Wednesday, February 27, 2013

Not Taking Any Chances

By David Rangaviz

State v. Vuley, 2013 VT 9

“The man who wins the lottery once is envied; the one who wins it twice is investigated.”

In criminal trials, the presentation of evidence to the jury is governed by certain rules.  These evidentiary rules often keep highly relevant information away from the jury, typically because the evidence is either somehow unreliable, unfair to the defendant, or confusing to the jury.

One such rule bars what is referred to either as propensity or character evidence.  Under this rule, the prosecution cannot admit evidence of a defendant’s other bad acts—as in, not the act the defendant is on trial for allegedly committing—to show that he has a certain character trait or propensity (for committing crime).  The theory behind the rule is that the prosecution should have to show that the defendant committed this crime, not have the bar effectively lowered by the admission of evidence of the defendant’s prior bad acts.  Also, these prior bad acts might poison the jury against the defendant, and send the trial down any number of rabbit holes if the defendant disputes that he committed each individual prior act (turning each trial into an endless criminal version of This Is Your Life).

The Evanescent Drunk

State v. Dubuque, 2013 VT 3.

Today’s criminal defendant is a winner in the creative-arguments-to-suppress-evidence arena.  Defendant was driving drunk on Interstate 289 in Essex at approximately 8 in the morning when he flipped his car over.  The officer who was called to the scene arrested defendant and accompanied him in the ambulance to the hospital.

A “Bad Road” To Go Down

By David Rangaviz

State v. Hawkins, 2013 VT 5

Sometimes when you read a decision, you can feel the court reaching for the result.

Most often, this feeling manifests itself in one of two incongruities: (1) making bad law from hard facts (because the unique facts seemingly demand an outcome that the law is somehow ill-equipped to address); or (2) writing good law, in a case to which this new legal rule does not even appear to apply.

Today’s decision is the worst of both worlds—bad law applied to the wrong defendant.  As covered by the Burlington Free Press, in today’s decision the SCOV writes a “bad roads defense” into Vermont’s criminal law concerning motor vehicle operation.  From now on, it seems that a criminal charge of negligent motor vehicle operation cannot be supported solely by a driver’s decision to drive in bad road conditions.  As a lifelong Vermonter, I tend to think this rule of law, stated in the abstract, makes good sense.  But in practice, it seems nearly impossible to apply.

Easement Rider

Farrell v. Vermont Electric Power Co., 2012 VT 96
Welcome to our new regular feature, Ask the SCOV.  Today’s letter comes from a property owner in South Burlington.  He asks:

Dear SCOV,

Does a permanent easement ordered in the context of one project apply to future projects when there is no mention of the first project in the easement? 



Well, it seems our letter writer sent his question straight to the Court and got the following response:

Friday, February 8, 2013

Truth or Consequences

In re MA, 2012 VT 103 (mem.).

We have said it before, family law, particularly where a child is involved, is often the most depressing field of law with few winners and multiple losers. 

Today’s case is of a piece. 

Unsatisfactory Discharge

State v. Nolen, 2012 VT 106.

Today’s case is a brief but interesting foray into the world of probation. 

Defendant was convicted of the misdemeanor charge of negligent operation of a motor vehicle.  He received a 9-to-10-day sentence, but all of it was suspended, and he was put on probation for several years.

One year later, the Department of Corrections sought to have Defendant unsatisfactorily discharged from probation because he was not cooperating with the Department and the terms of his probation.  He failed to complete his treatment and mental health programs and would not avoid the victim of his crime (both conditions of his probation).  Defendant further was uncooperative in setting up probation appointments and had a host of medical ailments that kept him from attending most of the meetings (paragraph 2 of the decisions lists these numerous, serious conditions).

Slippin’ Thru My Fingers

In re DC, Juvenille, 2012 VT 108.

Some years end better than others.  Few people seem to lament the passing of 2012, which seemed on the whole to be a mean, rotten year that most of us were content to grind out with the hope that it would end soon. 

