State v. Breed, 2015 VT 43
By Amy Davis
If you’re looking for a summary full of witty puns and poorly colored jokes, this isn’t it. Sorry folks, but I had to draw the line somewhere. There’s a joke about a lawyer having a soul in there somewhere . . .
In 2013, a jury convicted defendant Breed for sexual assault and sexual assault of a vulnerable adult based on a single incident. Defendant, in his seventies and living in a residential facility for disabled adults and senior citizens, was charged in February 2012 with: (1) engaging in a sexual act with another person without her consent, in violation of 13 V.S.A. § 3252(a)(1); and (2) engaging in sexual activity with a vulnerable adult without her consent, in violation of 13 V.S.A. § 1379(b)(1). The charges were based on a single incident where defendant lured the complainant into his apartment under false pretenses, then forced her to engage in a sexual act without her consent.
The trial court scheduled a final calendar call and jury draw and held a two-day trial. The jury convicted the defendant on both charges, and the court denied defendant’s motion for judgment of acquittal and his motion for a new trial.
Defendant had the following bugaboos about the trial and testimony: (1) the court improperly admitted hearsay testimony of the complainant’s brother; and (2) one conviction should be dismissed on double jeopardy grounds. The trial court didn’t buy it and imposed concurrent sentences of 3 years to life imprisonment for the sexual assault, and 3-20 years for sexual assault of a vulnerable adult conviction. Defendant appeals his bugaboos to the Supreme Court.
Judge Hayes, specially assigned, writing for the Court, first addresses the three-week period between the jury selection and trial. Vermont Rule Criminal Procedure 23(d) states “trial must commence not more than 48 hours after jury selection in the case of a felony…” The rule was amended in 2008 to permit up to 30 days between jury selection and trial in felonies not punishable by life imprisonment.
It’s the first time in this case that this particular issue has come up, but under the plain-error analysis, is not enough to overturn the conviction. First, defense counsel said the scheduling made sense. The rule does not require the defendant’s personal consent or acquiescence to a delay beyond 48 hours. Second, the defense never asserted their right to supplemental examination. The Court concludes that even if the court erred by not confirming defense counsel’s “disinterest” in a supplemental examination, the error was not obvious.
The Court also states that it will not adopt a new rule, but suggests a “better practice” for the trial court: “(1) confirm that the parties are in fact consenting to a longer delay; (2) emphasize that the jurors are to avoid any news and not research the case during any separation period between jury selection and trial; (3) question the jurors about anything they may have heard or learned about the case following a separation period; (4) ensure that the parties are offered an opportunity to examine the jurors following a separation period; and (5) inquire whether either party has any challenges for cause based on any such examination.” It’s not a hard and fast rule, but you should do it.
Next is our old-timey rule that you cannot be tried for the same crime twice. And you win this round, Mr. Breed.
The Court applies the Blockburger Test: consider two offenses to be the same offense for double-jeopardy purposes unless each offense requires proof of a fact which the other does not. If it is not satisfied, the Court must presume that the Legislature did not intend to authorize the imposition of cumulative punishments for two offenses. How to over come this? Clear and contrary legislative intent.
For sexual assault of a vulnerable adult requires proof of a fact – that the victim is a vulnerable adult – that is not required for the sexual assault provision. But if you reversed the offenses, every element of the sexual assault must also be proved for a conviction of sexual assault of a vulnerable adult.
Now, what do we mean by sexual assault? Is it lewd and lascivious conduct or a sexual act? The State prosecuted the offense consistent with a charge for sexual assault of a vulnerable adult. The complainant testified to conduct consistent with a sexual act (aka penis to vagina), and the police officer testified to conduct of finger to vagina. Thus, all of the evidence described a “sexual act.” The jurors also concluded that the defendant engaged in a sexual act with the victim, allowing the court to impose a higher sentence.
To simplify, if you’ve zoned out: considering the vulnerable-adult charge in this case and the sentenced imposed, the sexual-assault charge did not requite any proof of a fact or element not included in the vulnerable-adult charge. At first glance, the two offenses appear to have different elements, but they really don’t, and run afoul of the Double Jeopardy Clause.
Presumably, the Legislature does not intend to permit cumulative punishments for the two offenses. In State v. Hazelton, the Court held that the presumption could be overcome by a clear indication of contrary legislative intent, like an explicit provision that the penalty is to apply cumulatively.
The State points out that sexually assaulting a vulnerable adult is a greater crime, and it would fail logic for the Legislature to impose a lesser sentence for this crime than it would plain ol’ sexual assault. Looking to the Legislative history, the Court finds that neither the vulnerable-adult statute nor any of its predecessors explicitly indicates whether the Legislature intended for the penalties to be cumulative with punishment for more general sex crimes. But the fact that one is punished greater than the other indicates that the Legislature did not mean for double punishments for both offenses – it’s one or the other.
The State advances a couple of rationales as to why it is OK to impose cumulative penalties for both. First, it does not make sense for the punishment of sexual assault of a vulnerable adult to be less than sexual assault in general. Second, prosecutors (if they could not charge both) would only bring charges under sexual assault and never for sexual assault of a vulnerable adult because the punishment for sexual assault is greater and needs one less element proven.
But the Court cannot read the Legislature’s mind and could not bring itself to conclude that the Legislature clearly intended to allow for cumulative punishments. But – it’s welcome to amend it if they want! So, no cumulative punishment, and one has to be barred by double jeopardy.
So what happens to Mr. Breed? He would like resentencing. The trial court acknowledged that they could put him on probation but wanted him in jail and sentenced him for the two crimes (not one). So because he’s punished separately, we’ll keep ‘em separated.
Lastly, the defendant says the trial court erred in letting in the testimony of the complaining witness’s brother under the excited utterance exception. We love hearsay, yes we do. Defendant says that there was insufficient foundation to admit the statement. But, because the brother visited the complainant the same day, the complainant was “upset, angry, and crying” while talking about the incident, and because she was “nervous,” the statement fell under the hearsay exception.
Therefore, the sexual assault conviction and sentence is vacated and the sexual assault of a vulnerable adult conviction and sentence is affirmed.
Justice Dooley agrees and disagrees. He agrees with the separation period and hearsay testimony, but isn’t sold on the double jeopardy issue. He says this is just “one of those cases” where the result is “indefensible.” The result? Judicial repeal of a crime.
Specifically, Justice Dooley doesn’t like the majority’s “mechanical” application of Blockburger, its “inadequate” examination of the legislative history, and its default to the rule of lenity without considering other applicable principles of statutory construction.
Some ways of figuring out what the Legislature meant is to look at social norms. He concludes that 13 V.S.A. § 1379 was not adopted to generally prevent sexual assault, but specifically protect vulnerable adults from abuse and exploitation. Also, the penalties for the two offenses are different – sexual assault under § 3252 is the base statute, and sexual assault of a vulnerable adult under §1379 is an aggravating circumstance. So yeah it’s different! But the majority says that this position, and all the cases cited in support, does not give a clear legislative intent – the standard we use to impose cumulative punishments.
This is the point where I would normally conclude with little life lessons to take with you on your travels. But I think you all get the point.