The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought. 

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Monday, November 5, 2012

Split? 

Defendant wanted to go to a party. 
One late-summer evening Defendant woke his wife up, and told her that he
planned to take their shared car to a party.  Wife pointed out
to Defendant that she had to work in the morning, so he needed to get back with
the car before she had to leave the next day.  Defendant
felt this was curfew-like in nature, and the ensuing argument turned violent.  Defendant
threw his wife down, and her head struck an unidentified hard object.  Defendant then drove to the party, while his
wife lay dazed in the back seat.  At the party, she
managed to find a ride home from a friend, who saw a bump on the back of her
head. 

Defendant got home at about five in the morning.  He refused to give Wife the keys to the
car.  She unsuccessfully tried to call in
late to work.  Eventually, she decided to leave Defendant and began
packing her things. 

Many of our readers are probably wondering why Defendant’s stuff
wasn’t in the front yard by the time he got home at five in the morning but from what little we know, it appears
Defendant has an abnormally short fuse. 

Defendant locked Wife out of the car, and a second violent
argument began.  Defendant grabbed Wife’s face and began striking her head
against the living room wall.  She managed to get away and fled the house,.  She ran to a nearby grocery store, where she told
an employee she had been attacked and that he should call the police for help. 

Defendant showed up at the store in the car a few minutes later,
but the store owner helped hide Wife, and a customer told Defendant he wasn’t
welcome there.  Wife went to the
hospital. 

Defendant was charged with two counts of domestic assault and one
count of driving with a suspended license.  One count of
assault was for Defendant’s actions before going to the party; the other was
for his actions the morning after.  The suspended-license charge was for
his driving to and from the grocery store.  A jury convicted defendant of
all three charges.  Defendant appealed. 

Defendant’s first argument is that the two assault charges
should’ve been severed, and he should’ve had separate trials.  The trial court reasoned that the incidents
were part of a series of events and that severance was not necessary. 

In a shameless Sesame Street reference, today’s lesson in criminal
procedure is brought to you by the numbers 8 and 14.  These are the Vermont Rules of Criminal
Procedure that govern joinder and severance of offenses. 

Rule 8(a) allows charging a defendant with more than one offense
in a single information when the offenses:

·are of the same or similar
character

·are based on the same conduct

·are based on a series of acts
connected together, or

·are parts of a single scheme
or plan. 

Rule
14 then comes into play.  If the offenses
are joined for the first reason (same or similar character) only, then a
defendant has a right to severance.  But if any of the other reasons
apply, then it’s up to the trial court, which has to decide whether severance
is necessary for a fair determination of guilt or innocence. 

Defendant’s
first argument, then, is that the offenses were joined simply because they were
of the same or similar character and for no other reason, and so, he was
entitled to severance. 

The
SCOV begins by rejecting Defendant’s premise. 
The SCOV analyzes the joinder under the series-of-connected-acts ground,
reasoning that this was what the trial court really meant to do.  At this
point, we can surmise that this decision is not going to go Defendant’s
way.  The SCOV notes a few prior cases,
the ABA standards (on which Rules 8 and 14 are based), and rejects Defendant’s
argument that joinder is limited to situations in which one of the crimes is
committed to aid in another. 

The
SCOV also notes that a common question in joinder cases is whether the same
evidence admitted in one trial (if the offenses were to be severed) could be
used in the other trial.  In general,
uncharged acts of domestic assault are admissible in domestic assault cases in
Vermont to show the dynamic between the parties.  Here, the SCOV concludes that “the evidence of the other
assault might have been admissible in each” and that joinder was appropriate:
(1) same complainant; (2) same location; (3) close in time; (4) ongoing
conflict over the use of the one car that defendant and complainant shared; and
(5) that the first attack led to the second attack.  The SCOV holds that the offenses were part of
a series of acts. 

The SCOV
next addresses Defendant’s claim that the jury instruction regarding excited
utterances was improper.  Strangely enough, besides admitting Wife’s statements
to an A&B beverage employee, the trial court “took the unusual step” of giving
an excited-utterance doctrine instruction to the jury. 

While the SCOV agrees with Defendant that the trial court
“shouldn’t’ve done that,” the SCOV concludes beyond a reasonable doubt that
Defendant would’ve been convicted anyway and finds the instruction to be
harmless error. 

Defendant’s final claim is that parts of the prosecutor’s closing
arguments were inflammatory and unduly prejudicial.  Due to no objection
below, we’re in clear error territory. 
Essentially the prosecutor seemed to call Defendant a liar on two
occasions, said the complainant was brutalized, and said that Defendant was
“contemptuous of the law” (driving with a suspended sentence) and “contemptuous
of life” (the attacks on Wife)

Though the SCOV notes that it doesn’t like it when a prosecutor
calls a defendant a liar, the SCOV concludes that the prosecutor’s implication
that Defendant was a liar was not central to the issues in the case. 

The SCOV also concludes that the prosecutor’s commentary on the
evidence was within bounds.  Regarding the
‘contemptuous’ comments, the SCOV concludes that “[a]lthough the prosecutor
must be fair in his comments, he can be harsh in describing defendant’s
conduct.”