Wednesday, May 25, 2011

The Good, the Bad, and the Unpreserved


State v. Lampman, 2011 VT 50 (mem.)

Defending a criminal trial is one of the more difficult tasks in the law.  More so than any other area, the defense attorney must be prepared to head off challenges from the State’s Attorney, unruly witnesses, and the judge when he grows tired of a witness who takes the opportunity to perjure himself on the witness stand.  Yet, the system requires a defense attorney to rise to the occasion throughout the trial time and again, and not only make strategic decisions to win over the jury, but to preserve all objections for the appeal to the SCOV.  It is a moiling task that is akin to reciting the Declaration of Independence while patting your head and rubbing your stomach. 

But let us begin with the facts of today’s case.  It begins as most criminal cases do, with love.  Amy (the heartbreaker) dated Victim in this case for two and a half years, but broke up with Victim to take up with Defendant.  This did not sit well with Victim who apparently sent threatening text messages to Amy and Defendant.  Nothing came of this until one day nearly a year later when Amy, Defendant, Amy’s son (Nathan), and Anthony began following Victim around in Defendant’s truck.  The tailing lasted only briefly because soon everyone stopped at a gas station and decided to have it out Hell’s Angels-fashion with a four-on-one stomping.  The beating was crowned by Defendant’s “football-style kick” to Victim’s head. 

There is kind of a Montague and Capulet thing going on here.  The record leaves a few questions unanswered.  Were Defendant and her posse actually following Victim or did they all happen to converge on the site?  Was the beating a coordinated plan or merely a spur of the moment thing?  Did the other witnesses participate in this beating?  And who is “Anthony?”

For the last question, I like to imagine Anthony as a happy-go-lucky spirit in a Def Leppard t-shirt, who does not need any instructions on how to rock or assist in a felony assault.  That may just be my personal version, but it is inspired by the SCOV’s decision to use only the first names of all the witnesses, and to provide only the roughest sketches of the party’s relationships. 

Following the beating of Victim, Defendant was arrested and charged with simple assault.  A jury, after a one-day trial, returned a guilty verdict and Defendant appealed her conviction for errors.

When defendants appeal their conviction for error, they are basically saying that the trial court made a mistake and this mistake led or forced the wrong outcome.  These mistakes come in roughly three types.  There are pre-trial errors that concern the admissibility of evidence or the ability of a defendant to make certain arguments at trial.  Then there are  during-trial errors revolving around the admission/denial of testimony/evidence.  Finally, there are errors made in the instructions that the judge reads to the jury.  The key to each, as we have seen over and over again, is that a defendant must make a formal objection to any of these errors at the right time or lose the right to raise them on appeal in any substantial manner. 

In this case, Defendant alleged three errors—one from each of the above-described categories.  Defendant’s counsel, however, did not properly object to any of them, and so the SCOV reviews them under the Plain Error Standard.  Plain Error occurs where the errors created exceptional circumstances, which resulted “in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant’s constitutional rights.”  It is no spoiler to tell you that none of Defendant’s arguments came close to meeting this standard and the trial court was affirmed on all points. 

It is hard not to wonder what the defense counsel in this case was thinking.  But let me suggest that such a mindset ignores the difficulties of trial counsel.  In this case, counsel was likely making her objections with an eye to the jury and the limited schedule (one day) that this trial had.  The errors that Defendant makes much of on appeal were probably blips that defense counsel either missed in the moment or made a strategic decision to ignore in light of another, seemingly reasonable strategy.  As lawyers, we try jury cases in the moment—we are not putting on evidence to build the record for the appeal but to persuade the impaneled jury.  It is only on a secondary level that we work to preserve some issues as a fall-back in case the worst happens.  The best triers can do these two tasks seamlessly.  The rest of us struggle.  That is not to excuse defense counsel in this case who appears to have missed some basic points of preservation, but it is to put such omissions into context.

The first error that Defendant alleged concerned a couple of Rosencrantz and Guildenstern characters to the main drama.  While Defendant and her crew were heading to the gas station dénouement, her friend Taylor was following behind in her own car that either did or did not contain Taylor’s boyfriend Cody.  According to Taylor’s testimony, Cody was with her.  But Cody, it seems, may not have been in the car with his girlfriend.  He may have been in the car with Defendant and her crew.  Then again, as he began to testify at trial, he may have suffered an acute case of idonotwanttotestifiyitis and was suddenly unaware of anything that occurred on the day in question. 

