2016 VT 25
By Elizabeth Kruska
This is a case of a handful of things that went wrong, but not enough to reverse.
Mr. Atherton (or Melton, but I’m calling him Atherton because it’s listed first) was charged with and ultimately convicted of sexual assault. The facts are pretty brief. Atherton and 3 friends had some drinks and smoked some pot and went to a bar. After the bar they went back to a friend’s house to crash for the night. One of the friends woke up to find Atherton having sex with her. This was unwanted; the friend screamed, and the screams woke up the other friends. The complainant had a sexual assault exam done, and the exam showed no evidence of Atherton having had sex with her. Atherton denied the allegations and had a trial after being charged. The jury found him guilty at the end of the trial.
Mr. Atherton appeals, citing three errors. SCOV affirms, saying that although there might have been some errors, it wasn’t enough to change the outcome of the case.
First of all was an issue with the jurors. It’s common in very serious cases for questionnaires to be sent to prospective jurors. Especially in sex cases, or other cases involving sensitive subject matter, the parties want to know ahead of time if there are jurors who won’t be able to listen to evidence fairly due to things that have happened in their lives. Sure, lawyers on both sides could ask questions during jury selection, but everybody recognizes that sometimes things are too sensitive to talk about in a crowd of strangers. So, questionnaires get sent out to prospective jurors ahead of time to find out some of this information.
In Mr. Atherton’s case, questionnaires were sent to the jury pool ahead of time. Two of the jurors who ended up getting seated on the panel had marked “yes” to a question about whether they or someone they knew were sexual assault victims. During the actual jury selection, none of the jurors—including the people who answered “yes” to the question on the form—said they felt they would have difficulty in being impartial. Mr. Atherton didn’t object to these people being seated on the panel. Later he appealed, saying they weren’t fair jurors because of their questionnaires.
SCOV says this was not inappropriate. When dealing with jury selection, there are a couple different kinds of bias that everyone needs to bear in mind. First is actual bias. That happens when a juror says he or she cannot be impartial and cannot base a decision on the evidence before him or her. Let’s suppose the case is a DUI case and a particular juror has a strong personal objection to alcohol consumption and says that he or she could not possibly judge a case fairly upon learning someone drank alcohol. The juror could be excused for cause because an argument could be made that he or she would be basing a decision not on the evidence, but on his or her own actual bias.
The other kind of bias to watch out for is implied bias. This happens when a juror has a relationship to a participant in the trial. It can be implied that the juror would not be able to be impartial because he or she has a relationship with someone involved in the trial and would base his or her decision on that relationship. How about an example? Let’s pretend my dear husband were in the jury pool for a case where I was the defense attorney. I like to think he’d be very biased toward me, and indeed, that could be implied.
In this case, none of the jurors said that they would have trouble being impartial even if they had some sort of connection to a sexual assault in their lives. The defense didn’t challenge any of the jurors for cause at that point. SCOV, in reviewing the record, can’t find that there is any kind of bias with the jurors, and can’t conclude that this was an error.
Mr. Atherton also appealed a ruling the trial court made relative to certain evidence with respect to one of the victim’s friends who testified. The friend, H.D., had a prior conviction on her record for providing false information to a police officer. Generally, a witness’s prior criminal record can’t be used in court. It makes perfect sense. If a person is testifying, but then the jury hears that the person has criminal convictions on his or her record, it would make the jury potentially think the person is somehow not credible just because of the convictions. Also, in terms of a defendant, if a person had previously been convicted of an offense, and then the jury learned that he or she had a prior record, they could conclude that if the person had committed crimes in the past that they must have done it this time.
None of those things is permissible. A jury is supposed to determine a case based on the facts presented, not based on outside information.
There’s an exception to this, however. If a witness has a prior conviction for a crime based on untruthfulness, the fact of that conviction can be used to impeach the witness. Since credibility is always relevant, information can be used to impeach a witness’s credibility. There is a rule of evidence and a procedure for admitting evidence involving crimes of untruthfulness. As with any piece of evidence, it’s up to the judge to decide if the piece of evidence is admissible. This is done by using a balancing test to determine if the probative value of the evidence outweighs any other issues with it.
Here, the defense lawyer tried to use a witness’s prior conviction for providing false information to police from about six years before. The point in doing this is to highlight the witness’s untruthfulness; a jury could use that as a tool to help determine the witness’s credibility. The trial judge would not allow this conviction to be admitted. The judge determined that it was a conviction from six years ago, that it was a misdemeanor with a really short sentence, and that the probative value of it was outweighed by the prejudicial effect it could have.
SCOV disagrees with the judge’s analysis, but says that the fact this wasn’t admitted didn’t change the outcome of the case. First of all, the trial court should have done an analysis relative to the elements of the conviction itself to determine whether the crime of providing false information involved an element of untruthfulness. If the elements have to do with untruthfulness, that tends to shift the balance in favor of admission. Second, the fact that the court felt that it was just a misdemeanor, and so was less probative than if it were a felony, is a non-issue. The issue has to do with the elements of untruthfulness, not the level of offense or sentence received. Also, the rule specifically says that such convictions have to have happened within the prior fifteen years, so the thought that it was too old by being six years old doesn’t really ring true. Finally, the issue of prejudice was misplaced. In this case, it was a witness who the defense sought to impeach. All that would have happened was that a piece of information would have come out that would have caused the jury to consider the truthfulness of that particular witness.
SCOV says that it probably wouldn’t have changed anything. The witness’s actual testimony concerned facts about what happened after the alleged assault. She didn’t see the actual assault, and her testimony was mostly cumulative of what other people said. Even if the prior conviction came in, since her testimony meshed with other witness testimony, if the jury chose to reject her testimony because of her prior, they could have made the same finding based on the evidence.
Lastly, Mr. Atherton argues that the prosecutor made comments during his closing argument that rose to the level of prejudicial error. The state’s attorney, during his argument, made some comments that SCOV agreed were improper in that they appealed to the sympathy of the jury. But, Mr. Atherton didn’t object at the time the arguments were made.
However, SCOV found that the comments the prosecutor made were not so inflammatory that they rose to the level that they’d result in a fundamental miscarriage of justice. The court considers lots of factors in making this determination, including how frequent and persistent the comments are, the context of the comments, and whether the comments had an impact on the theory of defense. SCOV finds that the singular comment wasn’t enough for reversal.
The prosecutor also made a comment regarding Mr. Atherton’s statements or lack thereof. Mr. Atherton did not testify, and the prosecutor made a comment during his closing that bordered on being an improper remark about his silence. There was a defense objection, which the trial judge sustained, and then gave a curative instruction to the jury, reminding them that a defendant has the right to remain silent. The defense also moved for a mistrial, but that was denied.
Mr. Atherton raised on appeal that it was an abuse of discretion to deny the mistrial. SCOV disagrees. The comment made by the State’s Attorney was not great, but was not of the kind that would have caused the jury to take it as a comment on his choice to remain silent. There weren’t any other remarks made surrounding Mr. Atherton’s silence.
So, although some things went wrong, SCOV does not find that individually or cumulatively those errors are sufficient to reverse, so the conviction is affirmed.