept. 22, 1995).
p. 5-5, before first paragraph:
In In re D.L., No. 94-218 (Vt. Sept. 22, 1995) the Vermont court held that the inquest procedure doesn't violate the state constitutional separation of powers clause, ch. II, § 5, by requiring the judiciary to perform executive functions.
§ 5.05 Time, Place, and Name
n. 39:
See also State v. Gomes, 162 Vt. 319 (1994) (information which alleged sexual abuse between May 1985 and September 1986 not too vague to allow a defense).
§ 5.06 Pleading Statutory and Implicit Elements
n. 43:
See State v. Olsen, No. 95-119 (Vt. May 10, 1996) (murder information charging "malice" sufficiently put defendant on notice that he could be convicted for killing with "wanton disregard," a subspecies of malice).
n. 45:
But see State v. Bartley-Cruz, No. 93-267 (Vt. June 1, 1994) (mem.): A welfare fraud information was not jurisdictionally void although it omitted a statutory element (receiving aid "under a state or federally-funded assistance program"). See also State v. Cross, No. 93-160 (Vt. June 1, 1994), another welfare fraud case rejecting a similar claim.
n. 46:
Compare State v. Davis, No. 95-090 (Vt. June 21, 1996) (despite clause in kidnapping information stating penalty as 30 years defendant was sufficiently on notice that prosecution sought life imprisonment).
§ 5.07 Negating Exceptions
n. 70:
See also State v. Jarry, 161 Vt. 629 (1994) (mem.) (the information in a child sexual assault case failed to allege that the defendant and complainant were not married to each other, but the omission was not jurisdictional because non-marriage is a statutory exception, not an essential element of liability).
§ 5.11 Duplicity
n. 88:
As a matter of preservation the defense is bound to point out the risk of a non-unanimous verdict. In State v. Tinker, No. 93-055 (Vt. Sept. 29, 1994) (mem.) the defendant was charged with careless and negligent operation, for speeding and unsafe passing, and the judge instructed the jury that he could be convicted if he did one or the other, without requiring it to be unanimous about the basis for its decision. Defense counsel objected on the ground that the information charged the two alleged negligent acts in the conjunctive, and that the jury should have to find both, but her failure to say anything about the defendant's right to a unanimous verdict constituted a waiver of that claim.
p. 5-14, after n. 91:
Compare State v. Winner, No. 93-507 (Vt. June 24, 1994) (mem.): A charge that the defendant didn't stop when signalled by an officer wearing identifying insignia and displaying a flashing blue light and sounding its siren - and jury instructions which were also worded in the conjunctive - gave the defendant more than he was entitled to. The statute only requires insignia or lights and sirens.
n. 93:
See also State v. Martel, No. 94-225 (Vt. Dec. 22, 1995) (introduction of evidence of three separate sexual acts in a sexual assault prosecution was not prejudicial since the trial court instructed the jurors they must all agree as to which of the three acts constituted the offense).
§ 5.12 Multiplicity
p. 5-14, after n. 97:
The number of permissible counts also depends on the legislature's intent regarding the appropriate "unit of prosecution." See § 14.06, pp. 14-7 to 14-8. In State v. Perillo, 162 Vt. 566 (1994) the information charged that the defendant committed two counts of lewd and lascivious conduct, by fondling the complainant's vulva, and by rubbing her chest. Both touchings occurred during a single episode of fondling and the court held that only one crime was committed: "We do not think the legislature intended to increase the potential sentence for these crimes exponentially depending on the number of touches involved in a single episode of sexual abuse." Similarly, a number of punches in a single fight would be only one assault. By contrast, in State v. Mott, No. 95-248, and State v. Hall, No. 95-249 (Vt. March 7, 1993) (mem.) the court held that defendants who were released on condition that they report to the police station for alcosensor testing could be charged with a separate count of criminal contempt for each missed appointment.
§ 5.13 Amendments
p. 5-15, after n. 104:
In a simple assault case the Vermont court held that it was not error to let the state amend its information at the close of the evidence to allow the jury to find that the defendant acted "recklessly" as an alternative to "knowingly and purposely" because (a) "recklessly" had been alleged in the information before trial and then deleted by the state with the proviso that the state might seek to reinstate this allegation depending on the trial evidence, and (b) since "recklessly" is a lesser included mental state of "purposely and knowingly," the defendant had constructive notice of the lesser element under V.R.Cr.P. 31(c). State v. Roberts, No. 95-064 (Vt. Nov. 16, 1995) (mem.).
§ 5.17 The Rule 5 Hearing
n. 134:
McLaughlin's presumptive 48-hour limit to post-arrest pre-arraignment detention is retroactive to all cases not final when McLaughlin was decided. Powell v. Nevada, 114 S.Ct. 1280 (1994).
§ 5.20 Assignment of Counsel
p. 5-21, after n. 149
See State v. Bean, No. 94-138 (Vt. Mar. 31, 1995): The defendant was arraigned on two days on two related charges. Both times he declined the public defender but refused to explicitly waive counsel. At both hearings he made damaging admissions, and on one occasion he offered to plead guilty - material which the prosecution wanted to use against him at trial. The trial judge found that the defendant had not waived his right to counsel and suppressed the statements, and the Vermont Supreme Court affirmed. Defendant's conduct was "doubtful" and did not amount to a constitutionally adequate waiver of counsel; his statements were suppressible under V.R.Cr.P. 5(e).
CHAPTER 6
THE RIGHTS TO COUNSEL
AND SELF-REPRESENTATION
§ 6.01 Sources of the Right - The Constitutional Right
p. 6-3, in connection with first full paragraph:
In State v. DeRosa, 161 Vt. 78 (1993), the Vermont court held that defendants sentenced to a suspended term and probation are entitled to counsel under the public defender statute, and in dicta suggested that the same result might be required under the sixth amendment. See § 6.02.
p. 6-3, after "...withdraw his plea."
A 1995 amendment to the public defender statute frees the judge to go back on an earlier commitment not to impose a prison sentence "at any time prior to the commencement of trial" so long as there is a "a change of circumstances...." 13 V.S.A. § 5206(b). The section, which ratifies and extends the decision in State v. Duval, 156 Vt. 122 (1991), will run into constitutional difficulties if the defendant is made to go through critical stages of the proceeding before appointment.
§ 6.02 The Public Defender Statute
p. 6-4, after n. 20:
Enumerated minor misdemeanors are presumptively not "serious crimes" unless the judge "determines and states on the record that a sentence of imprisonment or a fine over $1,000 may be imposed on conviction[.]" 13 V.S.A. § 5201(5). Before making any decision under these sections the judge must "inquire of the prosecutor whether a term of imprisonment or a fine over $1,000.00 will be sought[,]" 13 V.S.A. § 5206(a), but the final decision remains with the judge.
"Imprisonment" includes suspended imprisonment. In State v. DeRosa, 161 Vt. 78 (1993) the court held that the public defender act prohibits imposition of a suspended prison sentence and probation after denial of assistance of counsel. The decision is fully retroactive and applies to recidivist prosecutions based on uncounselled predicate convictions. See State v. Brown, No. 94-277 (Vt. March 22, 1996); § 6.04, infra.
§ 6.03 Stages and Proceedings at Which the Right to Counsel Attaches - Stages of the Criminal Proceeding
n. 23:
See State v. Bean, No. 94-138 (Vt. Mar. 31, 1995), discussed in § 5.20.
n. 26:
In State v. Parizo, No. 91-264 (Vt. Dec. 23, 1994) the court held that there is no right to counsel under the Vermont constitution, the public defender statues, or V.R.Cr.P. 16.1(a)(2) at a pre-charge lineup.
n. 31:
The right to consult counsel in connection with DUI processing includes the right to private consultation. State v. West, 151 Vt. 140, 143-44 (1989). Compare State v. LeFrancois, No. 93-205 (Vt. Feb. 23, 1994) (mem.) (reversing a DUI civil suspension on testimony that lawyer-client communications were inhibited by presence of police) with State v. Mable, No. 93-282 (Vt. Feb. 23, 1994) (mem.) (rejecting a right-to-a-private-phonecall claim with no showing of a request for greater privacy or how communications were inhibited).
n. 35, erratum:
Citation should read: State v. Rice, 148 Vt. 313 (1987).
p. 6-6, after n. 40:
The statutory right to post-conviction counsel includes the right to representation in a habeas corpus proceeding challenging prison disciplinary proceedings. Fletcher v. Gorczyk, 159 Vt. 631 (1992).
§ 6.04 Prior Proceedings in Recidivist Cases
n. 42:
The United States Constitution gives no right to challenge predicate convictions at a recidivist sentencing proceeding except on right-to-counsel grounds. Custis v. United States, 114 S.Ct. 1732 (1994). See § 37.13, infra.
pp. 6-6 to 6-7, replacing text from "The same holds true..." to end of paragraph:
Overruling Baldasar v. Illinois, 446 U.S. 222 (1979) in Nichols v. United States, 114 S.Ct. 1921 (1994) the court held that a valid uncounseled prior conviction can be used to enhance the sentence for a subsequent offense, under the sentencing guidelines. Following Nichols, the Vermont Supreme Court held in State v Porter, No. 94-215 (Vt. Jan. 5, 1996) that an uncounseled, fine-only DUI conviction which is constitutionally valid under Scott v. Illinois, 440 U.S. 367 (1967), may be used for sentence-enhancement purposes under a recidivism statute that imposes a lengthier prison sentence and felony liability for subsequent convictions. See also State v. Reynolds, No. 94-198 (Vt. Jan. 8, 1996) (mem.), and State v. Moffitt, No. 94-242 (Vt. Jan. 8, 1996) (mem.) rejecting challenges to recidivist sentencing under statutes punishing driving with a suspended license.
The impact of Nichols and Brown has been somewhat blunted by a 1995 amendment to the public defender statute, which provides that certain uncounseled misdemeanor convictions may not be used as predicates for recidivist punishment. 13 V.S.A. § 5206(c). The exempted misdemeanors include prosecutions for bad check, petit larceny, first offense possession of marijuana, trespass, and unlawful mischief. 13 V.S.A. § 5201(5)(A)-(L). The statute also grants a right to assigned counsel in cases where "a needy person ... is charged with an offense which provides for a felony penalty at the next subsequent conviction for the same offense...." The main impact of this provision is to require assignment of counsel in second-offense drunk driving prosecutions, inasmuch as the third DUI offense is a felony.
An uncounseled prior conviction which resulted in a suspended sentence can not be used as a predicate for recidivist treatment, absent a showing that counsel was validly waived. The court held that such convictions violate State v. DeRosa, 161 Vt. 78 (1993) (see § 6.02, supra). State v. Brown, No. 94-277 (Vt. March 22, 1996).
n. 44:
See also State v. Brown, No. 94-277 (Vt. March 22, 1996) (defendants failed to carry burden of showing that prior convictions were DeRosa violations).
§ 6.06a Civil Contempt (new section)
In Choiniere v. Brooks, No. 94-653 (Vt. Mar. 24, 1995) (mem.) the court held that a civil litigant facing the possibility of jail for contempt is entitled to assignment of counsel. It remains to be decided whether the family court can assign counsel under the public defender act to these cases (the defender general's office is contesting such assignments).
§ 6.08 Rights to Defense "Services and Facilities"
p. 6-10, after n. 61:
Prior court approval is necessary for any "item" (e.g., an expert witness fee) in excess of $1,500. 13 V.S.A. §5231(2).
n. 63:
But see State v. Bacon, No. 92-534 (Vt. Feb. 17, 1995), discussed in § 6.12, infra (failure to provide funds for DNA expert held non-prejudicial).
p. 6-11, after "...give him that right."
Cf. State v. Sage, 161 Vt. 633 (1994), denying motion for summary reversal when state lost notes of one day of three-day trial, and remanding for fact-finding.
§ 6.09
p. 6-11, after n. 73:
The clerk can insist on proof of eligibility in the form of pay stubs, unemployment checks, etc. 13 V.S.A. § 5236(b).
§ 6.10 Eligibility
p. 6-11, after n. 74:
In determining financial eligibility the court considers the defendant's income, property, debts, and dependents. 13 V.S.A. § 5236(b).
n. 75:
The new income guidelines are as follows:
Size of Family Unit Poverty Guidelines
1 $ 7,470
2 10,030
3 12,590
4 15,150
5 17,710
6 20,270
7 22,830
8 25,390
A.O. 4 App. B. "For family units with more than 8 members, add $2,940 for each additional member." Id.<P>
n. 76:
See 13 V.S.A. § 5238(b), for the amount of copayment (expressed as a percentage of the average cost of the case as determined by the defender general) for defendants whose income falls between 125% and 200% of the poverty guidelines. Income for copayment purposes includes the income of the person and "cohabiting family members." 13 V.S.A. § 5238(b) (1996). Income of household members is not, however, a factor in the initial determination of eligibility. State v. Bailey, No. 93-300 (Vt. June 27, 1996) (mem.).
The subject of a copayment order can petition the court for remission, and copayment orders are appealable to a single justice of the supreme court. 13 V.S.A. § 5238(f),(h).
n. 80:
The right of appeal the single justice is also stated in 13 V.S.A. § 5236(c). It is limited, however, to questions of financial eligibility and copayment amounts, and defendants wishing to challenge other sorts of non-assignment decisions must proceed by interlocutory appeal. In re Curfman, No. 95-516 (Vt. Dec. 13, 1995) (mem.)
§ 6.11 Public Defenders, Assigned Counsel, "Ad Hoc" Counsel
following n. 83:
Public defenders, as state employees, are entitled to the same protection from negligence suits as other state employees. Bradshaw v. Joseph, No. 94-667 (Vt. Aug. 25, 1995).
§ 6.12 Payment of Assigned Counsel
p. 6-13, first sentence:
In 1993 the hourly rate for ad hoc counsel was raised to $40.00, with a maximum of $1,000 for misdemeanors, $5,000 for major felonies, $2,000 for minor felonies, and $25,000 for life imprisonment cases. A.O. 4, § 6; Acts of 1995, No. 63, § 60.
p. 6-14, after last sentence:
In State v. Bacon, No. 92-534 (Vt. Feb. 17, 1995) the Vermont court rejected a claim that the state's failure to pay defense counsel in a timely manner for expenses and services created a conflict of interest between attorney and client by compromising the attorney's loyalty. A dissenting opinion warned, "We ignore reality if we conclude that the existence of ethical obligations will by themselves ensure effective representation in the face of compelling and unavoidable economic pressures to the contrary." Money issues in Bacon also prevented defense counsel from calling a DNA expert, but the court held that this failure was not prejudicial in light of the other evidence of guilt.
§ 6.13 Retained Counsel
n. 95:
Compare State v. George, 161 Vt. 615 (1994) (mem.): The defendant was properly held to have refused a breath test when he insisted on speaking to a particular attorney whose line was busy. His right to consult counsel was satisfied when the police put him on the line with the public defender after making reasonable efforts to contact the lawyer whom the defendant wanted.
§ 6.15 Requirements of a Valid Waiver of Counsel: Constitutional Waivers
nn. 103 and 109
See State v. Pollard, No. 92-592, slip op. 8-11 (Vt. Jan. 20 1995), holding that a colloquy between judge and defendant was inadequate to demonstrate a competent waiver. Compare State v. Cleary, 161 Vt. 403, 406-14 (1994) (competency as bearing on Miranda waivers) and State v. Ives, 162 Vt. 131, 134-42 (1994) (same), discussed in § 3.15, supra.
n. 107:
See also State v. Bean, No. 94-138, slip op. 3-4 (Vt. Mar. 31, 1995) (defendant's conduct at Rule 5 hearing did not unequivocally waive right to counsel).
n. 115:
The Vermont Supreme Court sees competency as an ingredient of a valid waiver: "Waiver of counsel requires a two-part inquiry: first, whether defendant is mentally competent to waive counsel, and second, whether defendant makes such a waiver knowingly, with full awareness of the consequences of the waiver. State v. Pollard, No. 92-592, slip op. 9 (Vt. Jan. 20 1995), citing Godinez v. Moran, 113 S.Ct. 2680, 2687 and n.12 (1993).
After n. 115
In State v. Pollard, No. 92-592, slip op. 8-11 (Vt. Jan. 20 1995), the Vermont court held that a murder defendant who showed signs of mental disturbance did not competently waive counsel at his sentencing hearing.
§ 6.16 Waivers of Statutory Counsel
n. 119:
But see State v. Bean, No. 94-138, slip op. 3-4 (Vt. Mar. 31, 1995), finding no waiver of counsel when defendant refused representation by the public defender and failed to retain counsel, while expressing ambivalence about self-representation.
n. 120:
See also State v. Bradley, No. 94-582 (Vt. Nov. 3, 1995) (defendant waived right to self-representation by acquiescing in counsel's assistance).
n. 121:
The written waiver requirement applies to counsel assigned in connection with custodial interrogation. State v. Pellerin, 161 Vt. 229 (1993); § 3.14, supra. By contrast, in State v. Fuller, No. 94-441 (Vt. April 14, 1995) the court held that DUI suspects can orally waive their right to consult counsel in connection with a breath test request.
§ 6.17 The Right to Rescind a Counsel Waiver
n. 127:
See State v. Wool, 162 Vt. 342, 351 (1994), discussed in § 6.19, infra.
The special rules which apply to waivers of counsel do not apply to waivers of the right of self-representation, and a defendant who first opts for self-representation but then acquiesces in the representation by the public defender has no complaint so long as "it reasonably appears that [the defendant] has abandoned his initial request to represent himself." State v. Bradley, No. 94-582 (Vt. Nov. 3, 1995).
§ 6.18 The Risks and Rights of Self-Representation
p. 6-19, after "Judges are often stricter with the pro se litigant ... and less generous in the exercise of discretion."
See State v. Sage, No. 92-204 (Vt. May 20, 1995) (mem.): After trial, at a time when trial counsel had withdrawn from the case and appellate counsel was yet to be appointed, the state lost the tape of one day of a three day trial. Defendant claimed that the lack of a transcript denied him the substance of his right to appeal, and to effective assistance of counsel on appeal. The Vermont Supreme Court held that the defendant himself was at fault for the loss, by not ordering the transcript within the time limits set by the rules, and that "any prejudice [from the loss of the transcript] was therefore self-inflicted." See also State v. Powell, No. 94-370 (Vt. June 9, 1995) (mem.): A pro se defendant was accused by a deputy sheriff of suggesting to a witness how to testify at trial. The trial court questioned the defendant and his wife concerning their conversation and held the wife in contempt, placing her in custody when she refused to answer. Without elaboration the supreme court holds that the procedure impermissibly tainted the proceedings.
§ 6.19 Standby Counsel
n. 131:
See State v. Wool, 162 Vt. 342, 351 (1994): In the middle of trial the defendant, who was representing himself with the aid of standby counsel, asked that counsel be assigned, saying he was overwhelmed by the task of self-representation. Rejecting a claim that standby counsel should have been allowed to take over, the supreme court upholds the denial of the request as a proper exercise of discretion. Defendant "offered no evidence that standby counsel...could take over without considerable delay."
§ 6.20 Facilities of Self-Representation
See State v. Wool, 162 Vt. 342, 346-51 (1994): A pro se defendant has a right under the public defender act to "necessary defense services" including investigators and experts, but in this case the defendant didn't show that an investigator or expert was "necessary"; "bare assertions of need" aren't enough.
§6.22 The Roles of Client and Counsel
n. 150:
See also State v. Bickford, No. 95-048 (Vt. March 7, 1995) (mem.) (although the decision on whether to testify is the defendant's the right must be asserted before verdict.)
§ 6.23 Ineffective Assistance of Counsel - The Standard of Competency
p. 6-25, after n. 172:
A merely statutory right to counsel, by contrast, does not invariably imply a right to effective assistance. See State v. Clark, No. 95-208 (Vt. Dec. 22, 1995) (mem.) (statutory right to counsel in connection with DUI breath test advice, and at civil suspension hearing, doesn't imply right to effective assistance of counsel).
n. 182.5:
Also rejecting claims of ineffectiveness, in part or in whole because of a failure to show lack of reasonable competence, see State v. Cohen, No. 92-268 (Vt. Jan. 21, 1994) (failure to challenge aerial surveillance); In re Blackburn, No. 93-449 (Vt. Dec. 19, 1994) (mem.) (failure to object to inadmissible comment on credibility upheld as reasonable tactical decision); In re Percy, No. 95-232 (Vt. Feb. 7, 1996) (mem.) (failure to object to jury instruction which caselaw seemed to authorize); State v. Hughes, No. 94-606 (Vt. Oct. 3, 1995) (mem.) (failure to pursue claim of "prior false allegation" in sexual assault case); In re Parizo, No. 94-577 (Vt. Sep. 28, 1995) (mem.) (failure to get school attendance records in case where complainant claimed crime occurred during school hours); In re Vincent, No. 94-192 (Vt. Sep. 28, 1995) (mem.) (failure to call alibi witnesses); In re Goldsmith, No. 95-078 (Vt. March 7, 1996) (mem.) (failure to advise client his testimony could be used in later probation revocation hearing); In re Cardinal, 162 Vt. 418, 422-23 (1994) (lawyer who told defendant not to come to bench during individual voir dire of jurors made reasonable strategic choice).
§ 6.24 The Requirement of Prejudice
n. 185:
Also rejecting claims of ineffectiveness, in part or in whole for failure to show prejudice, see State v. Cohen, No. 92-268 (Vt. Jan. 21, 1994) (failure to object to inflammatory closing argument, investigate alibi, etc.); In re Savard, No. 93-164 (Vt. June 1, 1994) (mem.) (failure to object to hearsay); In re Percy, No. 95-232 (Vt. Feb. 7, 1996) (mem.) (failure to object to jury instruction on element of crime); In re Parizo, No. 94-577 (Vt. Sep. 28, 1995) (mem.) (failure to get school attendance records in case where complainant claimed crime occurred during school hours).
§ 6.26 Conflict of Interest
n. 198:
Cf. State v. Bacon, No. 92-534 (Vt. Feb. 17, 1995), discussed in § 6.12, supra (failure of state to pay assigned counsel did not create conflict of interest between lawyer and client).
§ 6.27 How Raised
n. 204:
See State v. Hatch, No. 94-209 (Vt. April 25, 1995) (mem.) (claim that the trial lawyer didn't provide effective assistance couldn't be raised on direct appeal). But see State v. Savery, No. 93-520 (Vt. Feb. 7, 1996) (mem.) (although ineffective assistance claims must usually be brought by PCR, the claim in this case could be rejected on the appellate record).
p. 6-29, after n. 205:
Both aspects of the Strickland test may be the subject of expert testimony at the PCR hearing. The Vermont Supreme Court ruled out one source of such evidence, however - the trial judge - in In re Wilkinson, No. 95-156 (Vt. April 12, 1996), holding that a judge may not be called to testify to the fairness of her own trial.
