SCOV Law Blog: Don’t tell it to the judge

Editor’s note: This analysis of a recent Vermont Supreme Court ruling is by Daniel Richardson, the founder of SCOV Law Blog.

State v. Mead, 2012 VT 36.

Let’s face it. When you are on the wrong side of a State v.____ ticket, chances are you have done (or at least been accused of doing) something dumb. A few journalists make a healthy living just pointing this out. Many bloggers just do it for free.

Today’s defendant provides the case in point. In 2009, defendant attended a summer house party in Burlington. Also attending the party was defendant’s ex-girlfriend/mother-of-his-child and her new boyfriend. Defendant took the opportunity of a public social situation to try to reunite with his ex-girlfriend and began trying to engage her in various conversations about getting back together. Ex-girlfriend was apparently not persuaded by defendant’s repeated rhetorical approach.

During the course of defendant’s failed colloquy attempts, he decided to get the 9mm from his car and tuck it into his waistband. Shortly thereafter, the ex-girlfriend, her boyfriend and other friends went into a room to get away from defendant. Boyfriend slammed the door in defendant’s face.

Defendant, quite unhappy with this turn of events, demanded to be let in, informed his hosts that he was no longer playing around, and cocked the gun. Boyfriend opened the door, and defendant pointed the gun at boyfriend. Boyfriend smacked the gun away. Defendant ran down the hall, stopped, and fired two shots. They missed, and another guest tackled defendant. Defendant fired another shot. Boyfriend began punching defendant who fired another shot. Defendant wriggled away and ran outside. Boyfriend in a fit of bullet-proof pique ran after him. Defendant aimed and fired twice at boyfriend, but the gun did not fire.

Defendant was arrested and charged by the State with attempted first-degree murder. Defendant, of course, disagreed. This was a dumb decision (no doubt added by the party’s social lubricants), but it was not an attempt to murder.

Based on the facts above, the question for the jury was not whether defendant did what he did, but did he mean to kill boyfriend and/or girlfriend.

At trial, the jury disagreed with defendant’s position, but they also rejected the state’s premeditated argument and convicted defendant on the lesser included charge of second-degree murder. The verdict rendered by the jury indicates that they believed he intended to kill in the heat of the moment and did not plan the attempted killings. Defendant appealed.

On appeal, defendant raised four issues, which all centered on the conduct of his trial. The Vermont Supreme Court has no trouble rejecting three of the four as either non-errors or minor ones that did not alter the outcome of the trial. The last issue, however, sparks a minor disagreement between the justices.

Defendant’s first claim of error stems from the fact that a police officer involved with the investigation spoke with a juror during trial.

Here is what happened. The prosecution’s first witness was the police lieutenant who secured the crime scene and did some of the initial site work. Her testimony was fairly factual and straightforward. It did not involve interviewing witnesses or making judgment calls. After her testimony the officer was walking on Church Street and recognized a friend of a friend. The two struck up a conversation about the dumplings the friend of a friend was eating. When the friend of a friend said that she had a new appreciation of the officer’s work, the officer suddenly realized she was speaking to a juror. The officer ended the chitchat immediately and presumably reported it to the prosecution who informed the trial court prior to sentencing.

Contacting a juror before a verdict by either side is a big, big no-no, but the question is whether it violated defendant’s constitutional rights such that a mistrial was mandated.

Following discovery of the evidence, the trial court held a hearing where the officer related the facts above, and the juror stated that she was not influenced by her conversation and did not believed the prosecution more because of her new appreciation of the officer.

This is good enough for the SCOV to reject the defendant’s arguments. Because the officer was a minor, primarily factual witness, because the conversation was innocuous, and because the juror admitted no bias as a result, the extraneous influence was insufficient to warrant a mistrial. The SCOV does take some pains to distinguish the facts here from a case decided earlier this year where the extraneous influence, while minor, was relevant to the core issues of the case and inherently affected or had the strong likelihood to affect the verdict. Here there was no likelihood, and by extension, no mistrial.

Chalk one up to the small social circles of Vermont.

Defendant’s second argument concerned the testimony elicited from the ex-girlfriend and others that detailed defendant’s long, obsessive and hyper-controlling relationship with the ex.

Defendant’s main objection is that these prior bad acts, which included accounts of throat-grabbing and micro-managing of ex-girlfriend’s free time, were not relevant or admissible to prove a charge of first degree murder.

The SCOV disagrees. True, prior bad acts are generally inadmissible, but there are exceptions. The evidence is admissible under Rule of Evidence 404(b) because it shows motive and intent. Since motive and intent were the primary issues in this case, the trial court properly allowed this evidence to the jury. Furthermore, the trial court also conducted a Rule 403 analysis to determine that its probative value outweighed the prejudice to defendant. Since the trial court minded the procedure and ruled clearly on both the Rule 404(b) and Rule 403 analysis, the SCOV will give discretion to the trial court’s specific findings.

Defendant’s third argument concerns the jury charge. The charge did not require the jury to determine which shots they based their verdict upon. The defendant argues that this ambiguity undermines the requirement of jury unanimity because it is possible that some jurors convicted defendant based on the first shots fired in the house while others voted based on the misfires outside.

Nonsense says the SCOV. First, defendant did not object to the jury instruction. So the SCOV reviews this under the plain error rule, which mean that defendant’s burden is steep. Second, the various shots constituted a single event and did not require the trial court to specify as the state did not contend that the shots were somehow different. In others words, it was one big event, and the jurors did not need to split hairs over whether the shot they were thinking of was the shot that the others were considering.

Defendant’s last argument is the one that give the SCOV the greatest amount of trouble in this case, which is not to say a great deal of trouble, but it exposes a difference of degrees between at least two of the justices.

Defendant’s final objection is to the admission of his testimony that he gave at a relief from abuse hearing that the ex-girlfriend requested after the shooting incident. During that hearing, defendant was unrepresented and was not warned by the family court that he had a right not to self-incriminate and that anything he said could be used against him in his eventual trial.

The SCOV reviews this issue for plain error because defendant did not raise it to the trial court, and finds that it does not rise to a level requiring the SCOV to vacate and remand. Particularly, the SCOV notes that defendant’s testimony at the hearing was essentially the same version of events that he gave at trial. He admitted shooting, but he claimed it was an accident and that he did not intend to shoot anyone. While this may have had a cumulative effect, it did not create substantial prejudice.

Setting that aside, the SCOV takes up defendant’s main beef that the admission of the hearing tape included the skeptical responses that defendant received from the family court judge. The problem here is that a jury is likely to be swayed by the statements or positions of a judge. By playing the family’s court’s response to defendant’s nearly identical testimony, the trial court was allowing the jury to be improperly swayed by the authority of the judge.

Here is where the SCOV splits slightly. Writing for herself and Justice Dooley, Justice Skoglund agrees with the defendant that the admission of these judicial responses and statements were improper and should not have been admitted. Writing as a concurrence, the two justices state that such admissions are always in error. The majority does not go that far. It reserves judgment on this issue and simply skips to the next step of the analysis.

Instead of determining whether the admission was in error, the majority, joined by the concurrence, looks to see if the judge’s statements made a difference in the verdict. In this case, they did not. Defendant’s testimony at trial was effectively cross-examined and undermined so thoroughly that the family court testimony was cumulative and not determinative of the outcome. A united SCOV rules that even if the family court hearing had not been played, the outcome would have been the same.

Defendant, like the night in question, goes 0-for-4 with his shots, and the conviction is upheld.