State v. Mead, 2012 VT
36.
Let’s face it. When
you are on the wrong side of a State
v.____ ticket, chances are you have done (or at least been accused of
doing) something dumb. Many journalists
make a healthy living pointing this out over and over again. More bloggers do it for free.
Today’s Defendant provides the case in point. In 2009, Defendant attended a summer house
party in Burlington. Also attending the
party was Defendant’s ex-girlfriend/mother-of-his-child and her new
boyfriend. Defendant took the
opportunity of a public social situation to try to reunite with his
ex-girlfriend and began trying to engage her in various conversations about
getting back together. Ex-girlfriend was
apparently not persuaded by Defendant’s repeated rhetorical approaches.
During the course of Defendant’s failed colloquy attempts,
he decided to get the 9mm from his car and tuck it into his waistband. Shortly thereafter, the ex-girlfriend, her
boyfriend, and other friends went into a room to get away from Defendant. Boyfriend slammed the door in Defendant’s
face.
Defendant, quite unhappy with this turn of events, demanded
to be let in, informed his hosts that he was no longer playing around, and
cocked the gun. Boyfriend opened the
door, and Defendant pointed the gun at boyfriend. Boyfriend smacked the gun away. Defendant ran down the hall, stopped, and
fired two shots. They missed, and
another guest tackled Defendant.
Defendant fired another shot.
Boyfriend began punching Defendant who fired another shot. Defendant wriggled away and ran outside. Boyfriend in a fit of bullet-proof pique ran
after him. Defendant aimed and fired
twice at boyfriend, but the gun did not fire.
Defendant was arrested and charged by the State with
attempted first-degree murder. Defendant,
of course, disagreed—this was a dumb series of decisions (no doubt aided by the
party’s social lubricants), but it was not an attempt to murder.
Based on the facts above, the question for the jury was not
whether Defendant did what he did, but whether he meant to kill boyfriend
and/or girlfriend.
At trial, the jury disagreed with Defendant’s position, but
they also rejected the state’s premeditated argument and convicted Defendant on
the lesser included charge of second-degree murder. The verdict rendered by the jury indicates
that they believed he intended to kill in the heat of the moment but did not
plan the attempted killings. Defendant
appealed.
On appeal, Defendant raised four issues, which all centered on
the conduct of his trial. The SCOV has
no trouble rejecting three of the four as either non-errors or minor ones that
did not alter the outcome of the trial.
The last issue, however, sparks a minor disagreement between the
justices.
Defendant’s first claim of error stems from the fact that a
police officer involved with the investigation spoke with a juror during trial.
Here is what happened.
The prosecution’s first witness was the Police Lieutenant who secured
the crime scene and did some of the initial site work. Her testimony was fairly factual and
straightforward. It did not involve
interviewing witnesses or making judgment calls. After her testimony the officer was walking
on Church Street and recognized a friend of a friend. The two struck up a conversation about the
dumplings the friend of a friend was eating.
When the friend of a friend said that she had a new appreciation of the
officer’s work, the officer suddenly realized she was speaking to a juror. The officer ended the chit chat immediately
and presumably reported it to the prosecution who informed the trial court
prior to sentencing.
Contacting a juror before a verdict by either side is a big,
big no-no, but the question is whether it violated Defendant’s Constitutional
rights such that a mistrial was mandated.
Following discovery of the evidence, the trial court held a
hearing where the officer related the facts above, and the juror stated that
she was not influenced by her conversation and did not believe the prosecution
more because of her new appreciation of the officer’s job.
This is good enough for the SCOV to reject the Defendant’s arguments. Because the officer was a minor, primarily
factual witness, because the conversation was innocuous, and because the juror
admitted no bias as a result, the extraneous influence was insufficient to
warrant a mistrial. The SCOV does take
some pains to distinguish the facts here from a case
decided earlier this year where the extraneous influence, while minor, was
relevant to the core issues of the case and inherently affected or had the
strong likelihood to affect the verdict.
Here there was no likelihood, and by extension, no mistrial.
Chalk one up to the small social circles of Vermont.
Defendant’s second argument concerned the testimony elicited
from the ex-girlfriend and others that detailed Defendant’s long, obsessive,
and hyper-controlling relationship with the ex.
Defendant’s main objection is that these prior bad acts,
which included accounts of throat-grabbing and micro-managing of
ex-girlfriend’s free-time, were not relevant or admissible to prove a charge of
first degree murder.
The SCOV disagrees.
True, prior bad acts are generally inadmissible, but there are
exceptions. The evidence is admissible
under Rule of Evidence 404(b) because it shows motive and intent. Since
motive and intent were the primary issues in this case, the trial court
properly allowed this evidence to the jury.
Furthermore, the trial court also conducted a Rule 403 analysis to
determine that its probative value outweighed the prejudice to Defendant. Since the trial court minded the procedure
and ruled clearly on both the Rule 404(b) and Rule 403 analysis, the SCOV will
give discretion to the trial court’s specific findings.
Defendant’s third argument concerns the jury charge. The charge did not require the jury to
determine which shots they based their verdict upon. The Defendant argues that this ambiguity
undermines the requirement of jury unanimity because it is possible that some
jurors convicted Defendant based on the first shots fired in the house while
others voted based on the misfires outside.
Nonsense says the SCOV.
First, Defendant did not object to the jury instruction. So the SCOV reviews this under the plain
error rule, which mean that Defendant’s burden is steep. Second, the various shots constituted a
single event and did not require the trial court to specify as neither the
state nor the defense contended that the shots were somehow different. In others words, it was one big event, and
the jurors did not need to split hairs over which shots were criminal and which
ones were not.
Defendant’s last argument is the one that give the SCOV the
greatest amount of trouble in this case, which is not to say a great deal of
trouble, but it exposes a difference of degrees between the justices.
Defendant’s final objection is to the admission of his
testimony that he gave at a Relief from Abuse hearing that the ex-girlfriend
requested after the shooting incident.
During that hearing in family court, Defendant was unrepresented and was
not warned by the court that he had a right not to self-incriminate and that
anything he said could be used against him in his eventual criminal trial.
The SCOV reviews this issue for plain error because
Defendant did not raise it to the trial court, and finds that it does not rise
to a level requiring the SCOV to vacate and remand. Particularly, the SCOV notes that Defendant’s
testimony at the hearing was essentially the same version of events that he
gave at trial. He admitted shooting, but
he claimed it was an accident and that he did not intend to shoot anyone. While this may have had a cumulative effect,
it did not create substantial prejudice.
Setting that aside, the SCOV takes up Defendant’s main beef that
the admission of the hearing tape included the skeptical responses that
Defendant received from the family court judge.
The problem here is that a jury is likely to be swayed by the statements
or positions of a judge. By playing the
family’s court’s response to Defendant’s nearly identical testimony, the trial
court was allowing the jury to be improperly swayed by the authority of the
judge.
Here is where the SCOV splits slightly. Writing for herself and Justice Dooley,
Justice Skoglund agrees with the Defendant that the admission of these judicial
responses and statements were improper and should not have been admitted. Writing as a concurrence, the two justices
state that such admissions are always in error.
The majority does not go that far.
It reserves judgment on this issue and simply skips to the next step of
the analysis on which all five justices agree.
Instead of determining whether the admission was in error,
the majority, joined by the concurrence, looks to see if the judge’s statements
made a difference in the verdict. In this case, they did not. Defendant’s testimony at trial was
effectively cross-examined and undermined so thoroughly that the family court
testimony was cumulative and not determinative of the outcome. A united SCOV rules that even if the family
court hearing had not been played, the outcome would have been the same.
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