Saturday, January 31, 2015

Brotherly Brawl

State v. Noyes, 2015 VT 11

By Andrew Delaney

I have a brother. When we were kids, we’d have some serious knock-down, drag-out fights. Now that we’re (allegedly) adults, there’s a lot less choking and punching in the face going on. Looking back, though, it’s a wonder that we didn’t end up with criminal charges from some of our tussles.

Mr. Noyes was not so lucky in the not-getting-charged department. He had a fight with his brother—presumably over whether brother had been suggesting that Mr. Noyes was having an affair with his stepdaughter—and was convicted of disorderly conduct and simple assault by mutual affray.

As the SCOV puts it, “Various witnesses provided conflicting accounts of the altercation.” The fight started at Mr. Noyes’s home and moved outside. Mr. Noyes’s daughter remembered brother as the aggressor. The stepson remembered it as a mutual thing. Brother, naturally, claimed Mr. Noyes was the aggressor. A neighbor made a bunch of conflicting statements, and her testimony included a signed statement with an after-the-fact notarization.

The police were called. Brother had a scrape on his chin. Mr. Noyes got charged.  Brother might've gotten charged too, but the opinion doesn't get into that.    

At one point during the trial, on cross, the prosecutor pointed out the stepdaughter and asked daughter whether Mr. Noyes was married to or had a relationship with the stepdaughter. Mr. Noyes objected, but it was too late and the trial court let the answers stand—whatever they were: the SCOV doesn’t tell us. Then brother testified about the cause of the fight in rebuttal.

Mr. Noyes was convicted of disorderly conduct and simple assault by mutual affray, and he appeals. 

The SCOV first considers Mr. Noyes’s the-prosecutor-improperly-brought-in-evidence-suggestive-of-an-affair-with-stepdaughter argument. The trial court concluded that the evidence didn’t impair Mr. Noyes’s right to a fair trial and the SCOV agrees. Letting evidence in or keeping it out is left to the trial court’s discretion. This equates to what I like to call the snowball’s-chance-in-hell standard of review.

Like that proverbial ball of icy fluff exposed to a blowtorch, Mr. Noyes’s argument never has a chance. The SCOV does call out the prosecutor on pointing out the stepdaughter and implying the affair when it didn’t follow from the evidence, but it doesn’t do Mr. Noyes any good. The SCOV concludes that there was no abuse of discretion.

Mr. Noyes’s next argument is that the State didn’t lay a proper foundation before confronting neighbor with her notarized-but-not-really-notarized statement. He also argues that the trial court didn’t let him get into the circumstances under which the statement was made.

First, the SCOV notes that the State didn’t have to show that the statement was properly notarized. Neighbor admitted that she signed it. That’s that for that. No abuse of discretion.

As far as the circumstances, Mr. Noyes wanted to get some brother-offering-pills-for-changed-stories statement made previously by neighbor in and it seems the trial court kept that out. Whether or not this was proper doesn’t get much shrift because the SCOV concludes that Mr. Noyes hasn’t demonstrated any prejudice. Neighbor’s testimony was definitely not the lynchpin of the State’s case.

The next argument is that the prosecutor improperly led State’s witnesses throughout the trial. As for the neighbor, the neighbor was a hostile witness and leading questions are all good. Another example involved impeachment of the stepson with a prior inconsistent statement, and the SCOV sees no error there either.

The final example is the “prosecutor’s questioning of brother on redirect.” There’s something about the police having told brother to just include the “highlights” in his statement, which presumably explains why certain things didn’t make it into the prior statement. The trial court allowed it as a “summation of the point,” and the SCOV explains that Mr. Noyes “fails to show that the court abused its discretion in making its ruling.”

There’s a footnote in Mr. Noyes’s brief that had some more examples, but the SCOV doesn’t get into those, concluding, “The prosecutor did not ask an inappropriate amount of leading questions and the concerns associated with such overuse are not implicated here.”

Mr. Noyes’s next argument is that the prosecutor “made improper comments on the evidence and made statements of fact from outside the record.” Because he didn’t object below, Mr. Noyes has to get to the plain-error zone.

There aren’t a lot of ways into the plain-error zone. Somebody has to screw something up really, really bad to get there. And here, the SCOV—unsurprisingly—does not go there. There are some comments, questions, and statements by the prosecutor that might’ve been improper (we’ll never know in this case), but nothing so egregious to get us into the plain-error zone. Mr. Noyes gives a number of potential grounds, but nothing that the SCOV feels comfortable latching onto.

Finally, the SCOV considers the insufficiency-of-the-evidence argument. Even when properly preserved, this is an almost-never-gonna-win argument. In this case, the SCOV concludes that Mr. Noyes failed to preserve it and that one of his arguments (as to public inconvenience and probable cause) is untimely.

So the SCOV affirms.  On an intellectual level, I can grasp that, but on a human-sibling level, I'm not entirely sure how I feel about all this.  

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