Friday, April 29, 2011

Guess Who Is Coming After Dinner?

State v. Meyer, 2011 VT 43

Pity the poor tattoo artist.  Is there any other profession where a white supremacist feels comfortable to approach you about helping him touch up his various symbols of white pride?  

That is exactly what happened to the complaining victim of today’s case.  Defendant approached him about touching up his tattoos, which were apparently starting to fade (perhaps Hitler’s mustache was not as vibrant as it once was).  Artist to his general credit refused to have anything to do with Defendant’s racism and turned him down.

Still, it had to have been less than a complete surprise when Defendant showed up on Artist’s doorstep, staggering drunk, with a desire to come in for a visit.  Artist, who was no more receptive to Defendant’s elusive charms after Defendant’s consumption of a bottle of vodka, asked him to leave.  Defendant met him halfway and returned to his car where he blasted some tunes for the neighborhood.  Artist, who along with his girlfriend and two-year old daughter, had been asleep, was not satisfied and told Defendant to leave or he would open fire with his gun.  Turns out that Artist did not actually own a gun, but he did have a kitchen knife at the ready.  In response, Defendant started doing donuts in Artist’s yard, speeding around until he slammed into the corner of Artist’s mobile home, where the two-year old was sleeping, knocking the home off its foundation.  Bravely, Defendant sped off to his mom’s house where he ditched the car, ran into the woods, and shut himself inside a camper.

In the meantime, Artist had called the police, who quickly found the vehicle and had Defendant in custody.  Defendant, a member of the self-proclaimed master race, went peaceably until noticing that the officers were actually going to arrest him and were not merely walking him around the property in handcuffs until he felt better.  Defendant took this as a sign to begin his struggle against oppression.  Given the awkwardness of transporting an unwilling grown man across the ice, one officer fell and jammed three fingers.  Later in the trek, Defendant’s violent thrashing and kicking pushed another officer backward.  No serious injuries, and Defendant, while barely able to stand, was soon processed. 

Defendant was charged with 11 counts, which ranged from DUI (third offense) to attempted murder.  In a pre-trial motion, Defendant sought to block the testimony of a bar patron who had gotten into an argument with the visibly intoxicated Defendant, which ended with Defendant calling the witness a “spic” once the witness’s mixed race heritage came out.  Defendant sought to block this on the grounds that it was not relevant and that it was far more prejudicial than probative.  This argument puts us back on familiar grounds of Rule of Evidence 401 (relevance) and 403 (Prejudice).  The State argued that the evidence should be allowed because it helped show Defendant’s intoxication, and his racial motivations for the later assault (Artist’s daughter was known to have a black godfather).  The trial court ruled in favor of the State.  This left Defendant fearful that the State would make an issue out of his racial intolerance, and his attorney raised the issue to potential jurors during jury selection.

On appeal, Defendant argues that the trial court erred in this ruling and should have disallowed this evidence as prejudicial.  The SCOV is not entirely insensitive to Defendant’s situation, but it affirms the trial court on two bases.  First, the prejudice analysis is a close call, but giving deference to the trial court, the SCOV notes that the evidence of Defendant’s racial epithet was relevant to the later crimes and was not submitted just to “provoke horror or punish the defendant, or to appeal to the jury’s sympathies.”  In fact, given that Defendant’s tattoos were visible, that he testified about his racial beliefs, and the Artist testified about Defendant’s prejudices, the “spic” comment was pretty minor. 

The SCOV does chide the trial court from making the ruling so far in advance of the trial.  In line with its other recent cases, the SCOV is encouraging trial courts to either delay pre-trial evidentiary rulings or limit them to what is absolutely necessary.  The reason is clear here and is, ironically, the second basis for the SCOV’s decision.  Despite the State’s initial intent to use the “spic” incident, it did not ultimately use that particular witness or the racial motivation theory in its presentation of the case.  So the issue could have been avoided if the decision had been put off to the point when the testimony turned to the particular issue.  As the SCOV notes, such a delay might have allowed the parties more flexibility and the trial court to make a more specific and nuanced ruling based on the evidence as presented.  Of course, this might have discouraged the State from pouring resources into a witness that was not guaranteed to testify, but this discussion is more dicta than specific instruction since the SCOV finds no error and upholds the trial court.

After the close of evidence, Defendant’s counsel had several objections to the jury instructions, which he articulated in detail to the trial court during the charge conference, but only by general reference in open court. 

