Court Issues Wake Up Call on VRE 605

State v. Gokey, 2010 VT 89

            Defendant was convicted by a jury for lewd and lascivious conduct with a child.  He appealed the  conviction on the grounds that trial court judge abused her discretion in deciding that he was competent for trial by (1) conducting ex parte conversations; (2) violating Vermont Rules of Evidence 605—prohibiting a judge from testifying at trial over which she is presiding; (3) violating the Code of Judicial Conduct.  In a divided opinion, the Vermont Supreme Court reversed and remanded.

           
            The relevant facts are as follows.  Defense counsel raised concerns that her client did not feel well and could not concentrate at trial.  The trial was suspended until the following day so that defendant could be examined by medical personnel.  The next day, defendant reported feeling sleepy from his medication and defense counsel noted serious doubts about whether the trial could proceed.

            After questioning defense counsel about defendant’s medical history, the judge called a bench conference with defense counsel, the prosecutor, and the officer who had transported defendant to court.  At the conference the judge stated that she wondered whether defendants’ health problems/sleepiness was real.  She questioned the officer, who reported defendant was fine in the car.  The judge eventually allowed a thirty minute continuance and reminded counsel and the jury that she “questioned the veracity of all of this.”

            During the recess, the judge contacted Walgreens pharmacy to speak with a pharmacist she did not know in regards to defendant’s medication.  The pharmacist advised her that defendant’s behavior was not consistent with the side effects of the medicine.  The judge then called two transport officers into her chambers to question them about defendant’s behavior the previous day.  The judge recounted these conversations on the record and then noted that based on “everything I’ve heard, I believe . . . [defendant] is malingering . . . .”  The prosecution and defense were then provided an opportunity  to question the officers.  The pharmacist was not in court.

            This case represents the first time the Vermont Supreme Court has ever found a violation of V.R.E. 605.  In doing so, the Majority applied a broad view of Rule 605 that the Rule is not limited to statements formally given from the witness stand.  Instead, the judge acted as a witness by conducting ex parte communications with the officers and the pharmacist. This type of outside research and off-the-record fact finding is precluded by Rule 605.  The Majority also found that the judge’s actions violated the Code of Judicial Conduct and defendant’s due process rights were violated by being denied the opportunity to confront the pharmacist or put on evidence following the officer’s testimony.  Because of the nature of V.R.E. 605, the Court finally found that no objection had to be made to preserve the issue and Defendant did not have to show prejudice resulting from the violation. 

            Although it noted that the judge’s behavior was unorthodox, the dissent argued that the Majority’s overly broad application of Rule 605 was contrary to the plain language of the Rule that “a judge sitting at the trial may not testify in that trial as a witness.”  In the dissent's view, the trial court judge had acted aggressively on the issue but had not crossed the line into testimony.

—Jennifer McDonald