The SCOV does not appear to have had it any better as the end of the year brought a series of cases involving children-in-need-of-care-or-supervision (CHINS) for it sort out.

As we have previously noted, these type of case invoke some of the “most sensitive and human questions of law the legal system must address.”  Today’s case is no different.

Thursday, February 7, 2013

Newly Discovered Evidence on Aisle Five

State v. Bruno, 2012 VT 79

The facts of today’s case stand in stark contrast to the idyllic village scenes and pastoral country sides that most people associate with Vermont.  For starters, Defendant sold the victim forty dollars’ worth of heroin on credit, and the victim promised to pay him back.  

A few days later, Defendant was still waiting for his money, but not very patiently.  Defendant started calling the victim’s home, cursing at the victim and his family, and, eventually, making threats.  The victim’s father called the police, who came to investigate.  Defendant, obviously blessed with the gift of impeccable timing, called the victim’s residence while the police were on the scene.  The victim’s father handed the phone to the police, who spoke directly to Defendant.  No surprise, Defendant stopped calling.

Several days later, Defendant–high on crack cocaine and shopping at the local Walmart–spotted the victim as he and a friend were visiting a nearby bank.  An argument ensued and, at some point, the two ended up behind the Walmart fighting it out like men—mano y mano.  

Unbeknownst to the victim, Defendant brought a knife to the fist fight.  According to the eye-witness testimony at trial, the victim threw the first punch, but Defendant threw the last.  Sadly, Defendant didn’t punch the victim at all; he slashed through the victim’s throat with his knife.  The victim ran from the scene clutching his neck, but died in his friend’s arms minutes later.

Wednesday, February 6, 2013

Upping the Ante

In re Application for Search Warrants, 2012 VT 102.

Here is the problem facing the SCOV in today’s decision.  A search warrant for specific information on a computer runs the risk of exposing much more that the warrant intends. 

This is because computers are our personal panopticons that effectively watch and preserve our every move.  Every on-line step we take leaves a record, and when we think we have deleted the information, the browsing history, it is usually still there. 

In this digital age, a lot of personal, mostly-legal, potentially-embarrassing information can always be found on our computers, and we have an interest in keeping this information private.  (As a professional, I do not want anyone to know about my extensive Fall Guy fan fictions—particularly the ones where Colt and Jody totally take it to the next level.) 

Custody Battle

By David Rangaviz

State v. Tran, 2012 Vt. 104

I probably don’t need to tell you what the Miranda rights are.  Since 1966, the American public has had this list of rights imprinted on their brains by years of police procedurals and action movies.  Ask a non-lawyer to spout off the list and they’ll jump right into their best Andy Sipowicz impression: “You have the right to remain silent, and anything you say can and will be used against you in a court of law.  You have the right to an attorney, if you cannot afford an attorney, one will be appointed for you.”

The Miranda decision, however, did not actually establish these rights.  Instead, Miranda created a prophylactic requirement that police officers must always tell you that you have these rights when they take you into custody, the logic being that the circumstances of interrogation are inherently coercive and involve pressures that compel a suspect to speak, such that a preliminary warning is necessary for adequate protection of the underlying rights.  Suspects should have an unfettered and informed choice between speech and silence.  Miranda protects this choice.

Tuesday, February 5, 2013

Be More Specific With Your Remedies, Please

Vt Small Bus. Development Corp. v. Fifth Son Corp., 2013 VT 7.

Ever wondered what happens when a commercial landlord locks a tenant out of its business without the right to do so?  Today’s case should more than satisfy your curiosity while simultaneously illustrating the importance of specifying remedies for default in your lease.

In January 2009, landlord and tenant signed two separate two-year leases, for a restaurant and condominium.  For a little over a year, tenant operated “Miguel’s at Sugarbush” in the restaurant space, and occasionally stayed in the condo.  Tenant borrowed money from the Vermont Small Business Development Corporation (VSBDC) to fund his business.