Monday, October 10, 2011

Double Secret Indemnity


State v. Wetter, 2011 VT 111.

There are times when art imitates life, but there are also times when life, in its messy, awkward, sprawling nature seems to imitate art.  And then there are cases like today that reads like a second-rate Lifetime movie as imagined by the Cohen brothers.


Defendant did not like her husband.  In fact, Defendant hated him and wanted him dead.  Not content to pray for an early demise, or to serve him saturated fats and cholesterol-laden food and wait until his health worsened, Defendant sought a more proactive approach.  She had her daughter call friends to see if they would be interested in killing the husband.

Surprisingly, the daughter’s friends were not interested, and one of them turned informant to the police.  The investigating detective had the friend call daughter on her cell phone.  While the detective sat silently taking notes, the friend, using speaker phone, told the daughter that she had found someone who was interested in taking the job.  Defendant, apparently, was with daughter and would chime in on the conversation from time to time and tell the friend “to get one.”  One, in this case, meaning a willing hitman who would off husband for a reasonable price.

Three days later, the detective, now pretending to be an out-of-state hitman met with the daughter at a hotel.  Defendant was supposed to attend, but at the last minute, backed out and just dropped off the daughter. 

At their meeting, our undercover detective told the daughter that he would off dad for $20,000.  Daughter said it would have to be on contingency because Defendant would not have any money until after the murder.  The undercover detective agreed to meet again and work out the future details.  He then drove daughter home.  On the way home, daughter began to suspect that her “hitman” was in fact a police officer.  The record does not indicate if this was due to his use of a marked patrol car, which he tried to play off as “can you believe this was the last car on the Hertz lot,” or more subtle observations on the daughter’s part. 

Regardless, daughter’s suspicions led Defendant to quickly break off the deal.  When detective tried to follow up on the hotel meeting, daughter indicated that the deal was “just over” and ended at the hotel.

Defendant was arrested and charged with three counts of attempting to incite a felony and one count of conspiracy.  A jury found her guilty on all four counts. 

On appeal, Defendant raised three issues attacking her conviction.

First up, Defendant sought to block the detective’s testimony concerning what he learned by eavesdropping on the phone call between the daughter and her friend.  The SCOV rejects this argument as unreasonable.  Phone calls, despite what they show on television, have a very limited scope of privacy that either the federal or state Constitution will protect.  Simply put, there cannot be an expectation of privacy when a police officer listens to a conversation next to a party that has put the phone call on speaker.  Wiretapping, sure, that deserves protection because no one expects a third party to be monitoring phone lines, but it is common for those on the other end of a phone line to expose our conversations to any number of people—often without our knowledge.  The fact that daughter’s friend brought a police officer into the room was her choice and Defendant’s expectation to the contrary was unreasonable and not sustainable as a constitutional right.  So be careful who you call up with your criminal conspiracies.  There is no guarantee or protection against her brining an officer of the law along on speaker. 

Next Defendant tried to argue that the trial court erred in failing to instruct the jury on the renunciation defense.  This defense allows a potential criminal to escape liability if he can show that he took actions designed to prevent the crime being committed and made positive statements to one or more parties that he would not participate in the crime. 

The problem here, as the SCOV finds, is that Defendant never took steps to prevent the crime from occurring and never used the necessary language indicating a plan to not participate in the crime.  The evidence is that Defendant and daughter got spooked by the detective and decided to engage in a little bit of self-preservation.  None of this would effectively prevent the crime or indicate a repudiation of the crime.  It is, at best, a mere change of plans caused by rightful paranoia of police investigation.  As such, Defendant’s actions and statements do not even reach the factual threshold needed to claim this defense, and the trial court was correct to refuse to give it to the jury.

The last argument from Defendant centered on post-trial evidence.  Defendant claimed she had a right to a new trial because Defendant’s sister had told Defendant, after the trial, that Defendant’s daughter had been coerced into testifying with a plea deal that let daughter keep custody of her young child.  The SCOV is not receptive to this final point.  The evidence is merely impeachment material, which could have been used to put daughter’s motives for testifying into question.  But it does not go to a central issue in the case.  It does not put any of the charges or their material facts into question.  Therefore, the SCOV will not engage in a “what if” session to revive Defendant’s claims. 

So Defendant goes to prison.  Husband gets a break from the unilateral War of the Roses, and daughter keeps her child.  Anybody want to start the screenplay draft?

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