CHAPTER 7
BAIL
§ 7.01 The Right to Bail
p. 7-2, replacing text from end of first sentence to n. 3:
Until its amendment in 1994 chapter II, § 40 of the Vermont Constitution granted a near-absolute right to bail, with the exception of life-imprisonment cases. The amendment carved out a second major exception, for people charged with violent felonies, and third for defendants awaiting sentence. The section now reads as follows:
Excessive bail shall not be exacted for bailable offenses. All persons shall be bailable by sufficient sureties, except as follows:
(1) A person accused of an offense punishable by death or life imprisonment may be held without bail when the evidence of guilt is great.
(2) A person accused of a felony, an element of which involves an act of violence against another person, may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence. A person held without bail prior to trial under this paragraph shall be entitled to review de novo by a single justice of the Supreme Court forthwith.
(3) A person awaiting sentence, or sentenced pending appeal, may be held without bail for any offense.
A person held without bail prior to trial shall be entitled to review of that determination by a panel of three Supreme Court Justices within seven days after bail is denied.
Except in the case of an offense punishable by death or life imprisonment, if a person is held without bail prior to trial, the trial of the person shall be commenced not more than 60 days after bail is denied. If the trial is not commenced within 60 days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set bail for the person.
In cases which do not fall within one of these exceptions § 40 bars "preventive detention" -- that is, an order to hold without bail on the ground that the defendant's release would pose a danger to the public.
p. 7-3, replacing text from end of first sentence of second paragraph to n. 8:
Except in life imprisonment cases when the evidence of guilt is "great" (see § 7.09), and qualifying cases of violent felonies (§ 7.09a), the defendant "shall at his or her appearance before a judicial officer be ordered released pending trial" on monetary and/or non-monetary conditions.
p. 7-3, new text after n. 9:
The same is true of violent felony cases, where the requisites for preventive detention are not found. 13 V.S.A. §§ 7553a (power to hold without bail); 7554(a) (normal rules apply to any person charged with offense "other than a person held without bail under section 7553 or 7553a of this title....")
§ 7.03 Appearance Conditions
p. 7-4, after n. 18:
According to one single justice opinion, the bailing court can properly consider the source of the bail in fixing the amount. State v. Wolven, No. 94-089 (Vt. April. 1, 1994) (Johnson, J.).
§ 7.05 The Bail Form Conditions
n. 27:
See also State v. Kulakov, Nos. 92-660 & 93-412 (mem.)
(condition requiring the defendant to permit Burlington Police Department "to search and seize any weapons in the defendant's residence" stricken as overbroad).
n. 28:
See also State v. Teeter, No. 94-350 (Vt. July 14, 1994), affirming an order requiring supervised visits between defendant and his child, notwithstanding that it conflicted with a previous family court order.
§ 7.09 Bail in Special Proceedings - Life Imprisonment Cases
p. 7-9, after n. 46
See State v. Knox, No. 94-374 (Vt. Aug. 19, 1994): Kidnapping is defined as a life imprisonment offense, but it is an "affirmative defense" reducing the maximum to 30 years that the victim was released unharmed. There was no question in this case that the complainant was voluntarily released without any injury, but the trial judge treated it as a life-imprisonment offense for bail purposes because the defendant had the burden of proof. The supreme court reversed in a single justice opinion, remanding with directions to the trial judge to "consider whether life imprisonment is a realistic punishment."
n. 51:
See also State v. Blackmer, 160 Vt. 451, 454-55 (1993).
n. 59.5:
The amended constitutional provision tracks Salerno, requiring "clear and convincing evidence[] that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence." Vermont Constitution, ch. II, § 40(2).
p. 7-10, after last sentence:
The question came up State v. Blackmer, 160 Vt. 451 (1993), resulting in a sharply divided court, lengthy opinions, and no clear constitutional rule. The defendant was charged with aggravated sexual assault, a life imprisonment offense, at a time when other charges were also pending against him and he had violated a conditions-of-release order in these other the cases. The majority began by framing the issue narrowly, as whether a judge in a life imprisonment case "may deny bail because of a substantial and very recent record of violations of important conditions of release." 160 Vt. at 455-56. It went on to conclude, however, that as a general matter when there is no state constitutional right to bail "the norm is incarceration and not release...." Because of defendant's history of bail violations the court saw no reason to depart from the norm in this case.
The majority rejected a number of due process arguments based on the federal preventive detention decision, United States v. Salerno, 481 U.S. 739 (1977), but in an equivocal fashion. It read Salerno narrowly: the various safeguards which the United States Supreme Court held to be constitutionally sufficient were not all constitutionally necessary. In any case, the no-bail order here wasn't really "preventive detention" because the defendant was detained (in part) on the basis of the earlier conditions of release violations. If Salerno required, as a matter of substantive due process, that detention be based on a danger to the public or risk of flight, the trial court tacitly "presumed" these facts, and implicitly ruled that no lesser restrictions would do. The majority acknowledged that Salerno's procedural due process protections, including proof of non-bailability by clear and convincing evidence, were probably constitutional requirements, but held that the trial court's unobjected-to failure to specify the standard was not plain error. See also State v. Cochran, No. 93-582 (Vt. Dec. 20, 1993) (making incarceration the "norm" for individuals charged with offenses punishable by life imprisonment does not violate ch. II, § 40).
The federal district court rejected Blackmer's habeas corpus petition, finding no constitutional error in the detention order. Blackmer v. Gorczyk, 5:93-CV-238 (D. Vt. Nov. 17, 1993), adopting magistrate's report and recommendation.
§ 7.09a "Violent Felonies" (new section)
If the status of Salerno's dangerousness standard remains unclear in life imprisonment cases, the 1994 constitutional amendment expressly adopts it for "violent felonies." A felony may qualify as "violent" under § 40(2) if it involves violence in the broad sense of "abusive or unjust use of power." State v. Madison, No. 95-046, slip op. 5 (Vt. March 22, 1995) (Morse, J.). It includes a non-forcible sexual assault, id., and a charge of obstruction of justice involving a threat to "blow up" a witness. State v. Thompson, No. 95-273 (Vt. June 23, 1995) (Johnson, J.).
In qualifying cases the court must make two findings: (1) that "the evidence of guilt is great[,]" Vermont Constitution, ch. II, § 40(2), which is also a required finding for denial of bail in life imprisonment cases (§ 7.09) and is judged by the same standard as life imprisonment cases, State v. Madison, No. 95-046, slip op. 3-4 (Vt. March 22, 1995) (Morse, J.), and (2) "based on clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence." Id. The implementing statute, 13 V.S.A. § 7553a, repeats these two limitations.
A change in circumstances can undermine an initial finding of dangerousness. See State v. Hart, No. 95-631 (Vt. Dec. 22, 1995) (mem.) (affirming a hold-without-bail order on the ground that the defendant posed a threat to the complainant, but ordering a remand because the complainant was planning to leave the state, after which the court saw no reason for continued detention); State v. Turso, No. 95-659 (Vt. Jan. 17, 1996) (Dooley, J.) (vacating hold-without-bail order, on state's failure to show more than past violence and a single non-violent conditions of release violation).
Proof that "the evidence of guilt is great" in life imprisonment cases can be by affidavit and depositions, see § 7.09, and the same is presumably true for violent felonies. Proof that the defendant does or does not pose a substantial danger can presumably include expert evidence. The detention hearing must afford basic procedural safeguards, such as the right to present evidence and to cross examine adverse witnesses. State v. Blackmer, 160 Vt. 451, 462-63 (1993). Otherwise confidential juvenile records are admissible. State v. Madison, No. 95-046, slip op. 4-5 (Vt. March 22, 1995) (Morse, J.).
A person held without bail on a charge of a violent felony is entitled to trial within 60 days of the detention order, or an order setting bail if trial is not commenced within 60 days for reasons not attributable to the defense. Vermont Constitution, ch. II, § 40; 13 V.S.A 7553b.
§ 7.14 Revocation of Bail - Grounds for Revocation
n. 88:
See also State v. Trono, No. 94-334 (Vt. June 23, 1994) (Johnson, J.), affirming revocation of release conditions where the trial court properly found a nexus between the violations and a threat to the integrity of the judicial process, as required by State v. Sauve (now reported at 159 Vt. 566 (1993)); State v. Duggan, No. 94-492 (Vt. Oct. 5, 1994) (Johnson, J.), affirming revocation on proof that defendant intimidated the complaining witness. Compare State v. Turso, No. 95-659 (Vt. Jan. 17, 1996) (Dooley, J.) (record did not support conclusion that defendant intimidated witness).
§ 7.17 Bail Violation as a Criminal Offense
p. 7-16, after n. 102:
Defendants who have not actually been released pursuant to a conditions of release order do not risk the sanctions of the criminal statute. State v. Ashley, 161 Vt. 65 (1993) (jailed defendant could not be prosecuted under 13 V.S.A. § 7559 for contacting a person in violation of a conditions of release order).
An ongoing violation (such as a failure over a period of time to report to the police station) risks a multiple count prosecution for each infraction. State v. Mott, No. 95-248 (Vt. March 7, 1993) (mem.)
§ 7.18 Bail Appeals - The Right to Appeal
p. 7-17, replacing first sentence of second paragraph:
In cases not governed by the bail amendment's "violent felonies" provisions the lower court's order will be affirmed "if it is supported by the proceedings below." For the review standard in violent felony cases, see § 7.19.
§ 7.19 Procedure on Appeal
p. 7-17, after first sentence:
Recent single justice opinions vacating high money bail orders as not supported by the record, or remanding for further findings to justify the amount, include State v. Passino, No. 94-244 (Vt. May 31, 1994) (Dooley, J.); State v. Coburn, No. 94-460 (Vt. Sept. 22, 1994) (Gibson, J.); State v. Wisell, No. 94-547 (Vt. Nov. 10, 1994) (Morse, J.); State v. Woodmansee, No. 95-263 (Vt. June 16, 1995) (Dooley, J.); State v. Jeffreys, No. 95-24 (Vt. April 28, 1994) (Johnson, J.)
p. 7-17, after first paragraph insert new subheading:
a. Right-to-Bail Cases<P>
p. 7-18, after n. 113:
b. Violent Felony and Life-Imprisonment Cases<P> The preliminary steps (notice of appeal with notice to the state, and transferring the record to the supreme court) are the same in cases where the defendant is held without bail as in ordinary cases. See V.R.A.P. 9(b). But the 1994 constitutional amendment, and the legislative and supreme court responses to it, introduced some puzzling ambiguities about the subsequent stages. The amendment provides, first, that a person held without bail on a charge of a violent felony "shall be entitled to review de novo by a single justice of the Supreme Court forthwith[]"; and second, that "[a] person held without bail prior to trial shall be entitled to review of that determination by a panel of three Supreme Court Justices within seven days after bail is denied." The bail appeal statute repeats these two provisions verbatim, without resolving the contradiction. 13 V.S.A. § 7556(d),(e). V.R.A.P. 9 tackles this problem by providing for a three-justice panel in life-imprisonment cases; and a three-justice panel to review the single justice's order in violent felony cases. V.R.A.P. 9(b)(2)(A), 9(b)(1)(A).
The provision for "de novo" review in violent felony cases has generated sharp differences of opinion. The requirement is reiterated in 13 V.S.A. § 7556(d). Despite legislative history suggesting otherwise, the Vermont Supreme Court held in its first post-amendment case that review de novo does not mean that the single justice must conduct a new evidentiary hearing. Rather, the court may consider the issue on the lower court record, "without giving the usual deference to the district court's bail decision." State v. Madison, No. 95-046 (Vt. March 1, 1995). The defendant may introduce new evidence only on a showing of "good cause." Id. See also State v. Thompson, No. 95-273 (Vt. June 23, 1995) (Johnson, J.) (defendant failed to show good cause for introducing new evidence).
The legislature responded to Madison with a detailed statement of what it thought "review de novo" should mean, i.e., "that a person who is denied bail and is incarcerated prior to trial under the authority of section 40(2) of Chapter II be entitled to a second full evidentiary hearing by a single justice." 13 V.S.A. § 7555a(8). It simultaneously amended the statute relating to such appeals, 13 V.S.A. § 7556(d), to make the requirement clear as a matter of statutory (if not constitutional) law. The section now grants people held without bail pursuant to § 7553a the right to "an independent second evidentiary hearing on the merits of the denial of bail, which shall be a hearing de novo by a single justice of the supreme court forthwith.... Such hearing de novo shall be an entirely new evidentiary hearing without regard to the record compiled before the trial court...." Extending a conciliatory hand to the court the legislature allowed as how the hearing could take place before a specially appointed judge or retired justice. Id.<P>
§ 7.20 Bail Pending Sentence and Appeal
n. 115:
Ch. II, § 40(3) now specifically authorizes post-verdict, pre-sentence detention.
§ 7.21 Presentence Credit - The Grant of Credit
n. 126:
See also State v. Walker, No. 94-109 (Vt. Oct. 19, 1994) (mem.) (pre-trial detainee ordered to remain in house except for court appearances, reporting to police, etc., not entitled to have this time credited against his sentence); Reno v. Koray, 115 S.Ct. 2021 (1995) (time spent in halfway house isn't "official detention" under federal sentence-credit statute, and defendants aren't entitled to credit even if the conditions are as restrictive as outright pretrial detention).
§ 7.22 Credit on Multiple Charges
n. 129:
See also Stempel v. Groczyk, No. 94-556 (Vt. Jan. 5, 1996) (mem.) (awarding credit for out-of-state confinement based on Vermont detainer).
p. 7-21, after n. 134:
In State v. Blondin, No. 94-048 (Vt. July 28, 1995) the court held that a defendant who did not make bail on new charges, but who was serving a parole revocation sentence during most of the pre-trial period, was not entitled to pre-sentence credit on the new charges. "[W]hen a defendant is incarcerated based on conduct that leads both to revocation of probation or parole and to conviction on new charges, the time spent in jail before the second sentence is imposed should be credited toward only the first sentence if the second sentence is imposed consecutively, but toward both sentences if the second sentence is imposed concurrently." Id., slip op. 9. The opinion warns "that this holding will probably not be the final word from this Court in a complex area of the law that often requires case-by-case analysis...." Id. See also State v. Galloway, No. 95-261 (Vt. March 7, 1996) (mem.): While serving sentence on crime A defendant was charged with crime B and was ultimately sentenced to a consecutive term. Citing Blondin, the court held that he was not entitled to double credit for the time between his arraignment and sentence on crime B.
The result in such cases might be different if the defendant can show that the conditions of his confinement were made more restrictive or onerous as a result of his failure to make bail (e.g., that he would have been granted a furlough but for his status as detainee). Blondin, slip op. 12-13, distinguishing In re Zera, 137 Vt. 421 (1979).
When the parties have specified the amount of pre-sentence credit in a plea bargain the defendant must be awarded the agreed credit, even if he would not be entitled to it under the statute. In re Duff, No. 93-020 (Vt. Dec. 21, 1993) (mem.) (plea bargain called for presentence credit against each of two consecutive sentences).
CHAPTER 8
COMPETENCY TO STAND TRIAL
AND HOSPITALIZATION PROCEDURES
§ 8.01 The Due Process Competency Test
p. 8-2, after n. 4:
In State v. Thompson, 162 Vt. 532, 534-35 (1994) the Vermont Supreme Court held that the "rational understanding" requirement was not offended by trial of a defendant who believed that the judge, the lawyers, and the examining psychiatrist were all part of a satanic conspiracy. By contrast, in State v. Pollard, No. 92-592 (Vt. Jan. 20, 1995), the court held that the defendant lacked a rational understanding of the proceedings, based on his garbled speech, his desire to plead guilty immediately, and other signs of mental disturbance.
n. 12:
But see State v. Lockwood, 160 Vt. 547, 555 (1993) (counsel's statement that she was having trouble communicating with client didn't require new competency inquiry); State v. Ives, 162 Vt. 131, 141 (defendant's attorney reiterated his belief in client's incompetency but introduced no new evidence).
n. 16:
See also State v. Lockwood, 160 Vt. 547, 551 n.1 and 554 (1993) (same competency standard for pleas and trials, following Godinez v. Moran); State v. Pollard, No. 92-592 (Vt. Jan. 20, 1995) (elaborating the competency requirements for guilty pleas).
p. 8-3, after n. 17:
A finding that the defendant is not capable of representing himself is not the equivalent of, and does not necessarily imply, a finding that he is incompetent to stand trial. State v. Ploof, 162 Vt. 560, 564 (1994); see also State v. Pollard, No. 92-592, slip op. 8-11 (Vt. Jan. 20, 1995) (court overturns both competency ruling and acceptance of counsel-waiver in separate analyses). Competency questions also come up in the context of pre-trial conduct, such as the defendant's capacity to waive Miranda rights (§ 3.15) or to give a valid consent to search (§ 2.48).
p. 8-4, before the last sentence:
In Cooper v. Oklahoma, 116 S.Ct. 1373 (1996), the United States Supreme Court held that a statute which put the burden of showing incompetency on the defendant by clear and convincing evidence violated due process.
§ 8.02 Statutory Procedures - Raising Competency
p. 8-4, replacing first sentence of second paragraph:
Caselaw and subsequent statutory changes have carved out exceptions to § 4817(b)'s mandatory hearing requirement.
pp. 8-4 to 8-5, replacing last sentence of second paragraph:
A hearing can also be dispensed with when all parties stipulate to the psychiatrist's report, 13 V.S.A. § 4816(d); State v. Williams, 154 Vt. 76, 79 (1990); and when it is the prosecution which initially raises the competency question and neither side pursues it. In re Hanson, 160 Vt. 111, 113-14 (1993).
n. 26:
See also State v. Ploof, 162 Vt. 560, 563-64 (1994) (competency issue raised by defendant but not pursued after psychiatrist found him competent); State v. Davis, No. 95-090 (Vt. June 21, 1996) (defense counsel stipulated to competency).
n. 31:
See also State v. Ploof, 162 Vt. 560, 565 (1994) (reports of defendant's suicide attempts did not require sua sponte competency hearing).
p. 8-5, new paragraph after n. 31:
Once an initial competency determination has been made the court has been extremely reluctant to require judges to undertake subsequent evaluations or hearings. See State v. Lockwood, 160 Vt. 547, 554-55 (1993) (acknowledging judge's duty to be "alert to changed circumstances that would indicate the need for a new determination of competency[,]" but finding none); State v. Ives, 162 Vt. 131, 140-41 (1994) (no duty to order psychological testing or hold hearing absent new evidence); State v. Davis, No. 95-090 (Vt. June 21, 1996) (no duty to hold competency hearing when the defendant's lawyer stipulated to psychiatric evaluation and subsequent developments - entry of a new attorney who expressed concerns about competency, defendant's refusal to cooperate with mental health screener and his request to be absent from the courtroom during the complainant's testimony -didn't raise reasonable doubts about competency). Cf. State v. Senna, 154 Vt. 343, 346 (1990) (no sua sponte duty to re-investigate competency when defendant acted bizarrely at trial).
p. 8-6, replacing text between n. 32 and n. 33:
A motion for examination must be made "as soon as practicable[,]" and once made the judge is required to order a preliminary "mental health screening to be completed by a designated mental health professional...." 13 V.S.A. § 4815(d). This screening process, introduced by a 1996 amendment to the competency statutes, is meant to be completed in the courthouse within two hours, and if that is not possible the procedure can be dispensed with. § 4815(d),(e). The screener's recommendation is then "reviewed" by the court and the parties, together with other available data bearing on the competency question. On a finding of "sufficient facts" the court will order a full scale competency examination. § 4815(f). Regardless of the screening process, the judge must order an examination if she "has reason to believe" that the defendant may not be competent. 13 V.S.A. § 4817(b); State v. Welch, 159 Vt. 272, 276-77 (1992).
§ 8.03 The Psychiatric Evaluation
n. 33:
The duty to order an examination applies also to probation revocation proceedings. State v. Lockwood, 160 Vt. 547, 554 (1993).
p. 8-6, after n. 33:
The statute does not require the judge to order a psychological (as opposed to psychiatric) evaluation. State v. Ives, 162 Vt. 131, 141 (1994).
n. 34:
Before deciding on the place of examination the court must hear the recommendation of the commissioner of mental health and mental retardation. 13 V.S.A. § 4815(b).
p. 8-6, replacing second paragraph under The Place of Examination:
A 1996 revision of the mental examination statutes makes clear that all examinations must be conducted in the least restrictive setting. 13 V.S.A. § 4815(a). Commitments to the state hospital should not last longer than 30 days (the statute allows 15 day increments when necessary) and the court must fix the terms of the defendant's release once the examination has been completed. § 4815(g).
§ 8.04 Hearing and Findings
n. 69:
See also State v. Lockwood, 160 Vt. 547, 554 (1993) (due process "precluded involvement" of protective services worker once defendant had been found competent to proceed with probation revocation proceedings). Compare id., at 572 (Johnson, J., dissenting), arguing that courts should encourage third party "surrogates" "who know the defendant's capabilities and who can improve communication and understanding between the defendant and counsel." An argument can be made, under the Americans with Disabilities Act, that third party facilitators must be brought in, as a reasonable accommodation to the defendant's disability. See State v. Duford, No. 94-083 (Vt. Mar. 30, 1995) (mem.) (ADA claim waived).
p. 8-11
n. 77:
See J.L. v. Miller, 158 Vt. 601 (1992), setting forth terms of consent decree governing involuntary medication procedures; Washington v. Harper, 494 U.S. 210 (1990) (minimum due process standards).
§ 8.08 Recommitment and Release Procedures
n. 112:
The court can discharge the defendant, even if she continues to need treatment, if it determines that commitment is no longer necessary. State v. Wright, No. 94-375 (Vt. Oct. 26, 1995) (mem.). If the defendant is "discharged" to pretrial detention, the commissioner of corrections has discretion to retransfer her to the custody of mental health authorities. Id.
CHAPTER 9
PRETRIAL MOTION PRACTICE
§ 9.06 The Duty to Renew
p. 9-7, after n. 49:
A renewed pretrial motion, made on additional evidence, should specifically request reevaluation of the first ruling based on the new evidence. See State v. Ives, 162 Vt. 131, 138 n.* (1994), noting the defendant's failure to do so and affirming denial of the renewed motion without a hearing.
p. 9-8, after n. 51:
Despite these qualifications of the Senecal rule, defendants have a clear duty to renew when the pretrial ruling was expressly tentative or conditional. In State v. Streich, No. 91-335 (Vt. Feb. 17, 1995) a pretrial order barred introduction of blood-type evidence in the state's case-in-chief, but allowed the state to reoffer it on rebuttal, and when it did so the defendant had to object again to preserve the issue. Even if the pretrial ruling had excluded this evidence outright, the court noted, the defendant was imprudent to rely on it, because pretrial rulings are provisional and subject to revision.
