Saturday, May 3, 2014

Flawed Fixation (It’s just that one thing . . .)

State v. Whiteway, 2014 VT 34 (mem.)

By Andrew Delaney

When a statute provides a number of factors to consider, it’s important to avoid fixating on just one.

Defendant was charged with second-degree murder and held without bail. She received a weight-of-the-evidence hearing. The trial court decided to hold her without bail. She didn’t appeal.

A year later, she filed a motion for pretrial home detention. The pretrial home detention statute allows home confinement when a defendant is held in a “lack of bail” situation for more than seven days. It provides three areas for a trial court to consider in determining whether to grant such a motion: (1) the offense’s nature; (2) prior convictions, history of violence, medical and mental health needs, supervision history, and risk of flight; and (3) risks or undue burdens associated with the placement.

The Department of Corrections (DOC) evaluated defendant's proposed residence and found it suitable, provided a gun safe was removed. DOC basically said the assessment was beyond the scope of its duties and that the decision was really up to the court.

The proposed custodian testified and the trial court found her to be a reliable and suitable person. The court sua sponte (which is a fancy-lawyer way of saying “on its own motion”) solicited testimony from a DOC employee on the nature of the home-detention program. Based on the employee’s testimony, the court concluded that defendant might cut the GPS-monitoring bracelet with a pair of scissors, and be gone 36 hours before anyone would know she was gone. Hmm . . . interesting.

The court then looked at the factors. Second-degree murder is a serious, violent offense, and thus the court concluded, weighed against release.

The court found that even though there were no traditional “warning signs” as delineated in the statute, because second-degree murder is a serious charge and carries a potential penalty of life imprisonment, the defendant posed a serious flight risk. Hmm . . . more interesting.

The other occupants of the proposed residence weren’t afraid of defendant, but the court reasoned that—based on the court’s findings at the weight-of-evidence hearing—the public, including a third-party witness, would be in danger if defendant were to be released. The trial court further opined that defendant might cut off the GPS bracelet while her custodian was sleeping and abscond from the residence. Hmm . . . even more interesting.

Based on those findings, and an additional finding that the monitoring program wouldn’t reasonably assure defendant’s appearances at court hearings, the trial court denied the motion. Defendant appealed.

Defendant argues that the trial court abused its discretion in considering the nature of the offense in both the first and second factors. Defendant contends that the court simply considered the charge of second-degree murder in the abstract and failed to consider the specific nature of the offense—facts that she argues tend to show that the incident “was an isolated event inextricably intertwined with a complicated domestic situation and a unique set of circumstances virtually certain never to reoccur.”

Defendant also challenges the court’s nature-of-the-offense-alone-supports-a-risk-of-flight-finding reasoning. This reasoning, defendant argues, could lead to a risk-of-flight finding every time anyone is charged with a serious offense.

Defendant’s final argument is that the court’s finding on the last factor relies solely on a combination of findings from the weight-of-evidence hearing and the court’s own conclusion—not supported by the evidence—that defendant could cut her bracelet and try to take off.

The State counters with an argument that a request for home detention is the same as a request for bail review. Accordingly, because defendant didn’t appeal her bail review, there’s an analogous case, and game over and stuff. The SCOV points out that the case on which the State relies predated the home-detention statute.

The State also reads an unreported, single-justice opinion to mean that home detention is only an option for release on a motion for bail review, not a home-confinement program under DOC’s supervision. So, the State reasons, once a hold-without-bail order has issued, the trial court can’t “release” a defendant to home confinement.

The SCOV notes that its task is to interpret the home-detention statute and that it has no prior decisions on point. That said, the SCOV looks to the “unreported, single-justice opinion” cited by the State (look, I tried to find y’all a link, but I can’t; here’s the Westlaw cite—2012 WL 5974081) for guidance. The SCOV determines that the term “lack of bail” in the home-detention statute applies to defendant’s situation. The SCOV notes that the legislature intended to expand, not limit, alternatives to incarceration with the home-detention statute. Plus, even DOC’s own guidance document supports this interpretation.

The SCOV recognizes that this interpretation changes “the nature and standard of review in home detention determinations.” A trial court’s discretion to deny bail in cases punishable by life imprisonment is “extremely broad.” The SCOV notes that in home-detention determinations, the trial court has discretion, “but it must be exercised in accordance with certain standards.” The SCOV also notes, however, that in cases punishable by life imprisonment, the defendant essentially “has the burden to show that home detention should be ordered.”

The SCOV spends a few paragraphs knocking down the State’s it’s-really-a-bail-review-thing before it gets to the crux of this case.

The SCOV concludes that the “trial court’s decision in this case constitutes an abuse of discretion.” The trial court “did not properly consider the factors it was bound to consider under” the home-detention statute. The SCOV agrees with defendant that the trial court shouldn’t have considered the offense’s nature multiple times against defendant without articulating any factors specific to “defendant herself that weighed against her in the court’s reasoning.”

The trial court failed to give any weight to the prior convictions, history of violence, medical and mental health needs, and supervision history factors, which the SCOV notes, “in this case tended to support use of home detention.”

The SCOV also notes its concern that the trial “court grounded its decision on the way that DOC has chosen to discharge its responsibilities under the program.” The SCOV emphasizes that a person on home detention is just as much in the custody of the DOC as a person who’s incarcerated. Thus, while the safety of the public is a permissible factor to consider, it doesn’t “include second-guessing how the commissioner administers the home detention program.”

The SCOV’s parting shot is thus: “The Legislature has clearly articulated a preference for home detention, where appropriate, over pretrial incarceration lasting longer than seven days. It is the courts’ duty to implement that preference in the manner prescribed by the Legislature.”

And so the case is reversed and remanded. Defendant doesn’t necessarily get home detention because of it, but the path to it is there.

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