Sunday, April 14, 2013

The Thing I Cannot Get



State v. Casey, 2013 VT 22

No frills, philosophical introductions, or lengthy explanations for today’s case.  It is a piece of shopcraft, the law’s version of boilermaking.  So in that spirit let’s get to the heart of things and see how it is done.

Defendant and his girlfriend were charged with multiple counts of aggravated sexual assault.  The opinion never details the facts from which these charges stem, but there are enough details and references to glean that these were horrible acts and likely involved the girlfriend’s daughter.  The trial court, quoted in paragraph 5 goes the Lovecraft route and repeats the word “shocking” to summarize the cumulative horror of the evidence in the case. 


The present appeal stems from the State’s third attempt to prosecute Defendant and his girlfriend.  The first trial ended with a hung jury, and the second trial, which ended in a conviction, had to be set aside due to improper admission of certain evidence. 

The third time, though, was the charm for the State, which secured a conviction against Defendant and brings us to the current appeal.

Defendant’s arguments on appeal concerned the fact that his trial was consolidated against his will with his girlfriend, who mid-trial agreed to a plea guilty to a lesser charge, which led to her dropping out.

If this sounds like a recipe for reversal, it is not.  These issues raise more practical than legal concerns.  That is  because criminals who act together or conspire to commit crimes can be tried together.  Likewise, if one of the criminal defendants takes a deal in the middle of the trial, it is not the end of the trial or cause to start over. 

In both cases, the real issue is whether the trial court handled the situation appropriately.  This means dealing with these circumstances in a manner that avoids prejudicing the jury and that creates or maintains a fair trial.

So Defendant’s argument that his trial was improperly joined with his girlfriend’s trial comes under an abuse of discretion review.  The SCOV starts by noting that trial courts have broad discretion to order joint trials where the alleged crimes are closely connected or part of a common scheme and that a joint trial will not prejudice a party. 

Here the trial court found that both elements were present as the alleged sexual assaults were committed by the defendants at the same time or within a relatively short period of time.  Such coordination was enough evidence to show that there was likely a common plan or scheme and that the crimes were closely connected.  The trial court also found that the “shocking” nature of the crime, the facts were fairly straightforward, and the evidence easy to separate between the Defendants.  So it ruled no prejudice ran to either defendant as a result of the joinder.

The SCOV does not delve into the trial court’s analysis but looks to the State’s argument that Defendant failed to properly preserve the objection.  The SCOV notes that before the first trial, Defendant had objected to the joinder.  By the second, he withdrew his objection, and stated no opposition to the joint trial. 

At the beginning of the third, counsel for girlfriend renewed her continued and on-going objection to the joinder, which she had entered at the two previous trials.  Defendant’s counsel added “same here.”  The SCOV notes that such an informal objection after a convoluted history is insufficient.  “Same here” or “me too, bub” doesn’t cut it.  Defendant needed to lodge his objections clearly and possibly through a written motion to preserve the issue.  As it stands, the objections are insufficient, and the SCOV refuses to consider the joinder issue or revisit the trial court’s ruling on the matter.

No dice for Defendant, and he does not fair better on the issue of the girlfriend bargaining out of the case.  For the SCOV this issue is one of prejudice and jury instructions.  When girlfriend took her plea deal, the trial court told the jury simply that the trials had been split, that this may have happened for any number of reasons, and that the jury should attach no weight to it.  Defendant argued that his conviction was proof that the jury did not listen to the instruction. 

The SCOV disagrees.  It rules that the trial court’s instruction was proper and correct.  It disregards Defendant’s allegations that the verdict shows prejudice.  There was plenty of evidence to convict, and Defendant presents no evidence establishing that the jury reached its decision improperly. 

The SCOV goes on to address Defendant’s further argument that evidence admitted during the girlfriend’s time as a co-defendant prejudiced him.  Apparently, the girlfriend’s abuse of her daughter started long before the time Defendant became involved, and Defendant argued that this additional cumulative evidence effectively prejudiced the jury against him.  This is simply not enough for the SCOV.  It notes that the facts attributable to each defendant remained easily distinguishable.  So while there was testimony of a wide number of sexual assaults, there was no legitimate question about which were and were not attributable to Defendant. 

This is important to the SCOV.  Yes, the amount evidence was broader than if Defendant had been tried alone, but there was no reasonable question which acts the State sought to link to Defendant, and there was no gap between the acts alleged and the findings of the jury.  Given that Defendant cannot cite to specific prejudice or to improper considerations by the jury, the claim fails as a matter of law.

The last issue raised by Defendant is the admission of the victim’s diary, which allegedly contained a secret code noting the number of assaults that she suffered.  The trial court initially ruled that the diary was inadmissible, but that the State could ask her if she kept a diary and kept notes corresponding to the various sexual abuse incidents. 

On cross-examination, the Defendant introduced the diary to show that there were no secret markings and no descriptions of abuse.  The diary was admitted for impeachment purposes.  Because the Defendant moved for the admission of the diary, the SCOV rules that its overall objections to the admission of the diary must fail. 

In other words, Defendant’s real issue is with the trial court’s allowance of any mention of the diary, but the SCOV rules that trial court’s initial ruling was correct.  The State could ask and victim could testify that she kept a diary so long as its contents were not discussed.  Defendant then chose to use the diary to dispute some of Defendant’s characterizations, but it came with the double edged sword that Defendant effectively put the diary into evidence and thereby completely thwarted his larger argument.

With that Defendant’s last argument is dismissed, and so is his appeal.  Defendant’s objective of obtaining a retrial, where he would appear alone, fails. 

Shocking, it isn’t?

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