Saturday, November 21, 2015

Who's the Boss?

State v. Trowell, 2015 VT 96

By Andrew Delaney

The State certainly seems to think Mr. Trowell was in charge.

Mr. Trowell was convicted of one count of assault and robbery and one count of kidnapping. He argues that the trial court screwed up when it determined that he’d “opened the door” to certain cross-examination of a defense witness; that the trial court should’ve given his requested jury instructions; and that the trial court should’ve granted his motion for judgment of acquittal on the kidnapping charge.

Let’s look at how this all came about.

Mr. Trowell and his friend, Mr. Manning, encountered Ms. Moses at a grocery store. Mr. Trowell and Ms. Moses had met in the past. They quickly exchanged friendly greetings. Ms. Moses then went to the bus station to meet her fiancée, Ms. Tirrell.

Mr. Trowell and Mr. Manning then showed up at the bus station, after having stopped by Mr. Koritz’s apartment where they were joined by him and three other dudes. So, the six guys “surrounded” Ms. Moses and Ms. Tirrell, and Mr. Trowell essentially told Ms. Moses that they needed to find some other dude (Mr. Cody) who owed Mr. Trowell money. Let’s just go with he wasn’t subtle about it.

Mr. Trowell then told Ms. Moses to hand over everything in her pockets and she gave Mr. Trowell the $50 in cash she had. She was worried she’d get beat up by all the dudes there. Then a police officer drove up. Mr. Trowell, Mr. Manning, and Mr. Koritz left, with Mr. Trowell instructing the remaining three dudes to keep an eye on Ms. Moses and Ms. Tirrell and not let them leave. An officer spoke briefly with the three men who were left behind. The women didn’t say anything to the officer, presumably because they were afraid of retaliation. The three dudes left, but as soon as the officer took off, they were back.

Just in case we don’t have enough characters in this play, enter Jacobina Carter. In the meantime, Ms. Carter had picked up Mr. Trowell, Mr. Manning, and Mr. Koritz in her white Cadillac Escalade. This crew showed up and parked in a lot across the street from the bus station. Mr. Koritz (at Mr. Trowell’s instructions) went to the lobby and made Ms. Moses make some phone calls to ask about drugs (from Mr. Bessette) and try to determine Mr. Cody’s whereabouts. Then Mr. Manning came into the lobby and told Mr. Koritz, “Sal wants them.” Ms. Moses and Ms. Tirrell were worried about what that meant and testified as such.

When they got to the Escalade, Ms. Carter didn’t look at Ms. Moses and Ms. Tirrell. They both knew Ms. Carter and thought this was unusual and not like her. Mr. Trowell then told Ms. Moses and Ms. Tirrell to get in the f***ing car, and proceeded to illustrate the versatility of a certain four-letter word much loved by George Carlin (NSFW) with various threats. Mr. Trowell left Mr. Koritz and Mr. Manning “in charge,” shut the doors, and Ms. Carter drove away with Manning, Koritz, Moses, and Tirrell in tow.

Ms. Moses and Ms. Tirrell didn’t know where things were headed. The crew made their way to an apartment where they found Mr. Bessette, and Mr. Manning and Mr. Koritz raided the apartment, while Ms. Carter, Ms. Moses, and Ms. Tirrell waited in the car. A woman screamed and Ms. Moses and Ms. Tirrell heard it in the car. Ms. Tirell sent a text message to a friend at the bus station asking her to call 911 and Ms. Moses called 911 but just said “Yeah, what’s up?” so as not to alarm Ms. Carter.

Shortly after Mr. Koritz and Mr. Manning got back in the car, the Escalade was pulled over (based on a report of abduction) and Ms. Moses and Ms. Tirrell were relieved to be rescued. They both gave statements. Mr. Trowell was arrested and charged with felony kidnapping and assault and robbery.