By this time, such an oversight should set off red flags, sirens, and a revolving blue light.  Rule 30 of criminal procedure says that if you want to object to a jury instruction, you have to do it in open court, with specific detail, after the judge has read the charge, but before the jury has begun deliberations.  The point of this is to give the trial court one final chance to correct an error (thereby saving time on appeal) and to preserve your specific objections for the record.  Here, Defendant failed to do so, which means the SCOV will review these arguments only for plain error—a hefty burden for even the most glaring of mistakes.  In reciting this standard, the SCOV repeats that it will always hold defendants to this high standard if there are not specific objections made in court after the charge has been read.  This is true even if the trial court assures the Defendant that the objections are noted or if Defendant has raised them repeatedly during the trial.  If you do not follow the objection process, says the SCOV, you are going to have to prove plain error on appeal, and that is a situation you want to avoid.

Under this elevated standard, the SCOV shoots down Defendant’s arguments one by one. 

Defendant’s first jury charge argument, however, is doomed from the start.  His position is that the trial court should have charged the jury with the lesser included crime of simple assault as an alternative to the aggravated assault charge.  The term “lesser included crime” is a term of legal art.  It refers to crimes that can be coupled with other, more serious crimes as a lesser alternative. 

The key is that all of the elements of the lesser crime must be part of the greater crime.  If the lesser crime has an element that is not included in the greater crime, then the crimes are separate and may be charged together but not as an alternative for each other.  For example, murder in the second degree is a lesser included crime to murder in the first degree because all of the elements of second degree are included in first degree, along with the element of premeditation.  Thus, if the State can prove that a defendant committed all the elements of a murder, but the jury does not find premeditation, they can convict the defendant of the lesser crime without having to start over from the beginning.  Lesser included crimes are hedges.  Depending on the quality of the evidence either side may seek to have a lesser included crime to give the jury an out.

The problem here is that the lesser crime has a separate element that distinguishes it from the greater crime.  Simple assault requires the defendant to act “purposely, knowingly, or recklessly” in causing the injury.  Aggravated assault, as charged here, does not require such intent but rather requires him to have acted “with intent to prevent a law enforcement officer from performing a lawful duty.”  Different elements, different crimes, and there is no error in omitting simple assault as a lesser included.

Defendant’s next argument concerns the mandatory inference that the trial court gave to the jury concerning the intent element of the aggravated assault charge.  In its instruction to the jury, the trial court stated that people normally intend the consequences of their actions, and that without compelling evidence from Defendant, the jury could infer from Defendant’s thrashing, violent, disruptive, and berserker behavior that he intended to prevent the law enforcement from doing its job.  In other words, he acted therefore he intended the consequences of his actions—unless there is proof that he did not foresee the consequences.

Upon review, the SCOV finds a serious problem with the charge.  It basically allows the State to prove the element of intent by showing only a defendant’s actions.  It also puts the burden of proof on defendant to prove otherwise.  Such language has specifically been struck down by the United States Supreme Court, and it has previously been deemed an automatic error by the SCOV.  Here, though, the SCOV breaks with prior case law to till new ground. 

While the SCOV recognizes the error generally created by a mandatory inference in a criminal case, it is unwilling to classify them as automatic errors.  Instead, the SCOV instructs that it would rather address circumstances individually and determine the level of error before ruling whether it is reversible or not.  In this case, for example, the SCOV concludes that the instruction is error, but it is not plain error.  This is because Defendant never contested the element of intent or the evidence supporting it at his trial.  He only challenged the nature of the officers’ injuries.  Thus, the improper instruction does not matter because it did not materially affect the outcome of the trial or prejudice Defendant since he did not materially contest or offer evidence on this issue.

To get to this point, though, the SCOV has to overrule its prior decision in State v. Martell, 143 Vt. 275 (1983), and turn such analysis into a case-by-case review.  So defense attorneys take note.

Defendant next argues that he should have had a diminished capacity defense to the aggravated assault charges based on his massive intoxication that night.  Such a defense, which nullifies the element of intent when the evidence shows that the person was incapable of forming such thought, is available to people who ingest large amounts of drugs and alcohol, but not necessarily.  The SCOV does not even try to determine whether such a charge was proper but simply notes that since Defendant never specifically contested this element of intent in his assault charges, it is not plain error because it did not prejudice his defense. 

The final jury instruction argument concerns the necessity defense.  According to Defendant, he should have been excused from the charges surrounding his fleeing the scene because he “needed” to get away.  Baloney says the SCOV.  You did not need to run, except to escape the trouble you created. 

In the last section of the opinion, the SCOV quickly handles Defendant’s last two arguments.  First, it denies his argument that the information laying out the charges and their factual basis was insufficient as a matter of law.  The SCOV finds the information to be more than adequate and gave Defendant full notice of the charges he would be facing.  Second, the SCOV reject Defendant’s argument that his assault of the police officers should not count because they were not injured.  The SCOV disagrees.  Defendant’s acts may have inflicted only minor, temporary discomfort, but that is enough.  You do not kick police officers in the shins while they are in the line of duty.  Case is affirmed.

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