Let me give this public service message to any potential witnesses out there.  Testifying that you “do not know” or that “you do not remember” is the quickest way to discredit yourself to the jury or the judge.  Unless the examiner is trying to recreate a specific day from your infancy, you will not seem credible if you just shut down and claim amnesia—particularly if you are testifying to a substantial event such as the savage beating of an acquaintance.  This will only make you look like a fool and earn the enmity of the judge. 

That is exactly what happened in this case.  Cody’s waffling, contradictions, and memory lapses on the stand irritated the judge, who then began to question Cody himself and to state that Cody should think long and hard about his answers or risk perjury charges.  On appeal, Defendant argued that these questions and threats violated the judge’s impartial role and amounted to the judge entering testimony in violation of the rules of evidence.  The SCOV rejects this argument by noting that the threats of perjury occurred away from the jury, could not possibly have affected their decision, and did not go far enough to exercise duress on the witness as they were more frustration than calculated threat.  As to the judge’s questions trying to draw out Cody’s memory, these were within the scope of permissible questions that a judge may make during a trial and did not constitute outside fact-gathering.

Defendant’s second error came from another section of Taylor’s testimony where she recounted a conversation that she had with Nathan and Anthony.  During this conversation, the two told Taylor that they did not intend for her to witness the beating.  Defense counsel objected to this story as hearsay, meaning that it was a statement made by someone other than Taylor and was being offered to prove that Defendant and her pals intended and did actually assault Victim. 

The trial court overruled the objection by finding an implicit conspiracy between Defendant, Nathan, and Anthony to beat up Victim.  The import of this finding is that a conspiracy links the statements and actions of each of the conspirators to each other.  That means that any statement by Nathan or Anthony is treated like it came from Defendant’s mouth.  And because anything a defendant says against her interests (think confessions) is admissible, the story comes into evidence and goes to the jury.  Defense counsel did not object to this ruling or ask for a jury instruction to clarify that the conspiracy finding was limited to the evidentiary issues. 

On appeal, the SCOV is not friendly to this argument and musters several responses to support its rejection.  First, Defendant was not charged with conspiracy but assault, which does not include a conspiracy element.  Second, the failure to object in any form to this ruling really limits how much the SCOV is going to scrutinize the issues.  Third, the ruling was clearly an evidentiary issue that the jury likely had no problem distinguishing from its duty during deliberations.  And fourth, the trial court’s instructions to the jury were full, fair, and correct and left no doubt that all findings in the case rested with the jury.  Not to put too fine a point on it, the SCOV concludes by noting that whatever errors may have occurred, this case “is simply not one of the ‘rare and extraordinary cases’ where reversal is warranted on plain error grounds.”

Defendant’s next claim of error is that the trial court wrongly refused to allow Amy to testify about an incident that occurred five months after the beating where Victim allegedly expressed loving feelings for Amy and jealousy of Defendant.  The State objected on the grounds of relevance.  Defense counsel stated that it was intended to show that Victim’s “interests” had continued.  The trial court noted that the defense had not established the back story to link the line of questioning with anything Victim felt before and during the time of the beating, and it sustained the objection.  On appeal, the SCOV finds no problem with the ruling and wastes little time in affirming. 

Defendant’s penultimate claim of error was that the trial court did not allow her current girlfriend, Diane, to corroborate the existence of threatening text messages sent by Victim.  The problem was that Diane, perhaps suffering from the same disease as Cody, could not establish a foundation for her testimony because she could not remember when she saw the text messages or any other details that would show that she was familiar with the statements, reliably knew them to be from Victim, or give any substantial basis for her testimony concerning the contents.  The SCOV affirms this exclusion noting that the text messages got to the jury through Defendant’s testimony and the lack of corroboration from Diane did nothing to affect the outcome.

Finally, Defendant argued that the trial court erred in giving an accomplice liability instruction to the jury.  Defendant argued that the facts did not support this charge, that the parties had agreed not to include this charge, and that the charge omitted several essential elements. 

The SCOV never gets to Defendant’s arguments; instead, it dismisses this claim noting that defense counsel never objected to the charge in court, never objected after the charge was read, and did not argue the elements of plain error in her appeal brief.  Therefore, the objection was not preserved and the plain error was not raised. 

Collect your chips at the door, drive safely on your way home, and do not stop for gas if your ex is already there.

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