Friday, August 15, 2014

Mistrial Mishaps

State v. Pettitt, 2014 VT 98

By Elizabeth Kruska

How many times has this happened to you? You ask a witness a question, and instead of answering the question you asked, she gives you mountains of irrelevant, highly prejudicial information instead.  Yeah.

Unfortunately, this happens. And it’s what happened in Mr. Daniel Pettitt’s restraining order violation trial. The issue was whether Daniel violated a restraining order held by his girlfriend (Girlfriend) by coming within 300 feet of her and her residence. She said he did. A third person said he did. He said he didn’t.

Girlfriend testified. Daniel’s trial theory was that of innocence, and one of his strategies was to attack Girlfriend’s credibility. When his attorney started to question her things started to go wrong. Defense counsel asked Girlfriend if she had PTSD. She responded by asking “like, why are you doing this?” and then said that the night she got the actual restraining order, Daniel tried to shoot her.

Oh no.
The State’s Attorney objected. The defense attorney did not object just then, nor was there a motion to strike the unresponsive testimony or a request for a curative instruction.

Cross examination resumed, and again, Girlfriend decorated the testimony with irrelevant, prejudicial responses. At that point defense counsel moved for a mistrial. The court said, “nope, you invited those responses.” Defense counsel probably should have asked for a curative instruction here, but didn’t. At the close of the evidence, defense counsel moved for a judgment of acquittal, which was denied, because of course it was. Daniel was found guilty of the charge.

Later there was a sentencing hearing, where the judge imposed a split sentence that involved probation and also 90 days of home confinement furlough up front. When Daniel reported to the Department of Corrections for the home confinement, they just went ahead and stuck him in jail. He filed for an emergency stay of the sentence because that’s not what the judge meant to happen. That was granted, and a second sentencing hearing was held sometime later. At that point the judge imposed probation, which included a condition that Daniel had to reside at his parents’ house, and if he had to move, then probation had to approve the new residence. The judge also converted a concurrent sentence on a separate charge to a consecutive sentence.

Daniel appealed. He felt the court should’ve granted the mistrial he sought when Girlfriend went off the rails in her testimony. He also appealed the probation condition requiring him to live at his parents’ house and to get approval if he moved, and the consecutive sentence from the other charge.

SCOV, much like McKayla Maroney, is not impressed. (Who wants to see the 5 justices lined up, making the McKayla Maroney face all together? I think that would be funny.)

SCOV says it was not an abuse of discretion not to grant the mistrial sought. Girlfriend’s testimony wasn’t enough to ruin the entire trial. Although Daniel’s trial strategy was to discredit her testimony, there was also that other witness. The other witness backed up Girlfriend’s side of the story. Also, apparently Daniel said he was with his mom the whole evening and didn’t go to Girlfriend’s house, but mom never testified. Would things have been different if mom testified? We don’t know, but if he was convicted after trial and mom backed up his alibi, it certainly would have lent more weight to the notion that Girlfriend’s prejudicial testimony played a larger part in the jury’s decision.

Further, any prejudice that there might’ve been could have been dealt with by a prompt curative instruction. It might be a different story if Daniel’s lawyer asked for a curative instruction and got denied by the court. That might change things in the calculation SCOV makes in granting his request for a mistrial.

SCOV goes on to say that the defense lawyer (not this specific one, but in general) bears some responsibility for asking for curative instructions. And they have to be done in a timely way. When things first go wrongBAM! Ask for the curative instruction.

SCOV also says that Girlfriend’s testimony wasn’t exactly invited error. They feel defense counsel should’ve been a little clearer about telling her only to answer the question that was asked, but it wasn’t as if counsel sought those answers he got.

So, there we go. Mistrial wasn’t granted, and SCOV says that was okay.

Then SCOV tackled the probation condition issue. If there’s one thing SCOV is all over lately, it’s probation conditions. Here, they said the condition that said Daniel had to live at his parents’ address but had to get permission to live elsewhere was fine. The point of the condition was to simulate the home confinement referral that went awry. Also, it didn’t give unfettered discretion to DOC to approve (or not) a residence. The approval process only would have to take place in the event Daniel’s parents’ home somehow became unavailable to him. The record doesn’t seem to show that that would happen, so SCOV feels this is perhaps fine-tuning that isn’t needed.

Also, he didn’t object to the probation condition at the time of sentencing, and if there’s one thing we SCOV-watchers know, it’s that you have to object to probation conditions at the time of sentencing.

As for the concurrent sentence turning into a consecutive sentence, the parties stipulated that that wasn’t okay, so SCOV sends it back for the trial court to deal with that point.

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