CHAPTER 10
MOTION TO DISMISS
FOR LACK OF A PRIMA FACIE CASE
§ 10.01 Motion to Dismiss for Lack of a Prima Facie Case
n. 1:
The required showing relates only to matters for which the prosecution bears the burden of proof; it need not negate affirmative defenses at this stage. State v. Davis, No. 95-090, slip op. 7 n. 2 (Vt. June 21, 1996).
n. 2:
See State v. Fanger, No. 94-262 (Vt. June 30, 1995), reversing the grant of a prima facie motion in a trespass case, on the ground that the defendant's false exculpatory statement as to his intentions sufficiently established the mens rea element.
CHAPTER 11
DISMISSAL IN THE INTERESTS OF JUSTICE
§ 11.01 Dismissal in the Interests of Justice
n. 3:
See State v. Sauve, No. 94-670, slip op. 3-4 (Vt. Aug. 11, 1995) (power to dismiss in interests of justice not limited to de minimus cases).
p. 11-1, after n. 4:
Dismissal may be warranted on the ground that an earlier trial ended in a hung jury and the retrial seems likely to have the same fate. State v. Quinlan, No. 93-179 (Vt. Aug. 11, 1995). But see State v. Sauve, No. 94-670 (Vt. Aug. 11, 1995): After a hung jury in a sexual assault on a minor case, the state amended its information to try again. The trial judge granted the defendant's motion for dismissal in the interests of justice, but the supreme court reversed. Courts have discretion to dismiss prosecutions of even serious crimes, notwithstanding separation-of-powers considerations, but this power is restricted to rare cases and compelling concerns. Relevant factors include the seriousness of the charged offense, the extent of harm, the evidence of guilt, the likelihood of new or additional evidence at the retrial, sentencing considerations, the existence of misconduct attributable to the state, the prejudice to the defendant from delay, and the desires of the complainant. Id., slip op. 6.
The trial judge's decision is reviewable only for abuse of discretion, but the supreme court found abuse of discretion in Sauve. The judge's principal concern was the welfare of the child complainant, but there was no evidence about the effect a retrial would have on her. Other reasons cited by the trial judge - that the evidence at the second trial would be the same, and the age of the case - also didn't justify dismissal.
Rule 48, together with the continuance power, may also give courts authority to order something like a deferred sentence over prosecution objection. When the prosecution gives its consent a court can defer sentence for a period of time and place the defendant on probation; successful completion of the probation results in a vacatur of the conviction. See § 38.03. In State v. Pierce, No. 93-328 (Vt. Jan. 20, 1995) the prosecution vetoed a deferred sentence, and the defendant asked instead that the case be continued for two years, and then dismissed pursuant to V.R.Cr.P. 48(b). The Vermont Supreme Court assumed without deciding that the rule would permit this relief, but held that the trial judge did not abuse his discretion by refusing it. Id., slip op. 7-8. See also \State v. Hanlon, No. 94-584 (Vt. Aug. 11, 1995).
n. 5:
The state must have fair warning that its nol pros risks dismissal in the interests of justice. When the prosecutor, seeking to avoid a scheduling order, dismisses a case and then refiles new charges, the defense must register its objection to the initial dismissal and can not hang fire until charges are refiled. State v. Seagroves, 161 Vt. 309, 310-11 (1994).
p. 11-2, after last paragraph:
A dismissal in the interest of justice over the state's opposition requires the court to state "its findings of fact and reasons for the dismissal." V.R.Cr.P. 48(c). Omitting such findings is harmless error if the reasons for the dismissal are otherwise clear. State v. Quinlan, No. 93-179 (Vt. Aug. 11, 1995).
Review of the decision is by appeal. In re Dodge, No. 92-501 (Vt. Dec. 22, 1992) (mem.) (dismissing a habeas petition). The judge's findings will be affirmed absent an abuse of discretion. State v. Sauve, No. 94-670, slip op. 9 (Vt. Aug. 11, 1995). An appeal is premature when the trial court has only granted a lengthy continuance, which may or may not be followed by a Rule 48(b)(2) dismissal. State v. Hanlon, No. 94-584, slip op. 3 (Vt. Aug. 11, 1995).
CHAPTER 12
SPEEDY TRIAL
§ 12.03 Length of the Delay
n. 32:
See also State v. Hurley, 150 Vt. 165, 170 (1988). But see State v. Stetson, No. 94-092 (Vt. July 26, 1995) (mem.) (applying Barker analysis to 26 month delay between dismissal and refiling).
§ 12.06 Prejudice
n. 47:
See also State v. Turgeon, No. 94-683, slip op. 7-8 (Vt. March 8, 1996), rejecting a claim of prejudice by a defendant who lost witnesses as a result of a delay in his trial, because the witnesses wouldn't really have been exculpatory.
§ 12.07 Administrative Order 5
n. 59:
With the exception of prosecutions in which the defendant has been held without bail on a charge of a violent felony, which must be brought to trial within 60 days (§ 7.18, supra) Vermont law imposes no enforceable speedy trial deadlines in criminal cases.
n. 61:
"The failure to bring a defendant to trial within the time limits set by our administrative order does not necessarily mean that the defendant was denied a speedy trial or that the case against him must be dismissed. Thus, rather than quibble over calculations of time...we examine the circumstances...according to the standard set forth in Barker v. Wingo, 407 U.S. 514, 530 (1970)." State v. Turgeon, No. 94-683, slip op. 7 (Vt. March 8, 1996), quoting State v. Keith, 160 Vt. 257, 266-67 (1993).
§ 12.10 Due Process
See State v. Delisle, 162 Vt. 293, 312-13 (1994) rejecting a claim that a lengthy delay between the crime and the bringing of charges violated due process.
CHAPTER 13
STATUTES OF LIMITATIONS
§ 13.04 Jury Instructions (new section)
The defendant's right to jury instructions on lesser-included offenses, see § 34.10, may require instruction on a time-barred offense. In State v. Delisle, 162 Vt. 293 (1994) the defendant, charged with murder, requested that the jury be instructed on the lesser included offense of voluntary manslaughter. The trial judge refused, unless the defendant waived the statute of limitations. The Vermont Supreme Court reversed. Defendants should have a choice of "(1) foregoing an instruction on the time-barred, lesser-included offense, or (2) obtaining an instruction informing the jurors that, because the passage of time precludes prosecution for the lesser offense, they must acquit the defendant if they conclude that the evidence would support a conviction of the lesser crime only." Id., at 305. The legislature responded to this decision with a provision permitting conviction of manslaughter as a lesser included offense, notwithstanding the statute of limitations. 13 V.S.A. § 2310.
CHAPTER 14
DOUBLE JEOPARDY
§ 14.03 Commencement of the First Prosecution
n. 9:
On the strength of Breed v. Jones the Vermont court held in In re J.G., 161 Vt. 563 (1993) (mem.) that double jeopardy bars retransfer of a juvenile case from family court to district court following a delinquency adjudication (as purportedly authorized by 33 V.S.A. § 5527(c)).
§ 14.05 The "Same Offense"
n. 35:
In Witte v. United States, 115 S.Ct. 2199 (1995) the court held that the same crime can be (a) the basis of a prosecution and sentence and (b) a "relevant conduct" sentence enhancer under the federal sentencing guidelines for a different but related offense, without offending the double jeopardy clause.
§ 14.06 Multiple Punishments and Convictions - In a Single Trial
p. 14-8, after n. 52:
Criminal conduct involving multiple acts during a single transaction may be prosecutable only as a single crime. Compare State v. Perillo, 162 Vt. 566 (1994) (two sexual touchings prosecutable as only one offense); with State v. Mott, No. 95-248 (Vt. March 7, 1993) (mem.) (daily violation of bail condition prosecutable as multiple offenses), both discussed in § 5.12.
§ 14.07 Civil Punishment
n. 55:
In Montana Dept. of Revenue v. Kurth Ranch, 114 S.Ct. 1937 (1994) the United States Supreme Court held that a state "Dangerous Drug Tax," which imposed high taxes on the possession of illegal drugs constituted "punishment" for double jeopardy purposes, and that a subsequent criminal prosecution for the same crime violated double jeopardy. Features of the tax which made it "punitive" rather than merely "remedial" included (a) the high rate, (b) its deterrent purpose, and (c) the fact that it was triggered only by criminal conduct and only after the taxpayer had been arrested. By contrast, in United States v. Ursery, 64 L.W. 4565 (1996), the court held that drug forfeiture proceedings did not inflict "punishment" and therefore did not bar a subsequent prosecution for the same crime.
n. 57:
The court reaffirmed its holding in Strong (now reported at 158 Vt. 56 (1992)) in State v. Becker, No. 95-061 (Vt. Sept. 20, 1995).
§ 14.08 Increased Punishment
n. 63:
See also State v. Pellerin, No. 94-388 (Vt. Oct. 27, 1995) (different judge at second sentencing).
n. 64:
See also State v. Turgeon, No. 94-683 (Vt. March 8, 1996) (Pearce doesn't apply when first sentence was plea-bargained).
CHAPTER 16
VAGUENESS AND OVERBREADTH
§ 16.01 Vagueness Challenges
n. 2:
In \Benning v. State, 161 Vt. 472 (1994) the court rejected claims that the "helmet law," 23 V.S.A. § 1256, violated ch. I, art. 1 of the state constitution ("...all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending ...liberty..."), and the fourteenth amendment's substantive due process guarantee.
nn. 4-5
See also State v. Frechette, 161 Vt. 233, 235-36 (1993): The statutes permitting certain kinds of gambling by nonprofit organizations weren't intended to allow nonprofits complete discretion in how they operate, but the limitations are too vague to be fairly enforced by criminal penalties. The legislature "intended to create a limited exception to [the general prohibition of gambling] but failed to describe its contours with enough specificity to inform nonprofit organizations" of what conduct goes too far.
n. 11:
Even in an as-applied analysis, possible abuses of the vague statute remain relevant. In State v. Frechette, 161 Vt. 233 (1993) the prosecution argued that, despite vague statutory language, nonprofit gambling operations would be prosecuted only in the most egregious cases. The Vermont court rejected "the contention that the State can define violations of [the nonprofit gambling law] through prosecutorial discretion." Id., at 235.
n. 15:
See State v. Read, No. 95-023 (Vt. March 22, 1996), discussed in § 16.02, infra.
p. 16-3, after n. 15:
In State v. Oren, 162 Vt. 331 (1994), the court rejected an argument that the hindering statute, 13 V.S.A. § 3001 ("A person who hinders ... [a] law enforcement ... officer acting under the authority of this state....") is void for vagueness.
p. 16-3, after last paragraph:
In State v. Brooks, No. 93-010 (Vt. Jan. 27, 1995), the court rejected an "as applied" vagueness challenge to a prosecution for unlawful-act manslaughter which was based on an act of "reckless endangerment" with homicidal consequences. In State v. Benning, 161 Vt. 472, 483-85 (1994) the court rejected a vagueness challenge to the motorcycle helmet law, 23 V.S.A. § 1256.
§ 16.02 Overbreadth Challenges
p. 16-4, after n. 26:
In State v. McHugh, 161 Vt. 574 (1993) (mem.), the leader of an anti-abortion protest was prosecuted for "corruptly endeavor[ing] to obstruct ... justice" (13 V.S.A. § 3015) by picketing outside a judge's home. The court holds that this use of the obstruction statute violates the first amendment. The statute, as construed by the state, could cover "[a]ll speech intended to influence judicial decisionmaking, whether by demonstration, radio call-in, letter, editorial, or otherwise...." Id., at 575.
13 V.S.A. § 1026(3) - the section of the disorderly conduct statute which makes it a crime to "use abusive language" with intent "to cause public inconvenience or recklessly creating a risk thereof" - survived a first amendment overbreadth challenge by a 3-2 vote in State v. Read, No. 95-023 (Vt. March 22, 1996). The statute, the majority held, punishes only "fighting words" and this narrowing construction, together with the mens rea requirement (intent to cause public inconvenience), saved it from the overbreadth/vagueness challenge. The defendant's words were directed at a police officer who was trained not to respond violently, but the legislature didn't intend to make an exception for words directed at the police. The court saw no reason why the Vermont Constitutional free speech provision should be broader than the first amendment in this case. Justice Morse, in dissent, argued that the "fighting words" doctrine was "an archaic relic."
Hate crimes: In R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992) the United States Supreme Court struck down a "hate crimes" statute which punished such "expressive" conduct as cross-burning. A year later, in Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993), the court held that a state does not violate the first amendment by prescribing additional punishment when the victim of a crime is selected because of his or her "race, religion, color, disability, sexual orientation, national origin or ancestry...." Unlike the statute in R.A.V., which was directed at disfavored speech, the statute in Mitchell was aimed at "bias-inspired conduct." The Vermont Supreme Court summarily followed this holding in State v. Ladue, 160 Vt. 630 (1993) (mem.) rejecting a challenge to Vermont's hate crimes law, 13 V.S.A. § 1455.
CHAPTER 17
JURISDICTION AND VENUE
§ 17.01 District and Superior Court Jurisdiction
n. 6:
See State v. Pellerin, No. 94-388 (Vt. Oct. 27, 1995) (sufficient evidence to support finding that crime occurred in Vermont and not New Hampshire).
p. 17-2, after n. 8:
But see State v. Doyen, No. 94-627 (Vt. Mar. 15, 1996): Vermont can prosecute for custodial interference (13 V.S.A. § 2451) even when all the illegal acts occurred in other states. The defendant lawfully took his daughter from Vermont to New Hampshire, but then didn't return her to her mother when the visitation period was over. This was prosecutable in Vermont either as a "crime of omission" (the omission occurring within the state) or as a crime whose result occurred in Vermont. Vermont jurisdiction doesn't require an act within the state notwithstanding the language of 13 V.S.A. § 2 and State v. Huginski, 139 Vt. 95 (1980), which reversed an arson conviction because defendant had done no significant act within the state.
n. 11:
See also State v. Vanhouten and Bushell, Nos. 94-599 & 94-600 (May 16, 1996) (mem.) (remanding for consideration whether police had jurisdiction to make warrantless arrest in customs enclave). But see State v. Cameron, et al., No. 93-512 (Vt. Mar. 24, 1995) (mem.): In State v. Elliott, 159 Vt. 102 (1992), The court ruled that the aboriginal rights of Abenaki Indians had been extinguished by the "increasing weight of history". The defendants in Cameron argued that this finding of extinguishment was basically factual, not legal; that the Elliott court read the history wrong; and that the new defendants (who were not parties to Elliott) had a right to prove the true history of the Abenakis by new evidence. Summarily rejecting these claims the Vermont court held that Elliott decided "a matter of law based on historical fact" and refused to permit relitigation of the history.
CHAPTER 18
MOTION TO TRANSFER TO FAMILY COURT
§ 18.07 Retransfers
p. 18-5, after n. 27:
Although a district court also lacks power rescind a transfer, it can correct a mistaken transfer order. In State v. Breault, 162 Vt. 625 (1994) (mem.), a sixteen year old boy, charged with aggravated sexual assault, made a motion to transfer the case to juvenile court. The state failed to file a response and the court ordered the transfer. The state then moved for reconsideration and the judge ruled that she lacked jurisdiction to bring the case back. The supreme court reversed: the transfer was based on a mistake (the misconception that the state didn't oppose it) and the judge could and should have simply "retained jurisdiction" when she learned that the state did oppose transfer.
n. 28:
In re J.G., 161 Vt. 563 (1993) (mem.) (transfer of delinquency case from family court to district court for trial, after delinquency adjudication in the family court, violates double jeopardy).
CHAPTER 20
DISQUALIFICATION OF JUDGES
AND PROSECUTORS
§ 20.01 Disqualification of Judges - Procedure
n. 3:
If recusal is required at the last minute, or in the middle of a trial, the fact that judicial resources would be wasted shouldn't be a consideration. A late motion for recusal shouldn't be denied on that basis, although an attorney may be subject to sanctions for delaying the motion. Bell v. Melsur Corp., 161 Vt. 35 (1993).
p. 20-2, after "Once a facially adequate motion for recusal has been filed the judge...cannot deny it herself."
See Bell v. Melsur Corp., 161 Vt. 35 (1993): The civil disqualification rule, V.R.C.P. 40, prevents a judge from denying a recusal motion, and requires that the matter be referred to the administrative judge. In this case the trial judge initially denied the motion, but the error was harmless because he later referred it to the administrative judge.
p. 20-2, after "...not immediately appealable."
A finding by the administrative judge refusing disqualification on the ground that the trial judge's "impartiality might reasonably be questioned" (Canon 3C(1) of the Code of Judicial Conduct) is reviewable by an abuse of discretion standard, i.e., reversible only "if the record reveals no reasonable basis for the decision." Bell v. Melsur Corp., 161 Vt. 35 (1993).
§ 20.02 Grounds for Disqualification
n. 16:
See In re Wilkinson, No. 95-156 (Vt. April 12, 1996), holding (in part by reference to the code of conduct) that a trial judge may not testify in defense of his trial in a PCR proceeding claiming ineffective assistance of defense counsel.
n. 38:
See State v. Davis, No. 95-090 (Vt. June 21, 1996) (judge's participation in aborted change of plea proceeding didn't disqualify him for trial).
n. 39:
State v. Davis, No. 95-090 (Vt. June 21, 1996) (privileged competency material in PSI).
n. 19:
But see State v. Pellerin, No. 94-388 (Vt. Oct. 27, 1995): The trial judge was a prosecutor in 1972 and had signed an information against the defendant, but he didn't remember anything about it and therefore wasn't required to recuse himself; State v. Cleary, 161 Vt. 403, 405-6 (1994) (disqualification not required for judge who had no recollection that she previously represented the defendant).
p. 20-3, after "...familial involvement with the case or its principals."
In State v. Putnam, No. 95-344 (Vt. Jan. 12, 1996) the court held that disqualification of Judge Theresa DiMauro was not required on a showing that her husband, a state police officer, worked in the same barracks as another officer who was a potential witness in the pending case. There was no supervisory relationship between the witness and the judge's husband, and the witness and the husband were in different office divisions. The court reached a different decision in a follow-up case, State v. Lincoln, No. 96-078 (Vt. May 15, 1996) in which the witness had supervisory responsibilities over the judge's husband.
n. 26:
Some involvement by a biased judge may be harmless error. In In re Hunt, No. 93-397 (Vt. Jan. 27, 1995), the Vermont court held that participation by an appellate judge in two pre-trial rulings - affirming the rejection of a plea bargain and ordering a sua sponte venue change - were harmless error, when the defendant ultimately received a fair trial before an unbiased judge.
n. 36:
See Bell v. Melsur Corp., 161 Vt. 35 (1993) (the fact that an attorney had previously filed a judicial conduct complaint against the judge is not per se grounds for disqualification).
p. 20-6, after n. 42:
In Liteky v. United States, 114 S.Ct. 1147 (1994) the court re-examined the "extrajudicial source doctrine" - the rule which holds that judicial bias "must stem from an extrajudicial source" in order to warrant disqualification. Construing a federal statute which requires disqualification in "any proceeding in which [the judge's] impartiality might be questioned[,]" the court held that a judge's in-court rulings, or opinions formed on the basis of court proceedings, can sometimes show a disqualifying bias, but this will happen only "in the rarest of circumstances" when they show deep-seated bias "that would make fair judgment impossible...." See also State v. Streich, No. 91-335 (Vt. Feb. 17, 1995) (various rulings and statements by the trial judge didn't establish bias against the defense: a limit of thirty minutes for cross-examination wasn't unreasonable; and calling defense counsel's argument a "fantasy" showed frustration but not bias); State v. Hildebrand, No. 92-283 (Vt. April 21, 1993) (mem.) (a judge who cut short the prosecution presentation and then found the defendant guilty was only trying to limit cumulative evidence; he hadn't prejudged the case).
CHAPTER 21
JOINDER AND SEVERANCE
§ 21.03 Severance
n. 10:
See also State v. Nunez, 162 Vt. 615 (1994) (mem.) (severance motion waived by failure to renew) and State v. Alcid, No. 93-326 (Vt. April 1, 1994) (mem.) (same).
n. 12:
Pursuant to a 1995 amendment, the court may grant severance during a trial without the defendant's consent on a finding of manifest necessity. V.R.Cr.P. 14(b)(1)(B)(ii) (1995). A supportable finding of "manifest necessity" will permit retrial of the severed charges without violating the double jeopardy guarantee. V.R.Cr.P. 14(b)(4)(E) (1995). See § 14.04.
n. 20:
See also State v. Diaz, No. 94-184 (Vt. Mar. 24, 1995) (mem.) (no error in refusing to sever prosecutions for three cocaine sales, because evidence of all sales would be admissible in a prosecution for any one of them).
§21.04 Joinder and Severance of Defendants
Rule 14 was amended in 1995 to eliminate the absolute right of felony codefendants to severed trials, and to specify procedures and standards.
The new rule entirely eliminates the felony-misdemeanor distinction. When defendants have been charged jointly under V.R.Cr.P. 8(b) the court "shall" order severance on motion of either side if the cases have been misjoined under Rule 8(b)(2). V.R.Cr.P. 14(b)(2)(A). The court must also order severance on the prosecution's request "if the court finds that there is no reasonable likelihood of prejudice to any defendant"; and on the defendant's request "unless the court finds that there is no reasonable likelihood that the defendant would be prejudiced by a joint trial." V.R.Cr.P. 14(b)(2)(B),(D). The court also "may" grant severance at any time "with the consent of the prosecution and the defendant or defendants to be severed." V.R.Cr.P. 14(b)(2)(F). To avoid double jeopardy problems, mid-trial severance at the prosecution's request can only be granted on consent, or on a finding of manifest necessity. V.R.Cr.P. 14(b)(2)(B).
The "reasonable likelihood of prejudice" standard is spelled out in V.R.Cr.P. 14(b)(2)(E), which requires the court to consider (among other factors) "whether, in view of the number of offenses and defendants charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense and as to each defendant."
In Zafiro v. United States, 113 S.Ct. 933 (1993), the United States Supreme Court held that F.R.Cr.P. 14, which also provides for severance of defendants when either the government or a defendant will be prejudiced by a joint trial, does not give defendants a right to severance simply because they will be presenting mutually exclusive or antagonistic defenses. Severance is required only if a joint trial would compromise a specific trial right of one or more of the defendants or prevent the jury from making a reliable verdict.
The amended rule deals in detail with the Bruton problem, discussed at p. 21-5 of the main volume. When a codefendant's confession implicates but is not admissible against a joint defendant, the court must determine if the prosecution intends to introduce it and, if so, order appropriate relief, which can be suppression of the confession, redaction, or severance. V.R.Cr.P. 14(b)(2)(C)
n. 28:
When the evidence does not support the initial joinder decision, the court must grant a severance at the close of the prosecution's case unless it finds that "there is no reasonable likelihood that the moving defendant would prejudiced by a joint trial." V.R.Cr.P. 14(b)(3).
n. 33:
See V.R.Cr.P. 14(b)(2)(C)(iii).
