Monday, December 2, 2013

It’s all in the way you look at it . . .

In re Hoch, 2013 VT 83

Today’s case begins several years ago when Petitioner was charged with aggravated stalking based on his surreptitious viewing and photography of a thirteen-year old girl in her bedroom.  After the arrest, the police got a warrant and searched petitioner’s house.  That search led to five counts of possession of child pornography. 

Following his arraignment, Petitioner filed a motion to dismiss the aggravated-stalking charge on a theory that the State can’t make a prima-facie case, arguing that the stalking statute required contemporaneous fear or emotional distress on the part of the victim.  The trial court denied the motion.  Petitioner filed a motion to suppress the incriminating evidence, which the trial court also denied. 

Subsequently, Petitioner pled (or “pleaded” depending on your pedantic preferences) guilty to one count of aggravated stalking and two counts of child pornography.  He received a mostly suspended sentence but violated his probation and ended up in jail. 


From prison, Petitioner filed a petition for post-conviction-relief (PCR).  He was appointed attorneys who helped him amend the petition, which argued that there was no factual basis for the court to accept Petitioner’s guilty plea on the aggravated stalking charge because—as argued in his initial motion to dismiss—there was no contemporaneous fear or emotional distress.  The petition also argued ineffective assistance of counsel because Petitioner’s trial counsel: (1) failed to challenge the initial stop that led to his arrest; (2) failed to request a hearing on his motion to suppress evidence; (3) allowed him to plead guilty to multiple counts of child pornography; (4) failed to preserve a right to appeal his plea; and (5) failed to engage a camera expert.

The State filed a motion for summary judgment, arguing the opposite—that petitioner’s trial counsel was not ineffective. 

In two orders,” the trial court granted the State’s motion with respect to four of the five claims of ineffective assistance of counsel and scheduled a hearing on petitioner’s claim that counsel was ineffective for failing to seek a hearing on his motion to suppress.”  After a hearing on the surviving ineffective-assistance-of-counsel claim, the court granted Petitioner’s PCR petition.

The State appealed, arguing that a lack of contemporaneous fear did not invalidate the charge of aggravated stalking.  Petitioner cross appealed on the faulty-investigatory-detention issue. 

The SCOV first considers the trial court’s decision to vacate the aggravated-stalking charge.  The trial court’s reasoning was apparently based on a change in the language of the statute (after petitioner was charged) that eliminated an apparent need for contemporaneous fear on a victim’s part.  Ergo, the legislative change must have been to correct that problem, and petitioner couldn’t have been convicted under the statute as it existed at the time of his conduct. 

Makes sense in a way, right?

Wrong. 

The SCOV doesn’t see it that way.  As the SCOV explains:  “No language in the aggravated stalking statute requires that the victim’s fear or emotional distress be contemporaneous with the stalking conduct.  Its terms suggest no such concurrence is required.” 

In other words, simply because there was a legislative change does not mean that the old statute should now be read to require contemporaneous fear where its language does not indicate this element.  Elementary logic, Watson, post hoc, ergo propter hoc—simply because one follows the other does not mean that the other caused the one.

And so the SCOV reverses petitioner’s vacated conviction and reinstates it. 

Moving to Petitioner’s claims concerning his initial detention, a few facts are necessary.  The victim’s dad was relaxing in his backyard hot tub at about 9:00 p.m. when he saw Petitioner skulking around and looking in his daughter’s bedroom window.  victim’s dad also happened to be an off-duty police officer.  He went inside to get changed and saw Petitioner look in the daughter’s window a few more times.  He got a good look at Petitioner. 

Dad went outside.  Petitioner got in his car, drove up the street, turned around, and headed back toward the house.  At this point, dad stepped in the road and stopped him, inquiring as to Petitioner’s activities.  Petitioner claimed he was looking for a dog that he’d hit with his car.  Needless to say, dad was not satisfied with this story.  He then told Petitioner he was a police officer and asked for identification.  Dad knew his wife had called the police, so he asked petitioner to get out of the car and wait.  At one point, Petitioner tried to start the vehicle and leave, and dad bopped him on the head with a flashlight.        

The police showed up a few minutes later, arrested Petitioner for trespassing.  When they searched him, they found latex gloves and a digital camera.

The argument below and on appeal is that trial counsel was ineffective for not filing a motion to suppress based on these facts.  The argument was rejected below due to petitioner’s inability to show prejudice—there was no likelihood of success on that motion, the trial court reasoned, because dad was acting as a private citizen and not as a police officer during the initial detention, which was based on reason to believe Petitioner had committed a felony.     

The SCOV largely agrees, reasoning that until dad identified himself as a police officer, he was acting just as any other private citizen would be entitled to, not as a state actor, and there would be no Fourth Amendment violation. 

After petitioner’s story didn’t add up, the brief detention was justified based on a reasonable suspicion of wrongdoing, even though dad was now acting as a police officer.  Petitioner argues that the use of force and length of detention turned the encounter into a de facto arrest, but the SCOV rejects that argument, noting that the entire detention took about three minutes.  The bop-on-the-head-with-a-flashlight piece was reasonably necessary under the circumstances to stop petitioner from fleeing.  Anyone who listens to Parliament would know this about the Bop Gun.

And so Petitioner’s victory on the elements of his conviction is short lived and negated. Summary judgment for the State, and the petition is dismissed. 


So, it’s all in the way you look at it: Petitioner’s argument that contemporaneous fear was required was certainly plausible, and the trial court agreed, but at the end of the day, the SCOV doesn’t see it the same way and the sun sets on petitioner’s PCR petition.  

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