After a four-day jury trial Mr. Trowell was convicted of both counts. The trial court denied Mr. Trowell’s pre-verdict motion for judgment of acquittal and his post-verdict judgment-notwithstanding-the-verdict motion.

Mr. Trowell appeals.

The first issue is about “opening the door” to a certain statement made by Mr. Trowell’s sole witness, Mr. Bessette. Mr. Bessette testified that Mr. Manning and Mr. Koritz had attacked him at his apartment and that he knew one of them from “from hanging out on the streets and just associations.” Mr. Bessette then testified that he’d known Ms. Moses and Ms. Tirrell “for five years and that they had a reputation in the community as ‘very dishonest’ and ‘compulsive liars.’”

The State wanted to bring up that Mr. Koritz had confronted Mr. Bessette about missing heroin the evening before the incident to refute what the prosecutor saw as a knew-Mr.-Koritz-only-in-passing implication from Mr. Bessette’s testimony. There was a kerfuffle and Mr. Trowell’s lawyer objected. What ended up happening is that the State was able to get a knew-Mr.-Koritz-from-an-“incident”-the-night-before statement into evidence.

Mr. Trowell makes a guilt-by-association-and-prejudicial argument and the State responds with a no-objection-below-you-opened-the-door-and-anyway-no-harm-no-foul argument.

The SCOV goes with the no-harm-no-foul pitch, concluding that any error was harmless. “This nondescript passing reference to an unspecified ‘incident’ was a small component of three days of testimony. Neither the State’s question nor the witness’s answer implied that the previous day’s encounter related to drugs.” In other words, the jury would’ve convicted with or without this evidence, so nice try, but no cigar.

Mr. Trowell wanted two jury instructions that the trial court declined to give. One was that the jury could find reasonable doubt in conflicting testimony. The other was that to prove assault and robbery, the State had to prove that the property taken was of “another.”

The SCOV looks at jury instructions to determine whether they “convey the spirit of the law” and to make sure they didn’t potentially mislead the jury. I’ll just refrain from comment on that one. Talk amongst yourselves.

Here, the SCOV sees “no error in the court’s refusal to expressly instruct the jury that conflicts in the evidence could raise a reasonable doubt as to defendant’s guilt and thus preclude conviction.” The trial court instructed on reasonable doubt and conflicting evidence, and those instructions accurately reflected the law. The SCOV notes that the instructions “clearly indicate that the jury could find reasonable doubt in conflicts in the evidence.” So that’s going nowhere.

Moving on to the property-of-another instruction, Mr. Trowell argues that the State was required to prove that property taken belonged to another. That’s an essential element. And, honestly, it is. The trial court’s instructions “did not expressly say that the State must prove that the money taken belonged to another.” The State beats the no-harm-no-foul drum again.

And the SCOV picks up the beat, reasoning that Mr. Trowell’s argument fails both factually and legally. “First, not a scintilla of evidence introduced at trial indicated that the money in Moses’s pocket belonged to defendant, or even that Moses owed defendant money.” At best, the SCOV reasons, Mr. Cody owed Mr. Trowell money. So that’s not going to carry the day. On the legal front, the SCOV notes that even if someone owes you money, you don’t get to just go take it whenever you feel like it—in this regard, there’s no legal merit to Mr. Trowell’s argument.

Finally, we get to the sufficiency-of-the-evidence argument (or as I like to call it “the-really-really-tiny-snowball’s-chance-in-hell” argument). Mr. Trowell says the evidence didn’t support his conviction for kidnapping, and the SCOV more or less responds, “Yeah, right” in the fully sarcastic version of the phrase. To be fair, the SCOV does run through the elements of kidnapping and explain how the evidence satisfies those elements, but I’m pretty sure that a criminal defendant has a better chance of winning the Powerball drawing while in prison than prevailing on a sufficiency-of-the-evidence pitch.

In the end, Mr. Trowell’s convictions are affirmed despite his best efforts to get them overturned.

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