§ 21.05 Consequences of Failure to Join and Erroneous Joinder
p. 21-6, replacing last paragraph and n. 39:
Charges or defendants that have been joined for trial may not be severed on the prosecutor's motion after trial has commenced, except with the defendant's consent or on a finding of "manifest necessity." V.R.Cr.P. 14(b)(4)(D).
CHAPTER 22
PRESS ACCESS TO PROCEEDINGS
AND DOCUMENTS
§ 22.02 Closure of Proceedings
n. 5:
See also El Vocero de Puerto Rico v. Puerto Rico, 113 S.Ct. 2928 (1993) (rule of criminal procedure which says that preliminary hearings "shall be held privately" violates the first amendment).
§ 22.06 Cameras in the Courtroom
p. 22-7
See State v. Streich, No. 91-335 (Vt. Feb. 17, 1995) (trial judge's "inaccurate" explanation of television cameras to jury panel not reversible error because defendant wasn't prejudiced).
CHAPTER 23
CONTINUANCES
§ 23.01 Formal Requirements
n. 3:
See State v. Ives, 162 Vt. 131, 141 (1994) (judge could have denied continuance motion the ground that it was not supported by an affidavit).
§ 23.02 Trial Court Discretion
n. 5:
See also State v. Hanlon, No. 94-584 (Vt. Aug. 11, 1995) (no abuse of discretion in continuing trial until disposition of defendant's out-of-state cases); State v. Ives, 162 Vt. 131, 141-42 (1994) (upholding denial of continuance for psychological testing).
p. 23-2, after n. 7.5:
Concerning the prosecutor's power to circumvent the denial of a continuance by entering a nolle prosequi and filing new charges, see State v. Seagroves, 161 Vt. 309 (1994) and State v. Jones, 157 Vt. 553 (1991), discussed in § 11.01.
§ 23.04 Constitutional Limits
p. 23-3, after first paragraph:
By contrast, in State v. Heath, 162 Vt. 618 (1994) (mem.), the Vermont court held that the defendant was entitled to a continuance to track down exculpatory evidence. In a sexual assault case an FBI hair sample analysis (trying to match a hair found in the complainant's underpants with hair taken from the defendant) was not provided to the defense in time for trial, and the judge denied a continuance. After trial, it turned out the hairs didn't match, and the defense filed a motion for new trial, which was also denied. Reversing, the supreme court held that defendant was entitled to a continuance and prejudiced by its denial.
CHAPTER 24
DISCOVERY
§ 24.01 In General
The V.R.Cr.P. 15-17 discovery devices do not apply to probation revocation proceedings, which are governed by the more limited discovery provisions of V.R.Cr.P. 32.1 State v. Gedutis, No. 93-216 (Vt. Oct. 12, 1994) (mem.).
§ 24.07 V.R.E. 404, 609, and 804a Evidence
p. 24-6, after n. 36:
"The purpose of Rule 26(c) is to inform the defendant of crimes the State intends to introduce and to allow the defendant time to respond by a motion in limine or otherwise. This burden is not met by general discovery, in which the State discloses only what evidence it has." State v. Houle, 162 Vt. 41, 45 (1994). It was error in Houle to admit evidence of a prior threat in the absence of Rule 26(c) notice, but the defendant failed to object. Id. See also State v. Kelley, No. 93-612, slip op. 5 (Vt. Feb. 17, 1995) (rule violation harmless error).
§ 24.09 Exculpatory Evidence
p. 24-8, after n. 47:
The court clarified Bagley's materiality requirement in Kyles v. Whitley, 115 S.Ct. 1555 (1995), holding that a number of items of suppressed evidence in that case could have changed the result, and that the prosecution was therefore guilty of suppressing "materially" exculpatory evidence. Materiality doesn't require proof by a preponderance of evidence that the suppressed evidence would have resulted in acquittal. Moreover, materiality must be considered collectively, not item-by-item, and so the prosecutor, who has to decide whether or not to disclose particular evidence, has a duty to learn about all possibly favorable evidence held by police and other officials. Once a materiality determination is made, courts shouldn't engage in additional harmless error analysis.
§ 24.10 Loss or Destruction of Evidence
p. 24-9, after n. 56:
In State v. Delisle, 162 Vt. 293 (1994) the court adopted the Bailey test as the state constitutional test for lost-evidence claims, rejecting the federal standard of Arizona v. Youngblood, 488 U.S. 1 (1988). The losses in this case (a bone, and the tarp in which the body was wrapped) didn't require reversal under Bailey. See also State v. Carpenter, No. 94-346 (Vt. Jan. 31, 1995) (mem.) (not plain error that the state had lost the victim's first statement to the police).
p. 24-9, replacing first sentence of first full paragraph:
The federal constitutional requirements are much less exacting.
§ 24.11 Material That Need Not Be Disclosed
n. 68:
See State v. Emmi, 160 Vt. 377 (1993): The fact that an informant provided the information on which a warrant was based isn't enough to compel disclosure of his or her identity. The informant in this case wasn't present at the search and, unlike the defendant in State v. Veburst, 156 Vt. 133 (1991), Emmi did not allege police perjury or other misconduct which might have made the informant's testimony relevant.
§ 24.13 Consequences of Prosecution Discovery Violations
n. 93:
See State v. Streich, No. 91-335 (Vt. Feb. 17, 1995) (late delivery of the results of a blood-evidence test didn't give the state an unfair advantage; no evidence that the state acted in bad faith).
§ 24.17 Consequences of Defense Discovery Violations
n. 128:
One remedy for late defense disclosure is to allow the prosecutor to argue it to the jury. State v. Seagroves, 161 Vt. 309, 312-13 (1994) (the judge could allow late-disclosed witness to testify but "an inference is nonetheless justified that revealing an undisclosed witness at trial was done to catch the State by surprise.")
n. 130:
Also approving the exclusion of defense witnesses for discovery violations, see State v. Verrinder, 161 Vt. 250, 254-56 (1993) (late notice of defense witness), and State v. Hugo, 156 Vt. 339, 343-45 (1991) (defense witness disclosed to state on first day of trial). In Hugo the late notice was attributed to counsel's fault, but in Verrinder the defendant did not discover the witness until a week before the trial. 161 Vt. at 255. In both cases the court stressed that the excluded evidence was not crucial to the defense.
n. 132:
See State v. Passino, 161 Vt. 515, 521-22 (1994).
p. 24-18, after n. 136:
See State v. Passino, 161 Vt. 515 (1994): The court overturned a voluntary manslaughter conviction because the defense was not allowed to introduce exculpatory DNA evidence. The defendant's pants were spattered with four blood stains; standard serology tests identified one of the stains as the victim's blood type, but DNA analysis of a second stain absolutely excluded the victim. The state proved the serology tests. The trial judge excluded the defense DNA evidence as a discovery sanction, for failing to list the DNA witness. The supreme court reversed, holding that the sanction violated the defendant's sixth amendment rights and was disproportionate to the offense: nothing suggested a willful discovery violation; the state knew about the evidence (it came from its own experts) and knew that the defense planned to offer it.
§ 24.21 Claims of Privilege
n. 156:
In State v. Gomes, 162 Vt. 319 (1994), a prosecution for sexually abusing daycare children, the defendant was entitled to get the children's attendance records. The operators of the center refused to give over the records on fifth amendment grounds, because the act of producing them could be incriminating. The court recognized the potential for self-incrimination, but held that the privilege doesn't apply to records (like day care attendance records) which are required to be kept by law.
§ 24.25 Deposition Procedure
n. 195:
See State v. Batchelder, No. 96-125, slip op. 3-5 (Vt. July 5, 1996): The defense has a right under the discovery rules to take tape-recorded depositions; a judge can require stenographic recording only "to prevent abuse" in a particular case, and not on the ground that tape recordings are generally less reliable than stenographers.
n. 196:
State v. Batchelder, No. 96-125, slip op. 4 (Vt. July 5, 1996).
CHAPTER 25
ACCESS TO THE TRIAL
§ 25.01 The Defendant's Right To Be Present
p. 25-2, after n. 6:
The right to be present at trial "is fundamental to the basic legitimacy of the criminal process." In re Cardinal, 162 Vt. 418, 419 (1994).
n. 18:
See also State v. Bradley, No. 94-582 (Vt. Nov. 3, 1995) (court made adequate inquiry to insure defendant's absence from portions of trial was voluntary and knowing).
p. 25-3, after n. 18
In In re Cardinal, 162 Vt. 418 (1994) the Vermont court held that a defendant waived his right to be present at the individual portion of the jury voir dire - by failing to protest his lawyer's instruction to remain at counsel table. The individual portion of the voir dire was held at the bench and the defendant couldn't hear most of it. When he started to come forward one of his lawyers told him to "wait there." In a petition for post-conviction relief he claimed that he had been effectively denied his right to attend the voir dire. The PCR court overturned his conviction, holding that he had not waived his right to be present by obeying his attorney's direction. The supreme court reversed, holding that although he had a right to see and hear all portions of the voir dire, and could not have been excluded, there was no evidence that the trial judge intended to exclude him or knew he couldn't see and hear. His "failure to advise the court" of his situation acted as a waiver. The lawyer's advice to "wait there" could have been strategic and wasn't ineffective assistance. The decision was ultimately affirmed on habeas corpus. Cardinal v. Gorczyk, No. 95-2206 (2d Cir., April 3, 1996), reversing Cardinal v. Gorczyk, No. 5:94-CV-200 (D. Vt. March 16, 1995). See also In re Harris, No. 94-658 (Vt. Dec. 22, 1995) (mem.), reaching the same result on similar facts.
CHAPTER 26
TRIAL BY JUDGE OR JURY
§ 26.03 Waiver Procedures
n. 19:
See State v. West, No. 94-231 (Vt. Sept. 1, 1995) (reversing a conviction for domestic assault on grounds of improper jury trial waiver); State v. Stukas, No. 94-179 (Vt. April 25, 1995) (unpub. mem.) (reversing a trespass conviction). Cf. State v. Groff, No. 93-542 (Vt. Oct. 19, 1994) (mem.) noting deficient colloquy but holding that "in the circumstances of this case" the defendant had the burden to show the absence of a waiver.
p. 26-4, after n. 19:
Rule 23's waiver requirement does not apply to waivers of the right to a jury at the punishment phase of a DUI recidivist proceeding. State v. Sharby, No. 94-611 (Vt. Sep. 28, 1995) (mem.).
CHAPTER 27
SELECTING AND EMPANELING THE JURY
§ 27.05 Individual and Segregated Voir Dire
p. 27-5, before last sentence:
The defendant's right to be present at trial includes the right to effectively observe the individual voir dire. See In re Cardinal, 162 Vt. 418 (1994) (holding that this right is waived if not asserted), discussed in § 25.01, supra.
§ 27.08 Preserving Claims of Error
n. 45:
See also State v. Pellerin, No. 94-388 (Vt. Oct. 27, 1995) (defendant waived objection to the denial of a juror challenge by failing to say there were additional jurors he wanted to strike).
§ 27.11 Limits on Use of Peremptory Challenges
n. 57:
In J.E.B. v. Alabama, 114 S.Ct. 1419 (1994), the court extended the rule of Batson v. Kentucky to peremptory challenges based on gender.
n. 58:
The court clarified the challenge process in Purkett v. Elem, 115 S.Ct. 1769 (1995). Batson claims have three parts to them: (1) a prima facie showing of discrimination on grounds of race (or gender) by the party opposing the challenge, after which (2) the challenging party has the burden to explain the challenge on neutral grounds, and (3) the court rules on whether purposeful discrimination has been shown. The stage two reason only has to be facially neutral; it doesn't even have to be plausible (in this case "unkempt" hair and "suspicious" beards), although the judge can decide at stage three, in light of the weakness of the justification, that the challenge was in fact discriminatory.
§ 27.12 Preserving Jury Integrity After Voir Dire - Jury Sequestration
p. 27-10, erratum:
Jury sequestration, formerly a right in felony cases, is discretionary in all cases. V.R.Cr.P. 23(d). A defendant seeking sequestration must show circumstances capable of prejudicing the jury's deliberative function. Extensive publicity and presence of the media do not require sequestration without a showing of a "nexus" between the publicity and the predicted prejudice. State v. Brooks, No. 93-010, slip op. 12-14 (Vt. Jan. 27, 1995).
§ 27.13 Delays Between Voir Dire and Trial
A 1995 rule amendment eliminated the right of felony defendants to a pick-and-go jury and erected specific time limits for commencement of the trial proper: 48 hours for life-imprisonment felonies, 14 days for other felonies, and 30 days for misdemeanors. V.R.Cr.P. 23(d). If the delay is more than 24 hours (presumably from these deadlines) the parties have a right to a supplemental voir dire. Id.
CHAPTER 28
OPENING STATEMENTS
§ 28.02 Remedies for Prejudicial Opening Statements
n. 12:
See State v. Asselin, No. 94-026 (Vt. July 14, 1995) (mem.) (prosecutor's references in opening to an audio tape which had been excluded by the court did not require mistrial).
CHAPTER 29
THE RIGHTS TO CONFRONT
AND PRESENT EVIDENCE
§ 29.01 Scope of the Right
n. 1:
The rights to confront and present evidence sometimes merge, as in State v. Cartee, 161 Vt. 73 (1993), where the defendant was prevented from either introducing evidence about a witness' motive to fabricate or cross-examining her about it.
p. 29-1, after n. 1:
Both clauses link the right to criminal proceedings, and in In re A.L., No. 93-509, slip op. 2-3 (Vt. April 14, 1995) (mem.) the Vermont Supreme Court held that there is no constitutional right to face-to-face confrontation in civil child-in-need-of-supervision proceedings.
§ 29.04 Face-to-Face With the Jury
n. 20, erratum:
Citation should be Coy v. Iowa, 487 U.S. 1012 (1988).
§ 29.05 Cross-Examined
n. 24:
See, e.g., State v. Gleason, No. 91-496 (Vt. Jan. 6, 1993) (mem.) (court erred in refusing to let defendant impeach complainant and her daughter with prior inconsistent statements); State v. Dubuque, No. 93-203 (Vt. Sept. 23, 1994) (mem.) (court erred in preventing impeachment of complainant with prior robbery conviction).
p. 29-5, after n. 28.
The cross-examiner must be allowed an opportunity to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Delaware v. Fensterer, 474 U.S. 308, 318 (1974). For holdings that limitations on cross-examination violated the sixth amendment, see Olden v. Kentucky, 488 U.S. 227 (1988); Delaware v. Van Arsdall, 474 U.S. 15 (1986); Davis v. Alaska, 415 U.S. 308 (1974); Smith v. Illinois, 390 U.S. 129 (1968). For similar Vermont Supreme Court holdings, see State v. Rounds, No. 93-127 (Vt. Sept. 27, 1994) (mem.) (defendant had right to cross-examination which could have revealed witness' motive to fabricate); State v. Cartee, 161 Vt. 73 (1993) (discussed in § 29.07, infra); State v. Covell, 146 Vt. 338, 341-42 (1985). Compare State v. Reavis, No. 93-303 (Vt. Nov. 1, 1995) (mem.) (defendant failed to offer coherent theory of relevance to justify cross-examination); State v. Webster, No. 94-106 (Vt. March 15, 1996) (same); State v. Washington, No. 93-410 (Vt. Oct. 24, 1995) (no error in refusing to allow impeachment of prosecution witness with videotaped deposition, to show prior inconsistent demeanor). Cf. State v. Plante, 94-053 (Nov. 3, 1995) (state chemist's assertion of privilege against self-incrimination justified restriction on defense cross-examination about chemist's drug use).
§ 29.07 The Right to Present Evidence
n. 54:
See also Montana v. Egelhoff, 64 L.W. 4500, 4501, 4504-05 (1996) (plurality opinion), upholding a state law prohibiting evidence of voluntary intoxication to negate culpable mens rea, and stressing the limitations on the constitutional right to present relevant evidence.
n. 55:
See State v. Olsen, No. 95-119 (Vt. May 10, 1996): In a murder case the court properly excluded evidence that the victim's daycare provider had been investigated for abusing another child. A defendant trying to show a third party's involvement has to show "some evidence to directly connect [the] third person to the crime charged." Slip op. 5, quoting State v. Gilman, 158 Vt. 210, 214 (1992).
p. 29-9, after n. 58:
In State v. Cartee, 161 Vt. 73 (1993) the court reversed convictions of two counts of sexual assault on a minor because the trial judge excluded evidence that the complainant may have fabricated the charges to dissuade the defendant from testifying against the complainant's stepfather in another investigation. In cases where a witness' credibility is critical, the trial court should be "particularly cautious in exercising its discretion to preclude impeachment evidence offered by a defendant[.]" Id., at 77, quoting State v. Covell, 146 Vt. 338, 341 (1985). See also State v. Passino, 161 Vt. 515 (1994) (overturning a voluntary manslaughter conviction because the defense was prevented from introducing exculpatory DNA evidence as a discovery sanction, discussed in § 24.17, supra). Compare State v. Samir Abed-Rabbo, No. 93-404 (Vt. March 31, 1994) (mem.): In a simple assault case the trial judge refused to let the defendant prove that the complainant had falsely accused him of violating a family court visitation order, to show that her current complaint was part of a scheme to gain custody of their children. The supreme court affirmed, seeing insufficient indication of a scheme and no abuse of discretion. See also State v. Covino, No. 91-231 (Vt. Dec. 2, 1994) (not error, under V.R.E. 403, to exclude evidence of the defendant's voluntary appearance at the police station as proof of consciousness of innocence); State v. Washington, No. 93-410 (Vt. Nov. 1, 1995) (defendant properly blocked from showing tangentially relevant photograph of witness).
p. 29-9, after n. 60:
Although the right is personal, the defendant's acquiescence in counsel's advice not to testify constitutes a waiver. State v. Schellhardt, No. 95-336 (Vt. June 28, 1996) (mem.); In re Mecier, 143 Vt. 23 (1983). See also State v. Bickford, No. 95-048 (Vt. March 7, 1996) (mem.) (right to testify must be asserted before verdict).
n. 64:
Montana v. Egelhoff, 64 L.W. 4500, 4501 (1996) (plurality opinion).
§ 29.08 Presenting and Confronting Privileged Evidence
n. 77:
In State v. Lund, No. 94-284 (Vt. June 16, 1995) the defendant, charged with sexually assaulting a six year old girl, offered to prove that the girl had been sexually assaulted by her grandfather three years earlier, and that inconsistencies in her current accusation indicated confusion over the two assaults. The trial court ruled this material out under the rape shield law, because it didn't fit any of the three exceptions to the rule of exclusion. The defendant appealed, claiming a confrontation clause violation. The supreme court affirmed on the ground that the probative value of the evidence was minimal, and its prejudice was great (in the form of invading the complainant's privacy and causing her emotional harm). See also State v. Jarry, 161 Vt. 629 (1994) (mem.) (evidence that complainant had chlamydia and defendant did not held properly excluded as prior sexual conduct; defendant's negative test didn't lead to a conclusion one way or the other concerning the alleged intercourse).
CHAPTER 30
THE PRIVILEGE AGAINST
SELF-INCRIMINATION
§ 30.03 Self-Incrimination
n. 12:
See also State v. Rickert, No. 94-187 (Vt. Aug. 26, 1995) (mem.): The defendant pled nolo to a number of charges that he assaulted and harassed his girlfriend. He was placed on probation, one condition of which required him to a complete domestic abuse education program. At his DAEP intake interview he admitted a significant history of abuse with his girlfriend, but denied he ever threatened her with a gun as alleged in the police affidavits. He was refused entrance into the program on this ground and his probation was accordingly revoked for noncompliance with the DAEP condition. In response to a broad-based attack on this practice, the supreme court rejected fifth and first amendment claims in a cursory fashion, holding that State v. Gleason, 154 Vt. 205 (1990), controlled the fifth amendment argument, and State v. Mace, 154 Vt. 430 (1990), controlled the first amendment claim. A related due process claim, which argued that the state had to prove that the defendant was "in denial" of true facts, was waived by a failure to object on that ground. See § 38.06.
§ 30.04 Compulsion
p. 30-5, after n. 23:
In State v. Gomes, 162 Vt. 319, 322-28 (1994) the defendant, charged with sexually abusing children at a daycare center, subpoenaed daycare attendance records. The daycare owners resisted the subpoena, arguing that the act of production would be incriminatory. The trial court upheld the claim of privilege but the supreme court reversed, on the ground that the subpoenaed records were required to be kept by law, and therefore fell into an exception to the "act of production" rule.
n. 26:
See also Mullin v. Phelps, 162 Vt. 250 (1994): In a custody proceeding between separated parents the family court cut off all contact between the father and his sons unless he acknowledged sexually abusing them. The supreme court reversed, holding that the finding of abuse based on a mere preponderance of the evidence wasn't enough to cut off all parent-child contact -the order had the effect of terminating all parental rights, and the constitutional standard of proof for that is clear and convincing evidence. Even if the abuse allegations had been proven by clear and convincing evidence, the "acknowledge-or-else" requirement violated the fifth amendment.
n. 30:
See § 14.04, supra.
§ 30.06 The Defendant's Right Not To Testify
n. 42:
State v. Seagroves, 161 Vt. 309 (1994) (prosecutor could comment on lack of detail in defendant's statement to police).
§ 30.07 The Witness's Right
n. 47:
State v. Plante, 94-053 (Nov. 3, 1995) (state chemist properly asserted privilege against self-incrimination during defense cross-examination about chemist's drug use)
§ 30.09 Scope of Immunity
n. 61:
The grant of immunity must protect the defendant from federal as well as state prosecution. Murphy v. Waterfront Commission, 378 U.S. 52 (1964).
n. 63, erratum:
Citation should read, Counselman v. Hitchcock, 142 U.S. 547, 582 (1892).
CHAPTER 31
ADMISSIBILITY OF EVIDENCE
(SELECTED TOPICS)
§ 31.01 Introduction
p. 31-2, after first paragraph:
Evidentiary privileges are sometimes created by federal law. See, e.g., In re B.S., No. 94-036 (Vt. Mar. 31, 1995), holding in a termination of parental rights case that the trial judge's admission of the mother's alcohol treatment records and her confidential communications to a counselor violated 42 U.S.C. § 290dd-2. Some privileges are common law creations. See V.R.E. 501; In re Inquest Proceedings, No. 96-108 (Vt. March 21, 1996) (mem.) (refusing to recognize parent-child privilege); State v. Vincent, 156 Vt. 259, 262 (1991) (not deciding whether common law privilege barred disclosure of rape crisis worker's identity).
p. 31-3, first sentence should read:
Rules regarding disclosure of an informant's identity (V.R.E. 509) and the notice requirements for evidence offered under V.R.E. 404, 609, and 804a, are discussed in connection with pretrial discovery, in §§ 24.07 and 24.11.
§ 31.02 Relevance, Probative Value, and Prejudicial Impact: V.R.E. 401-403
p. 31-4, after last sentence of section:
See, e.g., State v. Powers, No. 92-553 (Vt. Dec. 16, 1994): In a prosecution for lewd and lascivious conduct with a boy, the court held it was not error to admit a letter the defendant wrote to SRS falsely saying he had AIDS and suggesting the victim should be tested. The letter was probative of improper contact with the victim, and its probative value was not outweighed by the danger of irrational juror fears of AIDS, the implication that defendant was homosexual and thus more likely to have had lewd contact with the victim, or by the risk that the letter would be taken as improper character evidence.
§ 31.03 Other Crimes and Bad Acts: V.R.E. 403, 404, 702
p. 31-4, after indented quote:
The rule speaks of "other" misconduct and although its principal application is to acts and wrongs preceding the charged crime, it also provides a basis for admitting subsequent acts which tend to show commission of the crime. State v. Jones, 160 Vt. 440, 445 (1993).
n. 7:
See discussion and citations in § 24.07, supra.
§ 31.05 Proper Reasons for Admissibility
n. 16:
See, e.g., State v. Jones, 160 Vt. 440 (1993) (affirming admission of defendant's love poems to complainant and other tokens of affection in a child sexual assault case, to show motive, plan, etc.); State v. Plante, 94-053 (Nov. 3, 1995) (evidence that defendant told people on the night of the crime that he was on parole for killing a woman in Florida, offered to show his "state of mind"); State v. Pellerin, No. 94-388 (Vt. Oct. 27, 1995) (testimony that defendant warned the complainant of his ties to the Mafia, to show intent, preparation or plan).
n. 21:
See also State v. Kelley, No. 93-612 (Vt. Feb. 17, 1995) (defendant's misdeeds shortly before murder showed escalating conduct and context).
n. 23:
See also State v. Carpenter, No. 94-346 (Vt. Jan. 31, 1995) (mem.) (defendant opened the door to the victim's testimony about other uncharged lewd acts, by giving an account different from hers of the day's events; the other acts were "probative of the victim's credibility as to her recollections of that day's events").
§ 31.06 Establishing the Other Crime
n. 28:
State v. Winter, 162 Vt. 388, 400 (1994).
p. 31-7, after "Proof of a conviction easily satisfies this standard..."
But see In re T.F., No. 94-177 (Vt. Feb. 24, 1995) (mem.), holding it was prejudicial error in a CHINS case to admit prior nolo contendere pleas as evidence of the conduct charged in those cases, although the convictions themselves would be admissible.
§ 31.07 Probative Value vs. Prejudicial Impact
n. 40:
See State v. Winter, 162 Vt. 388, 396-97 (1994) (four years too long, but court has not fixed hard and fast time limits); State v. Kelley, No. 93-612 (Vt. Feb. 17, 1995) (defendant's conduct hours before the murder had great probative value).
n. 42:
State v. Winter, 162 Vt. 388, 400 (1994) (state's need for 404(b) evidence an important factor).
n. 44:
State v. Winter, 162 Vt. 388, 398 (1994) (no "unique factors" justified proof of prior crimes to show modus operandi).
n. 46:
State v. Winter, 162 Vt. 388, 399 (1994); State v. Forbes, 161 Vt. 327, 330 (1994).
n. 48:
State v. Winter, 162 Vt. 388, 400-01 (1994) (low threshold for admission requires court to assess strength of proof of uncharged misconduct in Rule 403 analysis). Cf. State v. Jones, 160 Vt. 440, 450 (1993), distinguishing McCarthy on the ground that the prosecutor did not introduce "extensive details" of prior uncharged sex offenses.
p. 31-10, after n. 48:
Despite these guidelines the Vermont Supreme Court had generally refused to second guess trial judges' V.R.E. 404 and 403 rulings. Most of the court's Rule 404(b) caselaw paid deference to the trial court's discretion and declined to find that discretion had been abused. Two opinions handed down in 1994, State v. Forbes, 161 Vt. 327 (1994), and State v. Winter, 162 Vt. 388 (1994), substantially changed this picture.
In Forbes the defendant was charged with a single act of lewd and lascivious conduct with his daughter on a stated date. The defendant denied the charge and suggested that his daughter made it up because he had threatened to send her to "reform school." The state responded with evidence of a long-term pattern of sexual abuse and violent conduct. On appeal the supreme court rejected the defendant's Rule 404(b) claims. The prior sexual abuse may or may not have been admissible to show "intent," "opportunity," or "plan" - the reasons put forward by the state - but the court noted that the defendant "did not put any of these factors in issue." Rather, it was admissible to supply a context for the particular charge, because allegation of a single act of abuse would have seemed incongruous and incredible. Showing an incestuous relationship was permissible, the court wrote, not to show defendant's general character or propensities, but "to establish specifically the defendant's propensity to engage in sexual conduct with his daughter as an object of his desire." Id. at 331. This language cuts close to the core prohibition of the rule, to prevent inferences on the basis of the defendant's characterological propensities. Forbes indicates that a propensity inference is acceptable if it is narrowly focused to the crime at issue.
State v. Winter, 162 Vt. 388 (1994), decided a few months later, signalled a change of direction, and attempted a rationalization of the prior caselaw. The defendant was charged with sexually assaulting a resident of a group home. At trial the state offered to prove that he had committed sexual assaults four years previously against another woman. Seeing similarities between the two incidents, the trial court allowed the evidence to show "motive" and "common scheme."
The Vermont Supreme Court reversed, making the following points:
Despite law review criticism of its handling of Rule 404(b) in sex offense cases, the court emphasized that the rule applies fully and equally to all types of prosecutions. If there is a sex offense "exception" to 404(b) it comes in cases (like State v. Forbes) of multiple incidents involving the same child victim, to show the "context." Forbes, the court noted, "is fully consistent with Rule 404(b), and it is applicable only when there are continuous acts with the same victim." 162 Vt. at 393 and n.1.
The prosecution has to point a real need for the
evidence. The prior crimes must be "related to the disputed elements in the case"; i.e., "to an element of the offense or the defense that is genuinely in issue." Id., at 393.
A prior crime offered to show "motive" requires proof that crime #2 was committed because of crime #1. Showing that the defendant acted to obtain sexual gratification the first time and therefore probably had the same motive the second time is no different from propensity evidence. Id., at 394-95.
Prior crimes evidence showing a "plan" (or "common
scheme") must be carefully restricted because it comes close to propensity evidence. There must be "similarity between the prior acts and the crime charged and proximity in time." The four years in this case was too long (though the same time in other contexts might not be). Id., at 395-96.
Similarities offered to show modus operandi (and therefore identity) must involve distinctive similarities, amounting to a "signature" crime. Id., at 398-99.
Even if the evidence were admissible under rule 404, its admission would be barred under the "highly discretionary" rule 403 prejudice/probative value balancing test. The state's need for the evidence is a major factor, but here the state had substantial other evidence of guilt. The fact that the prior alleged crime never resulted in conviction also weighs against admission: the state has to show "why an allegation that was found insufficiently credible for criminal prosecution at the time should not be considered credible to put before the jury." Id., at 401.
Cases following Forbes and Winter have focused on the distinction between prior crimes evidence involving the same victim, and that which involves other victims. See State v. Allocco, 162 Vt. 59 (1994) (judge properly allowed the defendant's admission of an uncharged sexual act involving the same complainant to show the nature of the relationship); State v. Perillo, 162 Vt. 566 (1994) (error, under rule 404(b) and State v. Winter, 162 Vt. 388 (1994), to admit evidence of a sexual touching of another minor, one month earlier, to show "common scheme or plan"); State v. Lawton, No. 93-098 (Vt. Sept. 1, 1995) (reversing conviction for sexual assault on defendant's three sons based on the improper admission of prior bad acts and improper prosecutorial comments). Cf. State v. Franklin, No. 94-176 (Vt. April 25, 1995) (unpub. mem.): The defendant was charged with threatening his wife over the phone. The wife testified to this and to a second threat shortly afterwards. The proof of the second threat was error - it didn't show "consciousness of guilt" as claimed - but harmless in the circumstances.
§ 31.08 Prior Crimes as Impeachment of Testimony: V.R.E. 609
n. 58:
See State v. Cartee, 161 Vt. 73 (1993), discussed in § 29.07, finding an abuse of discretion in refusing to allow impeachment not directed at the defendant.
§ 31.10 Character of the Defendant and Victim: V.R.E. 404-405
n. 75:
See State v. Verrinder, 161 Vt. 250 (1993): In a murder case the trial judge prevented the defense from calling a self-defense witness who would have testified that the victim assaulted the witness. The evidence would have been admissible under V.R.E. 404(a)(2) to show the victim's character for aggressiveness. But the defense didn't disclose the witness until after the discovery deadline, and in any case the evidence was "collateral" and could have confused the jury.
n. 79:
See also State v. Locke, No. 92-052 (Vt. April 1, 1993) (mem.): Defendant took the stand and testified during cross-examination that "in all my 42 years I have never hurt a human being, only in 'Nam," at which point the prosecutor impeached him with evidence of a prior aggravated sexual assault. A defendant's responses during cross examination do not generally open the door to specific instances of misconduct under V.R.E. 404(a)(1), but the defendant's response in this case "went well beyond the scope of the questioning...."
§ 31.11 Character of a Witness for Truthfulness: V.R.E. 608
n. 83:
In State v. Goodnow, No. 91-233 (Vt. May 27, 1994) the defendant in a rape case offered V.R.E. 608 evidence about complainant's character for truthfulness, from three witnesses. As to one witness an exclusion was sustainable on rule 403 grounds (the knowledge was stale). As to two other witnesses, defense counsel didn't press the issue to a definitive ruling and the claim was deemed waived.
n. 85:
But see State v. Diaz, No. 94-184 (Vt. Mar. 24, 1995) (mem.), apparently approving admission under V.R.E. 608(a) of a police officer's testimony that he did not believe statements of defendant's alleged accomplice.
§ 31.15 The "Helpfulness" Standard
p. 31-18, under Novel Scientific Evidence:
In Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 3787 (1993) the United States Supreme Court adopted a new standard for admission of novel scientific evidence. Rejecting the Frye test's insistence that the new technique be generally accepted in the scientific community as inconsistent with F.R.E. 702's liberal standards for admissibility, the court held that novel scientific evidence could be admitted on a showing of reliability and relevance. Id., at 2729. Reliability is established "if the expert testimony is supported by 'scientific knowledge,' defined as information that is grounded in the methods and procedures of science." State v. Streich, No. 91-335, slip op. 11 (Vt. Feb. 17, 1995), quoting Daubert, at 2795. In State v. Brooks, 162 Vt. 26, 30 (1994) the Vermont Supreme Court adopted the Daubert test in its application of Vermont's parallel rule, V.R.E. 702, in a case challenging the admissibility of the results of a DataMaster test -a new infrared breath analysis machine used in DUI cases. In State v. Streich, No. 91-335 (Vt. Feb. 17, 1995), the court applied Daubert in a DNA profiling case, upholding the admissibility of DNA matches, but disapproving the method (the "fixed bin" analysis) by which the chemist interpreted the statistical significance of the match, i.e., the probability that it was not merely coincidental. Given the current state of scientific knowledge the court insisted on a more conservative "ceiling principle" to quantify the probabilities of a DNA match. Slip op. 14.
§ 31.18 "Ultimate Issue" Testimony
n. 125:
See also In re T.P., No. 93-362 (Vt. Sept. 23, 1994) (mem.): An SRS worker testified at the TPR hearing that the mother would not be able resume parental duties within a reasonable time. This may have been the sort of "ultimate issue" testimony barred by Riess v. A.O. Smith Corp., 150 Vt. 527 (1988), but there was no objection at trial and little risk of prejudice.
§ 31.20 Child-Victim Hearsay: V.R.E. 804a
n. 135:
See also State v. Lawton, No. 93-098 (Vt. Sept. 1, 1995) (complainant was "available" for purposes of rule 804a even though he could only say that something happened to him with his father and he did not like to talk about it); In re C.K., Nos. 94-508 & 95-381 (Dec. 15, 1995) (removal of father from courtroom during child's testimony in CHINS case did not require exclusion of the child's hearsay statements under V.R.E. 804a on the ground that the child was not "available to testify in court").
n. 138.10:
See also State v. Lawton, No. 93-098 (Vt. Sept. 1, 1995) (statement to child's mother not in preparation for legal proceeding, although made soon after issuance of relief-from-abuse order); In re C.K., Nos. 94-508 & 95-381 (Dec. 15, 1995) (statements made by the child to pediatrician and nurse not "taken in preparation for a legal proceeding").
n. 139:
See also State v. Lawton, No. 93-098 (Vt. Sept. 1, 1995) (finding of trustworthiness not clearly erroneous).
§ 31.21 The Rape Shield Law
p. 31-25, under Prior False Allegations:
In State v. Leggett, No. 93-202 (Vt. June 28, 1995) (mem.) the court held that a police report in which the complainant alleged that she had been molested by another man in a separate incident but which was not prosecuted was not shown to be false for purposes of 13 V.S.A. § 3255(a)(3)(C). See also State v. Goodnow, No. 91-233 (Vt. May 27, 1994): The defendant in a sexual assault prosecution tried unsuccessfully to introduce evidence of the complainant's past false allegation of sexual harassment. This evidence was inadmissible under the shield law; it didn't come within the exception permitting proof of false allegations of rape.
p. 31-25, under Other Prior Conduct:
See State v. Wright, No. 93-547 (Vt. March 4, 1996) (mem.): A father convicted of sexually assaulting his son claimed that the trial court erred in excluding the son's sexual activity with others, offered to show knowledge sufficient to fabricate the charge and a motive to fabricate. The court rejected the first ground because the complainant was fourteen years old at the time of the trial and presumably would know about anal assault, and the second ground because the court saw no plausible connection between the past sexual conduct and a motive to fabricate.
§ 31.22 Syndrome Evidence
n. 166:
See also State v. Gomes, 162 Vt. 319 (1994) (expert testimony on credibility of child witnesses was sufficiently general, and didn't transcend the limits of Catsam; specific testimony that the children had good memories wasn't objected to, and wasn't plain error); State v. Leggett, No. 93-202 (Vt. June 28, 1995) (mem.) (expert testimony that children who are abused by a family member are more likely to delay reporting the incident than are children who are abused by strangers was proper). Compare State v. Diaz, No. 94-184 (Vt. March 24, 1995) ("Opinions of police officers that reflect on credibility, unlike those of psychologists and other mental health specialists, are not surrounded by a false aura of scientific reliability.")
§ 31.24 Objections, Offers of Proof, Motions to Strike
n. 176:
See State v. Raymond, No. 93-131 (Vt. Oct. 19, 1994) (mem.) (defendant's objection that statement of a four year old sexual assault complainant was "so vague" didn't preserve hearsay claim).
CHAPTER 32
BURDENS OF PROOF AND PRESUMPTIONS
§ 32.02 Defining Elements
n. 5:
See also State v. Davis, No. 95-090, slip op. 5-6 (Vt. June 21, 1996), discussed in § 32.05, infra.
p. 32-3, after n. 8:
Vermont's statutes punishing driving with a suspended license (DLS) create an interesting variant of this phenomenon. An ordinary DLS offense is defined as a civil offense, carrying minor penalties, prosecutable with a reduced standard of proof and minimal procedural safeguards. 23 V.S.A. §§ 676, 2302-06; Vt. Dist. Ct. Civ. R. 80.6. A third such offense, however, is a criminal misdemeanor carrying a maximum imprisonment of two years. 23 V.S.A. § 674(a),(b). If the prior offenses constitute elements of the enhanced offence, the statutes violate Winship's requirement that all elements of criminal liability be established by proof beyond a reasonable doubt. The argument was presented to the Vermont Supreme Court in State v. Reynolds, No. 94-198 (Vt. Jan. 8, 1996) (mem.), but not addressed.
§ 32.03 Defining Reasonable Doubt
n. 11:
See also State v. Kemph, No. 92-480 (Vt. April 2, 1993) (mem.) (jury instructions which sounded somewhat like those in State v. Giroux, 151 Vt. 361 (1989), and State v. Francis, 151 Vt. 296 (1989), were not erroneous); State v. Tinker, No. 93-055 (Vt. Sept. 29, 1994) (mem.) (jury instruction defining reasonable doubt as a doubt for which a juror can assign a reason if called on to do so should be avoided but doesn't warrant reversal); State v. Raymond, No. 93-131 (Vt. Oct. 19, 1994) (mem.) (unobjected to jury instruction that reasonable doubt is a "doubt for which you can assign a reason" not plain error). In Sullivan v. Louisiana, 113 S.Ct. 2078 (1993) the United States Supreme Court held that an instruction which defined reasonable doubt as a "substantial" doubt, a doubt that "would give rise to a grave uncertainty" and one that did not give the jury a "moral certainty" of guilt, violated due process (the charge was indistinguishable from the one given in Cage v. Louisiana, 498 U.S. 39 (1990)) and such a charge can never be harmless error. Cf. Victor v. Nebraska, 114 S.Ct. 1239 (1994) (reasonable doubt instructions which had some of the language condemned Sullivan ("moral certainty" and "substantial doubt") didn't violate due process when read as a whole).
§ 32.05 Affirmative Defenses
n. 20:
See State v. Davis, No. 95-090, slip op. 5-6 (Vt. June 21, 1996): In a kidnapping prosecution (13 V.S.A. § 2405) the legislature could make it an affirmative defense, reducing the penalty from life imprisonment to thirty years, that the defendant voluntarily released the victim before arraignment without causing serious injury. The statute does not unconstitutionally shift the burden of proof on an element of the crime.
n. 23:
These criteria come into play only when the statute is silent on the burden of proof and the constitution does not require that it be borne by the prosecution. See State v. Davis, No. 95-090, slip op. 6-7 (Vt. June 21, 1996).
§ 32.07 Permissive and Burden-Shifting Presumptions
n. 34:
See also State v. Hugo, 156 Vt. 339, 345-47 (1991), interpreting a DUI breath test inference as permissive and not burden-shifting, despite the fact that the judge also charged that "the defendant remains at liberty to introduce evidence" to show his sobriety.
§ 32.09 The Requirement of a Rational Connection
n. 50:
See also State v. Franklin, No. 94-450 (Vt. Jan. 8, 1996), holding that an inference authorized by the DUI law - that the jury could infer intoxication if the defendant's blood alcohol content was .10% or more within two hours of the alleged offense - was corroborated by direct evidence of the defendant's intoxication at the time of the offense and therefore met the "rational connection" test.
§ 32.10 Nonconstitutional Objections to Permissive Presumptions
p. 32-10, after n. 57:
Similarly, when the defendant offers a reason for his flight, the jury should not be steered exclusively towards an inference of consciousness of guilt. In State v. Perillo, 162 Vt. 566 (1994) the defendant didn't show up for a scheduled trial date and was arrested in Arkansas. The state argued that his flight showed consciousness of guilt. The defendant testified that he didn't flee to avoid prison, because he'd been offered a plea bargain which would have guaranteed him no jail time; he left to earn money to hire a lawyer so he wouldn't have to depend on the public defender. The judge told the jury to ignore the plea bargain, and the supreme court held this was error. The plea bargain was "critical" to rebut the consciousness-of-guilt inference. Cf. State v. Carter, No. 94-412 (Vt. Jan. 12, 1996) (error, but harmless, to preclude the defendant from offering evidence to explain his flight after the state had introduced flight evidence to prove consciousness of guilt).
§ 32.13 Motions for Judgement of Acquittal
n. 68:
A post-verdict motion for judgment of acquittal is sufficient to preserve the claim, even in the absence of a motion under Rule 29(a). State v. Brooks, No. 93-010, slip op. 9 (Vt. Jan. 27, 1995).
n. 69:
See also State v. Hatch, No. 94-209 (Vt. April 25, 1995) (mem.) (MJOA waived by failure to renew); State v. Bickford, No. 95-048 (Vt. March 7, 1996) (mem.) (same).
n. 75:
But see State v. Durenleau, No. 93-168 (Vt. Sept. 30, 1994) (granting judgment of acquittal in a murder case); State v. Kemp, 160 Vt. 647 (1993) (mem.) (acquittal on charge of aiding in a sexual assault).
p. 32-13, after "The rule may apply as well to other prior statements admitted as exceptions to the hearsay rule..."
See State v. Marcy, No. 94-173 (Vt. March 22, 1996): In a spousal assault case the court held that the "past recollection recorded" exception to the hearsay rule, V.R.E. 803(5) allowed admission of the wife's tape recorded statement, after she testified to a general lack of memory about the incident. The rule's requirement that the statement "reflect [the witness'] knowledge correctly" doesn't require the witness to vouch for its accuracy, and can be satisfied by other evidence supporting its reliability. The same corroborating facts defeated defendant's challenge to the sufficiency of the evidence: the circumstances surrounding the statement made it reliable enough to support a conviction. See also State v. Gawrys, No. 93-231 (Vt. April 1, 1994) (mem.), State v. Groff, No. 93-542 (Vt. Oct. 19, 1994) (mem.), and State v. West, No. 94-231 (Vt. Sept. 1, 1995), all holding "excited utterance" hearsay sufficiently reliable to convict of spousal assault).
p. 32-13, after "...the judge should grant an acquittal without submitting the case to the jury."
See State v. Weller, 162 Vt. 79 (1994): The rule "that extra-judicial confessions, alone and uncorroborated, are insufficient to establish the corpus delicti," is a rule for the judge but not the jury. If some evidence corroborates the confession the case goes to the jury, and the jury need not be instructed that it should acquit unless it finds sufficient corroboration.
p. 32-13, after last paragraph:
c. The Perjury Corroboration Rule<P> Special sufficiency rules also apply in prosecutions for perjury, which must "be proved by the testimony of two witnesses, or by the testimony of one witness with independent corroborating evidence." State v. Tinker, No. 95-126 (Vt. March 13 1996) (mem.). In Tinker the supreme court granted an acquittal because the state presented only one witness (a police officer) to the falsity of defendant's statements.
CHAPTER 33
CLOSING ARGUMENTS
§ 33.01 In General
n. 3:
See State v. Schooner, No. 92-095 (Vt. Jan. 27, 1993) (mem.) (claim that the defendant in judge-tried case has due process right to make oral closing argument raised for the first time on appeal; restricting parties to written arguments not plain error).
§ 33.03 Content of Closing
n. 6:
See also State v. Houle, 162 Vt. 41, 43-44 (1994) (prosecutor's argument that a dead hospital patient "would tell you just the same thing" as a witness in the case was "patently inappropriate" but not plain error).
n. 9:
See also State v. Davis, No. 95-090 (Vt. June 21, 1996) (defense counsel can point to absence of evidence but may not argue that it would have been exculpatory, or impugn the state's motives).
p. 33-3, after n. 12
When the defense is partly responsible for the absence of evidence comment on the prosecution's failure to establish certain facts may be unfair. In State v. Washington, No. 93-410 (Vt. Oct. 24, 1995) (mem.), the prosecution contended that a murder was motivated by defendant's involvement in a drug conspiracy, and at the defendant's request the judge told the prosecution to keep the drug evidence to a minimum. Given this limitation the Vermont Supreme Court held it was reasonable to forbid the defense from arguing that there was little evidence tying the defendant to the drug conspiracy.
§ 33.04 Impermissible Tactics
p. 33-3, before subsection b:
a1. Comment on Defendant's Failure to Prove Innocence<P> Although the defense can call attention to the lack of prosecution evidence (§ 33.03, supra), the prosecution does not have the same leeway with regard to the defense evidence, at least if it implies that the defendant bears a burden to prove his innocence. Cf. State v. Carter, No. 94-459 (Vt. Aug. 31, 1995) (mem.) (argument that jury was deprived of evidence because of defendant's refusal to take breath test not properly objected to); State v. Powers, No. 92-553 (Vt. Dec. 16, 1994) (it was a sufficient remedy for trial court to sustain objection and give a curative instruction when prosecutor asked defendant's wife, "Do you have any hard evidence to disprove [the charges against your husband]?").
n. 17:
See also State v. Martel, No. 94-225 (Vt. Dec. 22, 1995): The prosecutor's comment in closing that "from our own experience it's universal knowledge that there are people who remain involved with someone in an intimate relationship after physical abuse," though not supported by trial evidence, was not prejudicial enough to require a mistrial.
n. 23:
Compare State v. Wool, 162 Vt. 342, 354-5 (1994) (at voir dire prosecutor obliquely compared defendant to Ted Bundy).
n. 25:
But see State v. Lacourse, No. 94-210 (Vt. Oct. 19, 1994) (mem.), finding nothing wrong with a hard-hitting prosecution summation which called the defendant a liar and said he concocted his story, because these inferences were supported by the evidence.
§ 33.06 Duty to Object
p. 33-5, after n. 34:
As with evidentiary objections (§ 31.24), a failure to object on proper grounds will be considered a waiver. See State v. Philippon, No. 94-116 (Vt. Aug. 31, 1995) (mem.) (objection to prosecutor's comment on defendant's post-arrest silence on Miranda grounds did not preserve broader self-incrimination claim argued on appeal).
CHAPTER 34
JURY INSTRUCTIONS
§ 34.03 Objections to the Instructions
p. 34-3, after n. 6:
The court's opinions do not fully reflect the rigor with which it applies Rule 30's waiver rule. In State v. Covino, No. 91-231 (Vt. Dec. 2, 1994) the state charged that the defendant kidnapped the victim by forcible confinement. The trial judge instructed the jury that "force" could include "moral force," "misrepresentation" and "deception for an evil purpose." The judge drew these definitions from State v. Rivers, 84 Vt. 154 (1911), but the defendant in Rivers had been charged with kidnapping by "inveiglement" whereas Covino was charged only with kidnapping by force. Defense counsel objected at the proper time, at first seeming to acquiesce in some of the Rivers language ("I mean deceit maybe I can understand because you've got the Rivers decision"), but then making reasonably clear that he objected to all of it and that he wanted a dictionary definition of force: "I think it should be force, show of force or actual force. That should be the charge." Without quoting this latter portion of the colloquy the Vermont Supreme Court held that counsel had waived his objection.
§ 34.06 Boilerplate to Watch out for
p. 34-5, before first full paragraph:
For a discussion of other inference instructions based on a priori notions of human behavior (e.g., consciousness of guilt from flight) see § 32.10.
n. 18:
For a discussion of reasonable doubt instructions, see § 32.03.
§ 34.07 The Generic Charges
n. 26:
See § 4.12.
§ 34.08 Elements of Offenses
p. 34-7, after n. 32:
Entirely omitting an essential element of liability from the instructions has the same effect as directing a verdict on that element. See United States v. Gaudin, 115 S.Ct. 2310 (1995), holding that in a perjury prosecution the materiality of the false statement is an element of the offense - a mixed question of law and fact and not purely a legal issue for the judge - which must be submitted to the jury.
§ 34.10 Lesser-Included Offenses
n. 56:
See State v. Proper, No. 94-268 (Vt. Oct. 16, 1995) (mem.): The misdemeanor offense of "lewdness," 13 V.S.A. § 2632(a)(8), is not a lesser included offense of sexual assault on a minor, but is a lesser included offense of lewd and lascivious conduct, 13 V.S.A. §§ 2601-02.
n. 57:
The defendant is entitled to a charge on the lesser included offense even when the statute of limitations has run on the lesser offense. See State v. Delisle, 162 Vt. 293 (1994), discussed in § 13.04.
n. 58:
See also State v. Turgeon, No. 94-683 (Vt. March 8, 1996) (evidence did not warrant voluntary manslaughter instruction in murder prosecution).
p. 34-9, after n. 58:
In some jurisdictions the defense is entitled to an instruction on lesser related offenses - lesser crimes which the evidence supports but which do not count as lesser-includeds under the Blockberger test. In State v. Kelley, No. 93-612 (Vt. Feb. 17, 1995) the Vermont Supreme Court refused to consider an unpreserved claim that the defendant in a murder case was entitled to an instruction on the lesser-related offense of accessory after the fact.
§ 34.10a Defenses (new section)
The court's duty to charge "upon each point indicated by the evidence, material to the decision of the case," State v. Drown, 148 Vt. 311, 312-13 (1987); see § 34.04, supra, includes a duty to instruct on defenses fairly raised by the evidence, such as alibi, self-defense, and diminished capacity. See State v. Nunez, 162 Vt. 615 (1994) (mem.) (with no evidence besides the defendant's broken eyeglasses to support a self-defense theory no error to refuse to give instruction); State v. Duford, No. 94-083 (Vt. Mar. 30, 1995) (mem.) (evidence of defendant's mental retardation insufficient to require instruction on diminished capacity).
§ 34.10b Issues Not for the Jury's Consideration (new section)
The caselaw holds that certain issues should not be submitted to the jury.
Questions of law. In theory, questions of law are for the judge to decide and questions of fact for the jury. The difficulty comes in separating fact from law. See United States v. Gaudin, 115 S.Ct. 2310 (1995) (materiality of false statement a mixed question for jury); State v. Weller, 162 Vt. 79, 82-83 (1994) (trial court should not instruct jury on corpus delicti rule).
Consequences of the verdict. Caselaw holds that the jury
should generally not be told about the consequences of possible verdicts, e.g., the penalties which could be imposed upon a guilty verdict, or the hospitalization issues which arise on a finding of not guilty by reason of insanity. See Simmons v. South Carolina, 114 S.Ct. 2187 (1994) (in a case where the prosecutor argued that the defendant's dangerousness warranted the death penalty, the defendant had a right to have the jury told that a life sentence would leave him ineligible for parole); Shannon v. United States, 114 S.Ct. 2419 (1994) (juries ordinarily shouldn't be told that a not-guilty-by-reason-of-insanity verdict will result in involuntary hospitalization); State v. DeLisle, 162 Vt. 293, 303 (1994) (knowledge concerning punishment ordinarily can't aid jury); State v. Smith, 136 Vt. 520, 526 (1978) (consequences of insanity acquittal).
CHAPTER 35
JURY INTEGRITY AND THE RETURN
OF THE VERDICT
§ 35.01 Irregularities - Extraneous Influences on the Jury
p. 35-2, after last sentence:
Compare State v. Wool, 162 Vt. 342, 352-53 (1994): During a mid-trial conversation a juror said she was afraid of going to downtown Burlington because the streets were not safe, and another person, possibly not a juror, said, "He had to be under the influence of something." The court held that the incident did not warrant a new trial; the statements were ambiguous and had no capacity to prejudice the verdict. See also State v. Streich, No. 91-335, slip op. 22 (Vt. Feb. 17, 1995) (trial judge's inaccurate explanation of reason for media presence did not carry potential for prejudice).
§ 35.02 Nonextraneous Influences
p. 35-3, after first paragraph:
See State v. Meacham, No. 93-614 (Vt. June 28, 1995) (mem.): After the jury delivered a guilty verdict in an arson case, a juror handed the court a list of questions directed to the state's attorney asking why the state hadn't called certain witnesses. The defense argued that these questions showed that the jury had not found the defendant guilty beyond a reasonable doubt. The court affirmed the trial court's refusal to permit juror interviews, absent any evidence of external influences. See also State v. Carpenter, No. 94-346 (Vt. Jan. 31, 1995) (mem.) (V.R.E. 606(b) prevented inquiry into allegedly improper considerations during jury deliberations, such as jurors' observance of V.R.E. 404(b) or their application of the reasonable doubt standard); State v. Hudson, No. 92-628 (Vt. Feb. 17, 1995) (judge refused to consider two jurors' affidavits in support of motion for new trial because they included facts about the process of deliberations; allegations of extraneous influences on the verdict, including exposure to an unidentified news account, weren't enough to require a hearing).
The language of Rule 606(b) bars a juror's testimony of intra-jury dynamics whether it is offered to impeach the verdict or to rehabilitate it. But see State v. St. Pierre, No. 94-491 (Vt. Sep. 28, 1995) (mem.): One juror and one alternate saw the defendant in handcuffs and shackles. This came to light after the verdict and the defense moved for a new trial; the state responded with affidavits of the jurors saying that the encounter played no role in their deliberations. The Vermont Supreme Court affirmed the denial of the motion for new trial, without reference to V.R.E. 606(b), on the ground that the state had shown an absence of prejudice.
§ 35.03 Separation of Jury Before Verdict
p. 35-3, replacing first sentence:
If the court orders sequestration the jury must be kept together until the verdict. V.R.Cr.P. 23(d). In all cases the jury must be kept together once the court "has committed a cause to its consideration...." 12 V.S.A. § 1943; State v. Allocco, 162 Vt. 59, 62 (1994).
n. 17:
See State v. Allocco, 162 Vt. 59 (1994): Two hours into jury deliberations in a sex assault case one of the jurors started going into insulin shock and the judge allowed the jury to separate and return the next morning. The Vermont Supreme Court held that defense counsel's lack of an objection was the equivalent of consent; and that the defense failed to show how it was prejudiced by the court's failure to give cautionary instructions before allowing separation.
§ 35.04 Procedure
n. 20:
Compare State v. Fitzgerald, No. 94-650 (Vt. July 5, 1996) (after questioning alternate juror who had been accused of misconduct, and asking jury if any extraneous information had come to its attention, the judge lacked any basis to suspect jury prejudice and thus had no duty to conduct individual voir dire); State v. Martel, No. 94-225 (Vt. Dec. 22, 1995) (discovery in jury room of newspaper containing potentially prejudicial article about the trial did not require new trial after trial judge questioned jurors and concluded that none knew about the article).
CHAPTER 36
PLEAS OF GUILTY
AND NOLO CONTENDERE
§ 36.01 Types of Pleas - Guilty and Nolo Pleas
n. 11:
In State v. Fisk, No. 93-545 (Vt. May 10, 1996) the Vermont Supreme Court drew a subtle but significant distinction between nolo pleas and "Alford" pleas. The defendant who enters an Alford plea couples her waiver of trial rights with an express denial of factual guilt, see North Carolina v. Alford, 400 U.S. 25, 37 (1970), while the defendant who pleads nolo may simply stand mute on the question of factual guilt. "[T]here is a fundamental inconsistency between an Alford plea and a probation condition that requires an admission of guilt. That inconsistency does not exist when the plea is not premised on Alford." Fisk, slip op. 6.
n. 12:
See also State v. Delisle, 162 Vt. 293, 300 (1994) (judge has discretion to reject plea agreement he thinks is too lenient).
§ 36.03 Plea Bargaining
p. 36-4, after n. 21:
Statements made in the course of plea negotiations are generally inadmissible against the defendant. V.R.Cr.P. 11(e)(5); V.R.E. 410; State v. Bean, No. 94-138 (Vt. Mar. 31, 1995). The rules cover withdrawn guilty pleas, nolo contendere pleas, and "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn." V.R.E. 410(4). In United States v. Mezzanatto, 115 S.Ct. 1671 (1995) the United States Supreme Court held that the prosecutor could insist on a partial waiver of the confidentiality rule (to the extent of allowing such statements as impeachment if the defendant testifies) as a precondition to entering into plea discussions.
§ 36.06 Acceptance and Rejection of Plea Agreements
p. 36-7, after n. 42:
In State v. Delisle, 162 Vt. 293, 298-300 (1994) the Vermont Supreme Court held that a trial judge who equivocally approved a plea agreement and entered of judgment of guilt, could later back off from his approval. The court characterized the judge's remarks as a "deferral" rather than an "acceptance" under the rule.
n. 44:
A judge who imposes a higher sentence than called for in the plea agreement can later amend the sentence to bring it in line with the agreement, and if she does so the defendant does not have a right to withdraw the plea. State v. Fisher, No. 90-136 (Vt. Oct. 9, 1992) (mem.).
§ 36.07 Broken and "Illusory" Plea Agreements
n. 52:
See also In re Hunt, No. 93-397 (Vt. Jan. 27, 1995) ("when a plea agreement is withdrawn or rejected, and the defendant then ... pleads not guilty and receives a fair trial, that defendant has not been deprived of his liberty in any fundamentally unfair way.")
§ 36.09 Remedies
n. 78:
See State v. Turgeon, 161 Vt. 561 (1993) (mem.): The defendant entered into plea bargains with state and federal authorities. The intent of the parties to the state plea agreement was that the state sentences would run concurrently with the federal sentence, but after sentencing in state court defendant received a federal sentence that made his aggregate sentence ten years longer than contemplated by the state plea agreement. The Vermont Supreme Court held that while the state trial judge lacked the power to order that the federal sentence be served concurrently with the state sentence, the defendant should be granted leave to withdraw his state court guilty pleas.
§ 36.11 Advice of Rights
n. 96:
See also State v. Fisk, No. 93-545, slip op. 6 (Vt. May 10, 1996) (no duty to advise defendant he would have to admit guilt in probationary therapy program).
p. 36-14, after n. 96:
The judge also does not have to inform the defendant about possible recidivist consequences in the event of a future conviction for the same offense. State v. Pilette, 160 Vt. 509 (1993) (no duty to inform second-offense DUI defense that third offense is a felony).
§ 36.14 Review
p. 36-16, after first sentence:
In State v. Thompson, 162 Vt. 532, 534 (1994), the Vermont Supreme Court held, in a direct appeal from a nolo plea conviction, that it would review violations of the Rule 11(c) colloquy requirements only for "plain error" in the absence of an objection by defense counsel. The more appropriate route for such challenges, the court wrote, is a motion to withdraw the plea in the district court, or a petition for post-conviction relief in superior court. See also State v. Ploof, 162 Vt. 560, 562-63 (1994). These holdings represent a major departure from practice under the parallel federal rule, and from the Vermont court's treatment of other waiver colloquies. See, e.g., State v. West, No. 94-231, slip op. 10 (Vt. Sept. 1, 1995) (strict compliance with V.R.Cr.P. 23(a)'s jury waiver colloquy).
p. 36-17, after last sentence:
The decisions in Thompson and Ploof - coupled with the court's decisions regarding collateral challenges to Rule 11 violations, and the unavailability of Rule 32(d) motions to defendants in custody - have essentially insulated Rule 11 (or at least Rule 11(c)) from any review at all, except in cases where the defendant can show a fundamental miscarriage of justice.
CHAPTER 37
SENTENCING
§ 37.01 In General
p. 37-2, before last sentence on page:
The constitution does impose limits in special categories of cases. The double jeopardy clause bars multiple punishments for the same offense. See § 14.05, et seq. Fourteenth amendment due process imposes some restrictions on a judge's power to sentence a defendant more harshly after an appellate reversal and retrial. See § 14.08. And sentence enhancements for "hate crimes" have been challenged, mostly unsuccessfully, on first amendment grounds. See § 16.02.
§ 37.11 Challenging Allegations
n. 45:
But see State v. Pellerin, No. 94-388 (Vt. Oct. 27, 1995) (testimony at sentencing by victim of a previous sexual assault was admissible, even though defense counsel didn't receive notice under V.R.Cr.P. 32(c)(3), because he should have known to expect it).
§ 37.12 Proof of Other Criminal Conduct
n. 47:
The requirement applies only when the defendant disputes factual allegations, and a court does not have to justify its bottom-line sentencing decision by a statement of findings. State v. Daley, 161 Vt. 588, 591 (1993).
§ 37.13 Proof of Prior Convictions
n. 61:
See State v. Callahan, No. 94-402 (Vt. March 7, 1996) (mem.): At the recidivist phase of a DUI case the state presented sufficient proof of the defendant's prior convictions when it introduced DDRs of two cases showing that a man by the same name, born in 1964, had been convicted of DUI. The identity of names, plus the fact that the defendant appeared to be thirty years old, was enough to get the issue to the jury.
n. 63:
Baldasar was overruled in Nichols v. United States, 114 S.Ct. 1921 (1994), and the Vermont Supreme Court followed and applied Nichols in a series of recidivist DUI and DLS cases, State v. Porter, No. 94-215 (Vt. Jan. 5, 1996); State v. Brown, No. 94-277 (Vt. March 22, 1996); State v. Reynolds, No. 94-198 (Vt. Jan. 8, 1996) (mem.) and State v. Moffitt, No. 94-242 (Vt. Jan. 8, 1996) (mem.). See § 6.04.
n. 64:
In Custis v. United States, 114 S.Ct. 1732 (1994), the United States Supreme Court limited such challenges to right-to-counsel violations. Denial of counsel in a prior case is "jurisdictional" whereas other defects (e.g., Boykin v. Alabama violations) aren't: states are not constitutionally required to allow defendants to challenge the prior convictions on non-right-to-counsel grounds at the recidivist sentencing. See generally § 6.04
n. 66:
See State v. Brown, No. 94-277 (Vt. March 22, 1996) (defendants failed to carry burden of showing right-to-counsel violation); State v. Thorpe, No. 92-469 (Vt. Aug. 31, 1995) (mem.) (in a recidivist DUI prosecution DDRs from the prior cases made out a sufficient prima facie showing that the pleas were valid); State v. Tatro, 161 Vt. 182 (1993) (same).
§ 37.13a Sentencing in Murder Cases (new section)
13 V.S.A. § 2303 sets up a special sentencing procedure in first and second degree murder cases. The maximum punishment for both crimes is life imprisonment, and the presumptive minimums are 35 years for first degree and 20 years for second degree. 13 V.S.A. § 2303(a),(b). These minimums can be raised or lowered depending on the court's weighing of aggravating and mitigating factors, enumerated in § 2303(d) and (e). The court must state its findings in writing, but these "findings" need be nothing more than conclusions. 13 V.S.A. § 2303(c); State v. Verrinder, 161 Vt. 250, 269 (1993). But see State v. Allain, No. 94-164 (Vt. July 19, 1995) (mem.) (entering findings orally on the record harmless error). If the aggravating and mitigating factors balance the court lacks discretion to depart from the presumptive minimum. Verrinder, 161 Vt. at 270.
The scheme bears a superficial resemblance to capital punishment statutes but the limits it places on the trial judge's sentencing discretion are minimal. The judge "may" alter the presumptive minimum based on a weighing of aggravating and mitigating factors but the statute makes nothing mandatory; nothing directs how the weighing process is to be conducted; and the lists of aggravating and mitigating factors both include catchall "any other factor" categories. § 2303(d)(8),(e)(7); see State v. Verrinder, 161 Vt. 250, 269 (1993).
In State v. Kelley, No. 93-612 (Vt. Feb. 17, 1995) and State v. Allain, No. 94-164 (Vt. July 19, 1995) (mem.) the court affirmed findings that the victim was "particularly vulnerable" (§ 2303(d)(4)); in State v. Washington, No. 93-410 (Vt. Oct. 24, 1995) (mem.) it upheld a finding that the murder was "predatory...in nature" (§ 2303(d)(7)), and in Allain that the murder was particularly brutal or cruel (§ 2303(d)(5)).
§ 37.15 The Judge's Sentencing Options
p. 37-13, after n. 73:
When a statutory amendment reduces the penalty for a crime the reduction should be applied retroactively. 1 V.S.A. § 214(c); State v. Flagg, 160 Vt. 141 (1993).
§ 37.18 Sentence Computations
p. 37-16, under Good Time Credits:
In 1994 the legislature reduced the presumptive good time award from ten days a month to five days a month. 28 V.S.A. § 811(a), as amended 1993, No. 173 (Vt. Adj. Sess.), § 1. An additional ten days a month (called "meritorious good time") may be awarded for participation in recommended programming. 28 V.S.A. § 811(b). The law took effect July 1, 1994, and to avoid ex post facto problems it applies only to sentences for crimes committed on or after that date. See Weaver v. Graham, 450 U.S. 24 (1981).
p. 37-17, under Calculating Release Dates:
For calculations of post-July 1, 1994 sentences, which are reduced by a good time allowance of only five days per month, divide the sentence (in days) by 35 instead of 40. In the case of our hypothetical sentence of one year, six months, the result is 470 days, as compared with 415 days under the old law.
§ 37.23 Discretionary Sentence Reductions
n. 134:
See also State v. Smith, No. 92-185 (Vt. Feb. 24, 1993) (mem.) (sentence reconsideration motion can be denied without a hearing).
n. 135:
But see State v. Ladabouche, No. 93-082 (Vt. Aug. 19, 1994) (mem.) (motion for sentence reconsideration based on claim of innocence was really an untimely motion for new trial in disguise).
n. 136:
See also State v. Provoncha, No. 93-278 (Vt. Feb. 23, 1994) (mem.) (sentence reconsideration limited by circumstances as of original sentencing); State v. Searles, No. 93-376 (Vt. June 1, 1994) (mem.) (same); State v. Richardson, 161 Vt. 613 (1994) (mem.) (same; the rule also applies to murder cases despite the language of 13 V.S.A. § 2303(e)(7) which includes among mitigating factors "any other factor that the defendant offers....").
p. 37-22, after first sentence under Postappeal Reconsideration Motions:
The right attaches after affirmance on direct appeal; there is no right to sentence reconsideration within ninety days of losing a PCR in the supreme court. State v. Bristol, No. 93-258 (Vt. Oct. 19, 1994) (mem.). The ninety day limit can not be avoided by stipulation. State v. Gabert, No. 92-658 (Vt. Dec. 21, 1993) (mem.) (motion filed long after an unsuccessful appeal but with state's agreement, in exchange for dismissal of a PCR petition, didn't bind court).
CHAPTER 38
PROBATION AND PROBATION REVOCATION
§ 38.01 Suspended Sentences
p. 38-2, after n. 1:
A suspended sentence is a sentence of imprisonment for right-to-counsel purposes. State v. DeRosa, 161 Vt. 78 (1993); see § 6.02.
§ 38.03 Deferred Sentences
n. 5:
The requirement of prosecutorial approval does not violate the state constitutional separation-of-powers clause, ch. II, § 5. State v. Pierce, No. 93-328 (Vt. Jan. 20, 1995).
§ 38.05 Standard Conditions
p. 38-4, in connection with condition 5:
In State v. Locke, No. 94-329 (Vt. Feb. 24, 1995) (mem.) the court rejected the defendant's claim that he did not fail to report a change of address since, after leaving the apartment where he had been living, he became homeless and had no new address to report.
§ 38.06 Substantive Limitations on Probation Conditions
p. 38-7, after n. 32:
But see State v. Lockwood, 160 Vt. 547, 552-53 (1993), holding that the alleged inability of a mentally retarded probationer to comply with conditions was no defense to revocation. "The purpose of a revocation hearing is not to determine defendant's culpability, but rather to decide 'whether the alternatives to incarceration which have been made available to a defendant remain viable for him.'" 160 Vt. at 552, quoting People ex rel. Gallagher v. District Court, 591 P.2d 1015, 1017 (Col. 1978) (en banc). See also State v. Degree, No. 92-223 (Vt. Feb. 24, 1993) (mem.): The defendant was on probation for DUI and DLS, with conditions that he not drink or drive until he got his license reinstated. He learned that his wife was having an affair, got drunk, and tried to kill himself. At the revocation hearing, a psychiatrist testified that the defendant lacked the ability to conform his conduct to the requirements of the law. The supreme court nevertheless affirmed. Inability to conform one's conduct to the requirements of a probation order isn't a defense to revocation, at least if the defendant's conduct constitutes a threat to the public.
n. 36:
See State v. Fitzgerald, No. 92-214 (Vt. May 28, 1993) (mem.): Requiring a probationer to admit that he tickled children's bellies wasn't a case of compulsory self-incrimination (a) because the admission could not expose him to criminal liability, and (b) because a probationer "cannot invoke the privilege to shield himself from being found in violation of probation based on his failure to discuss conduct relevant to his probation conditions."
n. 37:
Also rejecting self-incrimination claims stemming from "denial" or "minimization" in probationary therapy programs, see State v. Masse, No. 94-660 (Vt. Dec. 22, 1995) (mem.); State v. Rickert, No. 94-187 (Vt. Aug. 26, 1995) (mem.); State v. Boisvine, No. 93-346 (Vt. July 29, 1994) (mem.); State v. Merchant, No. 91-583 (Vt. Jan. 6, 1993) (mem.); State v. Fitzgerald, No. 92-214 (Vt. May 28, 1993) (mem.). For a criticism of these holdings, see W. Nelson, The New Inquisition, __ Vt. L. Rev. __ (1996).
n. 40:
In State v. Lockwood, 160 Vt. 547 (1993), the court upheld a broadly permissive search condition, distinguishing its holding in Moses. Authorizations to search a probationer's home must usually be "narrowly tailored" so as to "provide guidance to probation officers" but that kind of specificity wasn't necessary in this case, because the defendant's mental retardation and sexual deviancy created "more than an average risk" of violation. The sentencing court's expressed concerns provided sufficient guidance. Although the warrant purported to allow searches without reasonable suspicion, this flaw also didn't spoil the search because the decision to search was in fact based on reasonable suspicion. In a puzzling footnote the court says that Vermont's standard for probable cause "resembles the reasonable grounds test" of Griffin. 160 Vt. at 556 n.4, citing State v. Towne, 158 Vt. 607, 613-16 (1992).
n. 41:
See also State v. Lockwood, 160 Vt. 547, 560 (1993) (order prohibiting probationer from possessing photographs of children).
p. 38-9, after last sentence:
g. Privacy and Familial Rights<P> In domestic abuse cases probation conditions commonly limit or prohibit outright contact between the defendant and his or her children. In other contexts such orders must be justified by more than a mere preponderance of evidence, see Mullen v. Phelps, 162 Vt. 250, 262, 267 (1994), and it is therefore arguable that the normal preponderance standard for probation violation proceedings can not support a no-contact-with-children order. Cf. State v. Franklin, No. 94-176 (Vt. April 25, 1995) (mem.) (bypassing this issue on a finding that VAPO order merely duplicated unchallenged no-contact order in divorce proceeding).
Similarly, requiring a probationer take psychotropic medication may also be subject to the normal safeguards attending involuntary medication orders. Cf. State v. Goodrich, No. 94-071 (Vt. Mar. 24, 1995) (mem.) (refusal to take medication was only "last straw" and not true basis for revocation).
§ 38.09 Restitution
n. 58:
Restitution requires a victim, but assault by "mutual consent" is not necessarily a victimless crime, and the defendant could be ordered to compensate the person who got the worst of the fight. State v. Shattuck, No. 92-555 (Vt. Dec. 21, 1993) (mem.)
§ 38.10 Material Loss
n. 61:
See State v. Belloir, No. 95-464 (Vt. March 7, 1996) (mem.), awarding restitution for lost hourly wages.
§ 38.13 Defendant's Ability to Pay
n. 68, erratum:
Citation should be State v. Godfrey, 131 Vt. 629 (1973).
§ 38.17 The Violation Hearing
n. 97:
Rule 32.1 states the probationer's full right of discovery; Rule 16 does not apply to probation revocation proceedings. State v. Gedutis, No. 93-216 (Vt. Oct. 12, 1994) (mem.)
n. 105:
See State v. Hamilton, No. 92-357 (Vt. April 21, 1993) (mem.) (probationer's noncompliance with a therapy requirement sufficiently proven by non-hearsay evidence); State v. Pennington, 162 Vt. 621 (1994) (mem.) (enough non-hearsay to prove violation of reporting and address-notification requirements). Compare State v. Gedutis, No. 93-216 (Vt. Oct. 12, 1994) (Dooley and Johnson, JJ., dissenting) (arguing hearsay evidence of defendant's telephone threats to wife may have violated Finch).
n. 108, erratum:
Citation should be State v. Allen, 145 Vt. 593, 597-98 (1986).
p. 38-17, after n. 108:
When the revocation complaint is based on discretionary action by the probation officer (such as the defendant's alleged failure to complete a therapy program to the probation officer's satisfaction), the court is not required to inquire into the motivating factors behind the probation officer's decision. State v. Masse, No. 94-660 (Vt. Dec. 22, 1995) (mem.).
n. 110:
Cf. State v. Brow, No. 95-022 (Vt. Sep. 28, 1995) (mem.) (state put on insufficient evidence show that defendant refused order to go into residential alcohol treatment).
n. 115:
See State v. Lockwood, 160 Vt. 547 (1993), discussed in §§ 8.01-8.03.
§ 38.18 The Disposition Hearing
n. 120:
See State v. Kiefer, No. 92-046 (Vt. Dec. 18, 1992) (mem.) (revocation must be based on one or more of the criteria set forth in 28 V.S.A. § 303(b) but the judge doesn't have to identify which, so long as the evidence supports at least one).
CHAPTER 39
PAROLE AND PAROLE REVOCATION
§ 39.06 Parole Revocation
n. 27:
Compare Conway v. Cumming, 161 Vt. 113 (1993), in which the Vermont Supreme Court held that a prisoner whose furlough status was revoked for unspecified "negative behavior" had no protected liberty interest in his status, and therefore no right to a hearing.
§ 39.08 The Merits Hearing
n. 40:
In Relation v. Vermont Parole Board, No. 94-163 (Vt. April 14, 1995) the court held that the proof in parole revocation proceedings must be by a preponderance of the evidence, not the statutory (and apparently more lenient) "substantial evidence" standard.
CHAPTER 40
APPEALS
§ 40.03 Notice of Appeal
p. 40-3, after n. 11:
A notice of appeal is not required in cases resulting in life imprisonment. Appeals in such cases are automatic unless the defendant waives the right to appeal in writing. V.R.A.P. 3(b). The trial court must determine by an appropriate colloquy that the decision to forgo an appeal has been knowingly and intelligently made. State v. Currier, No. 94-097 (Vt. Sept. 6, 1994) (mem.).
§ 40.17 Transcripts and Transcript Substitutes
n. 99:
See State v. Sage, 161 Vt. 633 (1994) (mem.) (denying motion for summary reversal when state lost one day of three day trial, and remanding for fact-finding).
CHAPTER 41
POSTCONVICTION REMEDIES
IN SUPERIOR COURT
§ 41.01 Postconviction Relief Petitions
p. 41-2, after n. 4:
There are also no limits on the number of PCR petitions which a prisoner can file, except that a successive petition may be dismissed if "it raises the same issue that was determined adversely on the merits in an earlier petition, and the ends of justice would not be served by reaching the merits of the later petition." In re Towne, No. 94-105, slip op. 2 (Vt. April 25, 1995), citing Sanders v. United States, 373 U.S. 1, 15 (1963).
Despite the Vermont Supreme Court's reliance on federal law in its interpretation of the PCR statutes, Vermont caselaw has so far not reflected the caselaw and statutory restrictions drastically limiting the availability and scope of federal habeas corpus. Thus, the time limits on federal habeas petitions, see 28 U.S.C. § 2244(d); the limitation on the grounds for relief to matters of established law, Teague v. Lane, 489 U.S. 288 (1989); and the rule requiring that all claims be raised in a single petition, McCleskey v. Zant, 499 U.S. 467 (1991), 28 U.S.C. § 2244(b), find no counterparts in Vermont's PCR practice.
§ 41.02 The "In Custody Under Sentence" Requirement
n. 9:
See Garlotte v. Fordice, 115 S.Ct. 1948 (1995) (federal prisoner "in custody" for purpose of federal habeas statute if he is serving sentence which runs consecutively to challenged sentence).
§ 41.05 Habeas Corpus - Availability
n. 40:
See In re Dodge, No. 92-501 (Vt. Dec. 22, 1992) (mem.) (defendant can not challenge denial of Rule 48(b) motion to dismiss by habeas; he should have moved for interlocutory appeal).
n. 42:
See also E.J.R. v. Young, Nos. 93-061 & 93-104 (May 20, 1994) (habeas can be used to challenge CHINS proceeding only for jurisdictional errors).
CHAPTER 42
POSTTRIAL MOTIONS IN DISTRICT COURT
§ 42.04 Two Year Motions
p. 42-4, erratum:
After "due diligence;" in the first indented quote, insert "(4) the evidence is material".
n. 24:
See also State v. Wool, No. 93-506 (Vt. Aug. 19, 1994) (mem.) (new evidence of state chemist's drug use wouldn't have changed result); State v. Sharby, No. 94-611 (Vt. Sept. 28, 1995) (mem.) (new evidence wouldn't have changed result); State v. Highter, No. 94-389 (Vt. May 20, 1995) (mem.) (same).
p. 42-4, after n. 25:
See State v. Olsen, No. 95-119 (Vt. May 10, 1996): Defense counsel moved for a new trial in a murder case, alleging in an affidavit that the victim's sister told him that a daycare provider had kicked the victim in the stomach on the day of her death, and then threatened the sister to prevent her testifying. The lawyer conceded he knew about this allegation before trial, but said that the sister had been "terrified of testifying." The court holds that the evidence was not "newly discovered," besides which the attorney's hearsay affidavit wasn't good enough. Id., slip op. 4-5.
n. 26:
See also State v. Gilman, No. 93-595 (Vt. Oct. 27, 1994) (mem.), rejecting a motion for new trial on the basis of recanted testimony).
§ 42.08 Motions To Withdraw a Guilty Plea
n. 40:
But see State v. Fisk, No. 93-545 (Vt. May 10, 1996): Before sentencing in a sex offense case defendant moved to withdraw his nolo plea, contending that he was not aware at the time he entered the plea that he would have to admit his guilt as part of a probationary therapy program. The judge denied the motion and the Vermont Supreme Court affirmed, holding that the defendant failed to show that his subjective misunderstanding was objectively "reasonable." A dissenting opinion characterized this holding as "the death knell for the doctrine that the court's discretion must be exercised liberally in favor of withdrawal" in pre-sentence cases. Id., slip op. 16 (Dooley, J., dissenting).
APPENDIX 18
TABLE OF CRIMES AND PENALTIES
13 V.S.A. § 11: Sentences under the habitual criminal act may be for any term "up to and including life."
13 V.S.A. § 11a: State may seek a "substitute penalty" of "imprisonment up to and including life" for defendants previously convicted of two enumerated felonies.
13 V.S.A. § 1028: Mandatory minimum penalties repealed.
13 V.S.A. § 2602: Penalties for lewd and lascivious conduct with a child are 1-5 years and/or $3,000 for a first offense; 2-10 years and/or $5,000 for a second offense; 3-20 years and/or $10,000 for a third or subsequent offense.
13 V.S.A. § 2307: Repealed.
13 V.S.A. § 3002: Offense renamed "Impersonation of officer"; punishable by 6 months or $500 for first offense, 2 years or $1,000 for subsequent offenses.
13 V.S.A. § 3017: "Resisting arrest"; punishable by 1 year or $500 for first offense, 2 years or $1,000 for subsequent offenses.13 V.S.A. § 3018: "Hindering arrest"; punishable by 1 year or $500 for first offense, 2 years or $1,000 for subsequent offenses.23 V.S.A. § 674(a) & (b): Mandatory minimum sentences restricted to DLS offenses after suspension for a DUI conviction.
23 V.S.A. § 1091(a): Careless and negligent operation sentences increased to 1 year and/or $1,000 fine for a first offense, 2 years and/or $3,000 for subsequent offenses.
23 V.S.A. § 1091(b): Offense renamed "Grossly negligent operation"; punishable by 2 years and/or $5,000 for a first offense, 4 years and/or $10,000 for subsequent offenses, 15 years and/or $15,000 if death or serious bodily injury results.
TABLE OF CASES
Arizona v. Evans, 115 S.Ct. 1185 (1995) . . . . . . . 5
Arizona v. Youngblood, 488 U.S. 1 (1988). . . . . . .67
Baldassar v. Illinois, 446 U.S. 222 (1980). . . . . .26
Barker v. Wingo, 407 U.S. 514 (1970). . . . . . . . .51
Batson v. Kentucky, 476 U.S. 79 (1986). . . . . . . .72
Bell v. Melsur Corp., 161 Vt. 35 (1993) . . . . .60, 61
Blackmer v. Gorczyk, F5:93-CV-238 (Oct. 20, 1993). . . . . . . . . . . . . . . . . . . . . . . . . .37, 38
Bradshaw v. Joseph, No. 94-667 (Vt. Aug. 25, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .29
Cage v. Louisiana, 498 U.S. 39 (1990) . . . . . . . .89
California v. Greenwood, 486 U.S. 35 (1988) . . . . . 9
Cardinal v. Gorczyk, No. 5:94-cv-200 (D. Vt. March 16, 1995). . . . . . . . . . . . . . . . . . . . .70
Cardinal v. Gorczyk, No. 95-2206 (2d Cir., April 3, 1996) . . . . . . . . . . . . . . . . . . . . . . .70
Choiniere v. Brooks, No. 94-653 (Vt. Mar. 24, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .27
Conway v. Cumming, 161 Vt. 113 (1993) . . . . . .1, 111
Cooper v. Oklahoma, 116 S.Ct. 1373 (1996) . . . . . .44
Counselman v. Hitchcock, 142 U.S. 547 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Custis v. United States, 114 S.Ct. 1732 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 26, 104
Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct.
3787 (1993). . . . . . . . . . . . . . . . . . . . . . .85, 88
Davis v. Alaska, 415 U.S. 308 (1974). . . . . . . . .75
Davis v. United States, 114 S.Ct. 2350 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Delaware v. Fensterer, 474 U.S. 308 (1974). . . . . .75
Delaware v. Van Arsdall, 474 U.S. 15 (1986) . . . . .75
Doyle v. Ohio, 426 U.S. 610 (1976). . . . . . . . . .14
E.J.R. v. Young, Nos. 93-061 & 93-104 (May 20, 1994). . . . . . . . . . . . . . . . . . . . . . . . . 113
Edwards v. Arizona, 451 U.S. 477 (1981) . . . . . . .18
El Vocero de Puerto Rico v. Puerto Rico, 113 S.Ct. 2928 (1993). . . . . . . . . . . . . . . . . . . .65
Fletcher v. Gorczyk, 159 Vt. 631 (1992) . . . . . . .26
Garlotte v. Fordice, 115 S.Ct. 1948 (1995). . . . . 113
Godinez v. Moran, 113 S.Ct. 2680 (1993) . . . . . . .30
Heck v. Humphrey, 114 S.Ct. 2364 (1994) . . . . . . . 3
Horton v. California, 496 U.S. 128 (1990) . . . . . .10
Illinois v. Gates, 462 U.S. 213 (1983). . . . . . . . 5
In re A.L., No. 93-509, slip op. 2-3 (Vt. April 14, 1995). . . . . . . . . . . . . . . . . . . . . . .75
In re B.S., No. 94-036 (Vt. Mar. 31, 1995). . . . . .80
In re Blackburn, No. 93-449 (Vt. Dec. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .33
In re C.K., Nos. 94-508 & 95-381 (Dec. 15, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .86, 87
In re Cardinal, 162 Vt. 418 (1994). . . . . .33, 70, 72
In re Curfman, No. 95-516 (Vt. Dec. 13, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .29
In re D.L., No. 94-218 (Vt. Sept. 22, 1995) . . . . .21
In re Dodge, No. 92-501 (Vt. Dec. 22, 1992) . . 50, 113
In re Duff, No. 93-020 (Vt. Dec. 21, 1993) . . . . . . .42
In re Goldsmith, No. 95-078 (Vt. March 7, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .33
In re Hanson, 160 Vt. 111 (1993). . . . . . . . . . .44
In re Harris, No. 94-658 (Vt. Dec. 22, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .70
In re Hunt, No. 93-397 (Vt. Jan. 27, 1995). . . 61, 101
In re Inquest Proceedings, No. 96-108 (Vt. March 21, 1996). . . . . . . . . . . . . . . . . . . . . . .80
In re J.G., 161 Vt. 563 (1993). . . . . . . . . .53, 59
In re Mecier, 143 Vt. 23 (1983) . . . . . . . . . . .77
In re Parizo, No. 94-577 (Vt. Sep. 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .33
In re Percy, No. 95-232 (Vt. Feb. 7, 1996). . . . . .33
In re Robinson, 161 Vt. 550 (1994). . . . . . . .15, 18
In re S.T., 161 Vt. 639 (1994). . . . . . . . . . . .16
In re Savard, No. 93-164 (Vt. June 1, 1994) . . . . .33
In re T.F., No. 94-177 (Vt. Feb. 24, 1995). . . . . .81
In re T.P., No. 93-362 (Vt. Sept. 23, 1994) . . . . .86
In re Towne, No. 94-105 (Vt. April 25, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 113
In re Vincent, No. 94-192 (Vt. Sep. 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .33
In re Wilkinson, No. 95-156 (Vt. April 12, 1996). . . . . . . . . . . . . . . . . . . . . . . . . .34, 60
In re Zera, 137 Vt. 421 (1979). . . . . . . . . . . .42
J.E.B. v. Alabama, 114 S.Ct. 1419 (1994). . . . . . .72
J.L. v. Miller, 158 Vt. 601 (1992) . . . . . . . . . . .46
Kyles v. Whitley, 115 S.Ct. 1555 (1995) . . . . . . .67
Liteky v. United States, 114 S.Ct. 1147 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . .61
McCleskey v. Zant, 499 U.S. 467 (1991). . . . . . . 113
Minnesota v. Dickerson, 113 S.Ct. 2130 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Montana Dept. of Revenue v. Kurth Ranch, 114 S.Ct. 1937 (1994). . . . . . . . . . . . . . . . . . . .53
Montana v. Egelhoff, 64 L.W. 4500 (1996). . . . .76, 77
Mullen v. Phelps, 162 Vt. 250 (1994). . . . . . 78, 109
Murphy v. Waterfront Commission, 378 U.S. 52 (1964). . . . . . . . . . . . . . . . . . . . . . . . . .79
Nichols v. United States, 114 S.Ct. 1921 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 26, 103
North Carolina v. Alford, 400 U.S. 25 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Olden v. Kentucky, 488 U.S. 227 (1988). . . . . . . .75
People ex rel. Gallagher v. District Court, 591 P.2d 1015 (Col. 1978). . . . . . . . . . . . . . . . . 107
Powell v. Nevada, 114 S.Ct. 1280 (1994) . . . . . . .23
Purkett v. Elem, 115 S.Ct. 1769 (1995). . . . . . . .72
R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . .56
R.A.V. v. St. Paul, 51 CrL 2225 (1992). . . . . . . .57
Relation v. Vermont Parole Board, No. 94-163 (Vt. April 14, 1995). . . . . . . . . . . . . . . . 111
Reno v. Koray, 115 S.Ct. 2021 (1995). . . . . . . . .41
Rhode Island v. Innis. . . . . . . . . . . . . . . . . .16
Riess v. A.O. Smith Corp., 150 Vt. 527 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . .86
Sanders v. United States, 373 U.S. 1 (1963) . . . . 113
Scott v. Illinois, 440 U.S. 367 (1967). . . . . . . .27
Shannon v. United States, 114 S.Ct. 2419 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . .97
Simmons v. South Carolina, 114 S.Ct. 2187 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . .97
Smith v. Illinois, 390 U.S. 129 (1968). . . . . . . .75
Stansbury v. California, 114 S.Ct. 1526 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . .16
State v. Alcid, No. 93-326 (Vt. April 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .63
State v. Alexander, 157 Vt. 60 (1991) . . . . . . . .12
State v. Alexander, No. 92-049 (Vt. Dec. 3, 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . .12
State v. Allain, No. 94-164 (Vt. July 19, 1995). . . . . . . . . . . . . . . . . . . . . . . . .104, 105
State v. Allen, 145 Vt. 593 (1986). . . . . . . . . 110
State v. Allocco, 162 Vt. 59 (1994) . . . . .16, 84, 99
State v. Amidon, No. 94-287 (Vt. May 20, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Ashley, 161 Vt. 65 (1993). . . . . . . . . .39
State v. Asselin, No. 94-026 (Vt. July 14, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .74
State v. Bacon, No. 92-534 (Vt. Feb.
17, 1995). . . . . . . . . . . . . . . .15, 16, 18, 28, 29, 33
State v. Bailey, No. 93-300 (Vt. June 27, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .29
State v. Ballard, No. 90-135 (Vt. Jan. 27, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .16
State v. Bartley-Cruz, No. 93-267 (Vt. June 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .21
State v. Batchelder, No. 96-125 (Vt. July 5, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . .69
State v. Bean, No. 94-138 (Vt.
Mar. 31, 1995) . . . . . . . . . . 18, 19, 23, 26, 30, 31, 100
State v. Becker, No. 95-061 (Sept. 20, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .54
State v. Belloir, No. 95-464 (Vt. March 7, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 109
State v. Benning, 161 Vt. 472 (1994). . . . . . . . .56
State v. Beyor, 161 Vt. 565 (1993). . . . . . . . . . 8
State v. Bickford, No. 95-048 (Vt. March 7, 1995). . . . . . . . . . . . . . . . . . . . . . . .32, 77, 91
State v. Blackmer, 160 Vt. 451 (1993) . . . . . .37, 39
State v. Blais, No. 94-148 (June 19, 1995). . . . . . 3
State v. Blondin, No. 94-048 (Vt. July 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .42
State v. Blow, 157 Vt. 513 (1991) . . . . . . . . . . 5
State v. Boisvine, No. 93-346 (Vt. July 29, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 108
State v. Bradley, No. 94-582 (Vt. Nov. 3, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .31, 70
State v. Breault, 162 Vt. 625 (1994). . . . . . . . .59
State v. Bristol, No. 93-258 (Vt. Oct. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 106
State v. Brooks, 162 Vt. 26 (1994). . . . . . . . . .86
State v. Brooks, No. 93-010 (Jan. 27, 1995) .56, 73, 91
State v. Brow, No. 95-022 (Vt. Sep. 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 110
State v. Brown, No. 94-277 (March 22, 1996) 25, 27, 104
State v. Burgess, No. 93-448 (Vt. Jan. 27, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11
State v. Callahan, No. 94-402 (Vt. March 7, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 103
State v. Cameron, et al., No. 93-512 (Mar. 24, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .58
State v. Capron, No. 91-323 (Vt. Jan. 15, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .13
State v. Carpenter, No. 94-346 (Vt. Jan. 31, 1995). . . . . . . . . . . . . . . . . . . . . .68, 81, 98
State v. Cartee, 161 Vt. 73 (1993). . . . . .75, 76, 84
State v. Carter, No. 94-459 (Vt. Aug. 31, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .93
State v. Carter, No. 94-412 (Vt. Jan. 12, 1996). . . . . . . . . . . . . . . . . . . . . . . . . .14, 91
State v. Clark, 152 Vt. 304, 309 (1989) . . . . . . .18
State v. Clark, No. 95-208 (Vt. Dec. 22, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .32
State v. Cleary, 161 Vt. 403 (1994) . . . . .17, 30, 61
State v. Coburn, No. 94-460 (Vt. Sept. 22, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .40
State v. Coburn, No. 95-537 (Vt. July 12, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
State v. Cochran, No. 93-582 (Dec. 20, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .38
State v. Cohen, No. 92-268 (Vt. Jan. 21, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .33
State v. Coleman, No. 95-124 (Vt. Dec. 18, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .10
State v. Cooper, No. 93-490 (Vt. Nov. 10, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . .4, 9
State v. Costin, No. 94-226 (Vt. May 18, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . .2, 9
State v. Covell, 146 Vt. 338 (1985) . . . . . . . . .76
State v. Covino, No. 91-231 (Vt. Dec. 2, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .77, 95
State v. Crandall, 162 Vt. 66 (1994) . . . . . . .2, 6, 12
State v. Cross, No. 93-160 (Vt. June 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .21
State v. Currier, No. 94-097 (Vt. Sept. 6, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 112
State v. Daley, 161 Vt. 588 (1993). . . . . . . . . 103
State v. Davis, No. 95-090 (Vt. June 21, 1996). . . . . . . . . . . . . . . . . . . .21, 44, 60, 61, 93
State v. Degree, No. 92-223 (Vt. Feb. 24, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 107
State v. Delisle, 162 Vt. 293 (1994)1, 51, 52, 67, 96, 97, 100
State v. DeRosa, 161 Vt. 78 (1993). . . . . 25, 27, 107
State v. Diaz, No. 94-184 (Vt. Mar. 24, 1995). . . . . . . . . . . . . . . . . . . . . . . .63, 85, 88
State v. Donley, No. 92-567 (Vt. Nov. 17, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .20
State v. Doyen, No. 94-627 (Vt. Mar. 15, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .58
State v. Drown, 148 Vt. 311 (1987). . . . . . . . . .96
State v. Dubuque, No. 93-203 (Vt. Sept. 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .75
State v. Duford, No. 94-083 (Vt. Mar. 30, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .46, 97
State v. Duggan, No. 94-492 (Vt. Oct. 5, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .39
State v. Durenleau, No. 93-168 (Vt. Sept. 30, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .91
State v. Duval, 156 Vt. 122 (1991). . . . . . . . . .25
State v. Elliott, 159 Vt. 102 (1992). . . . . . . . .58
State v. Ellison, No. 92-336 (Vt. March 1, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State v. Emmi, 160 Vt. 377 (1993) . . . . . . . . 5, 68
State v. Fanger, No. 94-262 (Vt. June 30, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .48
State v. Fisher, No. 90-136 (Vt. Oct. 9, 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 101
State v. Fisk, No. 93-545 (Vt. May 10, 1996). . . . . . . . . . . . . . . . . . . . . . 100, 101, 114
State v. Fitzgerald, No. 92-214 (Vt. May 28, 1993). . . . . . . . . . . . . . . . . . . . . . . . . 108
State v. Fitzgerald, No. 94-650 (Vt. July 5, 1996) . . . . . . . . . . . . . . . . . . . . . .16, 17, 99
State v. Flagg, 160 Vt. 141 (1993). . . . . . . . . 105
State v. Flower, 539 A.2d 1284 (N.J. Super. Ct. 1987). . . . . . . . . . . . . . . . . . . . . . . . . .17
State v. Forbes, 161 Vt. 327 (1994) . . . . . . . 82-84
State v. Forcier, 162 Vt. 71 (1994) . . . . . . . 7, 19
State v. Francis, 151 Vt. 296 (1989). . . . . . . . .89
State v. Franklin, No. 94-450 (Vt. Jan. 8, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .90
State v. Franklin, No. 94-176 (Vt. April 25, 1995). . . . . . . . . . . . . . . . . . . . . . . 84, 109
State v. Frechette, 161 Vt. 233 (1993). . . . . . . .55
State v. Fuller, No. 94-441 (Vt. April 14, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .17, 31
State v. Gabert, No. 92-658 (Vt. Dec. 21, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 106
State v. Galloway, No. 95-261 (March 7, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .42
State v. Gawrys, No. 93-231 (Vt. April 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .14, 92
State v. Gedutis, No. 93-216 (Vt. Oct. 12, 1994). . . . . . . . . . . . . . . . . . . . . . . . . 67, 110
State v. George, 161 Vt. 615 (1994) . . . . . . . . .30
State v. Gilman, 158 Vt. 210 (1992) . . . . . . . . .76
State v. Gilman, No. 93-595 (Vt. Oct. 27, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 114
State v. Giroux, 151 Vt. 361 (1989) . . . . . . . . .89
State v. Gleason, 154 Vt. 205 (1990). . . . . . . . .78
State v. Gleason, No. 91-496 (Vt. Jan. 6, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .75
State v. Godfrey, 131 Vt. 629 (1973). . . . . . . . 109
State v. Gomes, 162 Vt. 319 (1994). . . .21, 69, 78, 87
State v. Goodnow, No. 91-233 (Vt. May 27, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .85, 87
State v. Goodrich, No. 94-071 (Vt. Mar. 24, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 109
State v. Groff, No. 93-542 (Vt. Oct. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .71, 92
State v. Hall, No. 95-249 (Vt. March 7, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .23
State v. Hamilton, No. 92-357 (Vt. April 21, 1993). . . . . . . . . . . . . . . . . . . . . . . . . 110
State v. Hanlon, No. 94-584 (Vt. Aug. 11, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .50, 66
State v. Hart, No. 93-101 (Vt. April 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .12
State v. Hart, No. 95-631 (Vt. Dec. 22, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .38
State v. Hatch, No. 94-209 (Vt. April 25, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .34, 91
State v. Heath, 162 Vt. 618 (1994). . . . . . . . . .66
State v. Heuer, No. 95-172 (Vt. January 8, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Highter, No. 94-389 (Vt. May 20, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 114
State v. Hildebrand, No. 92-283 (Vt. April 21, 1993). . . . . . . . . . . . . . . . . . . . . . . . . .62
State v. Hollis, 161 Vt. 87 (1993). . . . . . . . .4, 7
State v. Houle, 162 Vt. 41 (1994) . . . .14, 15, 67, 93
State v. Hudson, No. 92-628 (Vt. Feb. 17, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . .98
State v. Hughes, No. 94-606 (Vt. Oct. 3, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .33
State v. Huginski, 139 Vt. 95 (1980). . . . . . . . .58
State v. Hugo, 156 Vt. 339 (1991) . . . . . . . .68, 90
State v. Hurley, 150 Vt. 165 (1988) . . . . . . . . .51
State v. Ives, 162 Vt. 131 (1994) 17, 30, 43-45, 47, 66
State v. Jarry, 161 Vt. 629 (1994). . . . . . . .22, 77
State v. Jeffreys, No. 95-24 (Vt. April 28, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .40
State v. Jones, 157 Vt. 553 (1991). . . . . . . . . .66
State v. Jones, 160 Vt. 440 (1993). . . . . . . .81, 82
State v. Judkins, 161 Vt. 593 (1993). . . . . . . . .12
State v. Kasper, 137 Vt. 184, 192 (1979). . . . . . .20
State v. Keith, 160 Vt. 257 (1993). . . . . . . . . .51
State v. Kelley, No. 93-612 (Vt. Feb. 17,
1995). . . . . . . . . . . . . . . . . . . 67, 81, 82, 96, 105
State v. Kemp, 160 Vt. 647 (1993) . . . . . . . . . .91
State v. Kemph, No. 92-480 (Vt. April 2, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .89
State v. Kiefer, No. 92-046 (Vt. Dec. 18, 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 110
State v. Knox, No. 94-374 (Vt. Aug. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .36
State v. Kulakov, Nos. 92-660 & 93-412 (mem.) . . . . . . . . . . . . . . . . . . . . . . . . .11, 36
State v. Lacourse, No. 94-210 (Vt. Oct. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .94
State v. Ladabouche, No. 93-082 (Vt. Aug. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . 106
State v. Ladue, 160 Vt. 630 (1993). . . . . . . . . .57
State v. Lamell, No. 94-257 (Vt. Nov. 10, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .18
State v. Lang, No. 93-248 (Vt. Sept. 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .12
State v. Langlois, No. 94-031 (Vt. Sept. 1, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6
State v. Lawton, No. 93-098 (Vt. Sept. 1, 1995). . . . . . . . . . . . . . . . . . . . . . . .84, 86, 87
State v. LeFrancois, No. 93-205 (Vt. Feb. 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .26
State v. Leggett, No. 93-202 (Vt. June 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .87, 88
State v. Lincoln, No. 96-078 (Vt. May 15, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .61
State v. Locke, No. 92-052 (Vt. April 1, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .85
State v. Locke, No. 94-329 (Vt. Feb. 24, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 107
State v. Lockwood, 160 Vt. 547 (1993)11, 43-46, 107-110
State v. Lund, No. 94-284 (Vt. June 16, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .77
State v. Mable, No. 93-282 (Vt. Feb. 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .26
State v. Mace, 154 Vt. 430 (1990) . . . . . . . . . .78
State v. Madison, No. 95-046 (Vt. March 1, 1995). . . . . . . . . . . . . . . . . . . . . . . .38, 39, 41
State v. Marcello, 157 Vt. 657 (1991) . . . . . . . .11
State v. Marcy, No. 94-173 (Vt. March 22, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .91
State v. Martel, No. 94-225 (Vt. Dec. 22, 1995). . . . . . . . . . . . . . . . . . . . . . . .22, 94, 99
State v. Martin, 145 Vt. 562 (1985) . . . . . . . . .12
State v. Masse, No. 94-660 (Vt. Dec. 22, 1995). . . . . . . . . . . . . . . . . . . . . . . . .108, 110
State v. McHugh, 161 Vt. 574 (1993) . . . . . . . . .56
State v. Meacham, No. 93-614 (Vt. June 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .98
State v. Merchant, No. 91-583 (Vt. Jan. 6, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 108
State v. Merritt, 149 Vt. 529 (1988). . . . . . . . .11
State v. Meunier, 137 Vt. 586 (1979). . . . . . . . . 3
State v. Moffitt, No. 94-242 (Vt. Jan. 8, 1996). . . . . . . . . . . . . . . . . . . . . . . . . 27, 104
State v. Morris, No. 94-299 (Vt. March 22, 1996). . . . . . . . . . . . . . . . . . . . . . . 2, 3, 9, 11
State v. Moses, 159 Vt. 294 (1992). . . . . . . . . .11
State v. Mott, No. 95-248 (March 7, 1993) . .23, 40, 53
State v. Nunez, 162 Vt. 615 (1994). . . .14, 15, 63, 96
State v. Ogden, 161 Vt. 336 (1993). . . . . . . . . . 7
State v. Olsen, No. 95-119 (Vt. May 10, 1996). . . . . . . . . . . . . . . . . . . . . . . 21, 76, 114
State v. Oren, 162 Vt. 331 (1994) . . . . . . . . . .55
State v. Parizo, No. 91-264 (Vt. Dec. 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .20, 26
State v. Passino, 161 Vt. 515 (1994). . . . . . .69, 76
State v. Passino, No. 94-244 (Vt. May 31, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .40
State v. Pellerin, 161 Vt. 229 (1993) . . . . . .17, 31
State v. Pellerin, No. 94-388 (Vt. Oct.
27, 1995). . . . . . . . . . . . . . . 54, 58, 61, 72, 81, 103
State v. Pennington, 162 Vt. 621 (1994) . . . . . . 110
State v. Perillo, 162 Vt. 566 (1994). . .22, 53, 84, 91
State v. Perrier, No. 94-380 (March 22, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .27
State v. Philippon, No. 94-116 (Vt. Aug. 31, 1995). . . . . . . . . . . . . . . . . . . . . . . .14, 94
State v. Pierce, No. 93-328 (Vt. Jan. 20, 1995). . . . . . . . . . . . . . . . . . . . . . . . . 49, 107
State v. Pilette, 160 Vt. 509 (1993). . . . . . . . 101
State v. Plante, 94-053 (Nov. 3, 1995). . . .76, 79, 81
State v. Platt, 154 Vt. 179 (1990). . . . . . . . . . 4
State v. Ploof, 162 Vt. 560 (1994). . . . . 43, 44, 102
State v. Pollard, No. 92-592 (Vt. Jan. 20, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .30, 43
State v. Porter, No. 94-215 (Vt. Jan. 5, 1996). . . . . . . . . . . . . . . . . . . . . . . . . 27, 103
State v. Powell, No. 94-370 (Vt. June 9, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .32
State v. Powers, No. 92-553 (Vt. Dec. 16, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .80, 94
State v. Proper, No. 94-268 (Vt. Oct. 16, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .96
State v. Provoncha, No. 93-278 (Vt. Feb. 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . 106
State v. Putnam, No. 95-344 (Vt. Jan. 12, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .61
State v. Quinlan, No. 93-179 (Vt. Aug. 11, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .49, 50
State v. Raymond, No. 93-131 (Vt. Oct. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .88, 89
State v. Read, No. 95-023 (March 22, 1996). . . . . .56
State v. Reavis, No. 93-303 (Vt. Nov. 1, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .76
State v. Reynolds, No. 94-198 (Vt. Jan. 8, 1996). . . . . . . . . . . . . . . . . . . . . . . 27, 89, 104
State v. Rice, 148 Vt. 313 (1987) . . . . . . . . . .26
State v. Richardson, 161 Vt. 613 (1994) . . . . . . 106
State v. Rickert, No. 94-187 (Vt. Aug. 26, 1995). . . . . . . . . . . . . . . . . . . . . . . . . 78, 108
State v. Rivers, 84 Vt. 154 (1911). . . . . . . . . .95
State v. Roberts, No. 95-064 (Vt. Nov. 16, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .23
State v. Robinson, No. 95-556 (Vt. July 26, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State v. Rogers, 161 Vt. 236 (1993) . . . . . . . .3, 8
State v. Rounds, No. 93-127 (Vt. Sept. 27, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .75
State v. Sage, 161 Vt. 633 (1994) . . . . . 28, 31, 112
State v. Samir Abed-Rabbo, No. 93-404 (Vt. March 31, 1994). . . . . . . . . . . . . . . . . . . . . . .77
State v. Sauve, No. 94-670 (Aug. 11, 1995). . . .49, 50
State v. Savery, No. 93-520 (Vt. Feb. 7, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .34
State v. Sawyer, No. 94-522 (Vt. Nov. 1, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .14
State v. Schellhardt, No. 92-156 (Vt. Oct. 22, 1993). . . . . . . . . . . . . . . . . . . . . . . . . .20
State v. Schellhardt, No. 95-336 (Vt. June 28, 1996). . . . . . . . . . . . . . . . . . . . . . . . . .77
State v. Schooner, No. 92-095 (Vt. Jan. 27, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . .93
State v. Seagroves, 161 Vt. 309 (1994). .50, 66, 68, 79
State v. Searles, No. 93-376 (Vt. June 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 106
State v. Senna, 154 Vt. 343 (1990). . . . . . . . . .45
State v. Sharby, No. 94-611 (Vt. Sept. 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . 71, 114
State v. Shattuck, No. 92-555 (Vt. Dec. 21, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 109
State v. Smith, 136 Vt. 520 (1978). . . . . . . . . .97
State v. Smith, No. 92-185 (Vt. Feb. 24, 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 105
State v. St. Pierre, No. 94-491 (Vt. Sep. 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .98
State v. Stetson, No. 94-092 (July 26, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .51
State v. Streich, No. 91-335 (Vt. Feb.
17, 1995). . . . . . . . . . . . . . . .47, 62, 65, 68, 86, 98
State v. Stukas, No. 94-179 (Vt. April 25, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .71
State v. Tatro, 161 Vt. 182 (1993). . . . . . . . . 104
State v. Teeter, No. 94-350 (Vt. July 14, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .36
State v. Terry, 159 Vt. 531 (1993). . . . . . . .12, 13
State v. Thompson, 162 Vt. 532 (1994) . . . . . 43, 102
State v. Thompson, No. 93-405 (Vt. Sept. 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .16
State v. Thompson, No. 94-247 (Vt. Jan. 27, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .18
State v. Thompson, No. 95-273 (Vt. June 23, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .38, 41
State v. Thorpe, No. 92-469 (Vt. Aug. 31, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 104
State v. Tinker, No. 93-055 (Vt. Sept. 29, 1994). . . . . . . . . . . . . . . . . . . . . . . . . .22, 89
State v. Tinker, No. 95-126 (Vt. March 13 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .92
State v. Towne, 158 Vt. 607 (1992). . . . . . . . . 108
State v. Trono, No. 94-334 (Vt. June 23, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .39
State v. Trudeau, No. 95-494, slip op. 6 (Vt. July
26, 1996). . . . . . . . . . . . . . . . . . . . . . . .10, 11
State v. Turgeon, 161 Vt. 561 (1993). . . . . . . . 101
State v. Turgeon, No. 94-683 (March 8, 1996). . . . . . . . . . . . . . . . . . . . . . . .51, 54, 96
State v. Turso, No. 95-659 (Vt. Jan. 17, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .39
State v. Vanhouten and Bushell, Nos. 94-599 & 94-600 (May 16, 1996). . . . . . . . . . . . . . . . . . .58
State v. Veburst, 156 Vt. 133 (1991). . . . . . . . .68
State v. Verrinder, 161 Vt. 250 (1993).68, 85, 104, 105
State v. Vincent, 156 Vt. 259 (1991). . . . . . . . .80
State v. Walker, No. 94-109 (Oct. 19, 1994) . . . . .41
State v. Washington, No. 93-410 (Vt. Oct. 24,
1995). . . . . . . . . . . . . . . . . . . . . 76, 77, 93, 105
State v. Webster, No. 94-106 (Vt. March 15, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .76
State v. Wedge, No. 94-585 (Vt. Sep. 28, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .14
State v. Welch, 159 Vt. 272 (1992). . . . . . . . . .45
State v. Welch, 162 Vt. 635 (1994). . . . . . . . . . 6
State v. Weller, 162 Vt. 79 (1994). . . . . . . .92, 97
State v. West, 151 Vt. 140 (1989) . . . . . . . . . .26
State v. West, No. 94-231 (Vt. Sept. 1, 1995). . . . . . . . . . . . . . . . . . . . . . . 71, 92, 102
State v. Williams, 154 Vt. 76 (1990). . . . . . . . .44
State v. Winner, No. 93-507 (Vt. June 24, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .22
State v. Winter, 162 Vt. 388 (1994). . . . . . . . . 81-84
State v. Wisell, No. 94-547 (Vt. Nov. 10, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .40
State v. Wolven, No. 94-089 (Vt. April. 1, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . .36
State v. Woodmansee, No. 95-263 (Vt. June 16, 1995). . . . . . . . . . . . . . . . . . . . . . . . . .40
State v. Wool, 162 Vt. 342 (1994) . . . .31, 32, 94, 98
State v. Wool, No. 93-506 (Vt. Aug. 19, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 114
State v. Wright, No. 93-547 (Vt. March 4, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .87
State v. Wright, No. 94-375 (Vt. Oct. 26, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . .46
Stempel v. Groczyk, No. 94-556 (Vt. Jan. 5, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . .42
Sullivan v. Louisiana, 113 S.Ct. 2078 (1993) . . . . . . . . . . . . . . . . . . . . . . . . .89, 90
Teague v. Lane, 489 U.S. 288 (1989) . . . . . . . . 113
United States v. 14.5 Acres, 857 F. Supp. 22 (D. Vt. 1994) . . . . . . . . . . . . . . . . . . . . . .13
United States v. Atkinson, 450 F.2d 835 (5th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Dunn, 480 U.S. 294 (1987). . . . . . 3
United States v. Gaudin, 115 S.Ct. 2310 (1995) . . . . . . . . . . . . . . . . . . . . . . . . .95, 97
United States v. Mezzanatto, 115 S.Ct. 1671 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 100
United States v. Place, 462 U.S. 696 (1983) . . . . .10
United States v. Salerno, 481 U.S. 739 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . .37
United States v. Ursery, 64 L.W. 4565 (1996) . . . . . . . . . . . . . . . . . . . . . . . . .13, 53
Vernonia School District 47J v. Acton, 115 S.Ct. 2386 (1995). . . . . . . . . . . . . . . . . . . . . . 8
Victor v. Nebraska, 114 S.Ct. 1239 (1994). . . . . . . .89
Washington v. Harper, 494 U.S. 210 (1990) . . . . . .46
Weaver v. Graham, 450 U.S. 24 (1981). . . . . . . . 105
Whren v. United States, 64 L.W. 4409 (1996) . . . . . 7
Wilson v. Arkansas, 115 S.Ct. 1914 (1995) . . . . . . 6
Wilson v. Arkansas, 115 S.Ct. 1914 (1995) . . . . . . 6
Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . .56
Witte v. United States, 115 S.Ct. 2199 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . .53
Wool v. Decker, No. 94-613 (Vt. Dec. 15, 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Zafiro v. United States, 113 S.Ct. 933 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . .64