2016 VT 113
By Elizabeth Kruska
Woody Allen is credited with saying that 80% of life is showing up. That’s largely true of criminal court, as well. There’s a whole lot of showing up involved in court cases. Except for when it isn’t required, and that isn’t all that often. And as it turns out in this particular case, the fact that Mr. Grace didn’t show up at one point was enough for SCOV to reverse the case.
Here’s what happened. Mr. Grace lives in Ohio, but back in 2013 visited Vermont. He got pulled over and was ultimately arrested for and charged with a DUI. He didn’t feel the reason he was initially stopped was lawful, so he challenged the validity of the stop with a motion to suppress. The motion to suppress was scheduled for a hearing, which went forward in early 2015.
Quick break for readers who aren’t lawyers or who aren’t familiar with how our court system’s notices work. At the time of Mr. Grace’s case (and now), courts electronically send notices to attorneys, who then provide notice to the clients. Every attorney or firm has some method of providing notice—whether it is to send it electronically, or by a letter through the US Mail, or some other system. Hearing notices usually specify that defendants must be present, and warn that a warrant could be issued for failing to appear. SCOV has dealt with this issue in the past.
Mr. Grace did not appear for his motion to suppress hearing. His lawyer took the blame for that, and explained to the court that although there had been a notice provided, it was not made clear to Mr. Grace that he had to appear. The judge did not issue a warrant for Mr. Grace’s arrest, and asked the parties if they could go ahead with the hearing. The court was concerned about whether or not they could go forward without the defendant. The defense attorney did not object, so the court had the hearing, took evidence, and denied the motion.
The case later went to trial. The police officers involved in the case testified and gave one version of events surrounding the traffic stop. Mr. Grace testified on his own behalf and gave a different version. Ultimately he was found guilty.
He appeals to the Vermont Supreme Court, arguing that the trial court erred in having the earlier suppression hearing without him. SCOV agrees with him, reverses and remands the case to the trial court to re-hold the suppression hearing—this time with Mr. Grace present unless he voluntarily absents himself. If it turns out the court would grant the motion, the conviction will be reversed. If the court would not grant the motion, the conviction and sentence will remain in place.
So, wait. What? There was no objection at the trial court level to proceeding without the defendant. And as we’ve discussed eleventy-jillion times, you’ve got to preserve your issues for appeal. Unless, of course, the issue at hand involves a constitutional right, and the trial court’s error involving that right was a plain error. In order for it to be plain error, it has to be so glaring and grave as to strike at the heart of the defendant’s constitutional rights. SCOV said that’s what happened here.
SCOV gets into the Sixth Amendment (the best of all the amendments, in my opinion) and looks at the Confrontation Clause (the best of all the clauses, if I can be so bold). The Confrontation Clause assures every defendant the right to be present at trial. The way this has unfolded over years of jurisprudence is to provide criminal defendants the right to be present at every critical stage of the court proceedings. Courts have determined suppression hearings to be critical stages. This is because suppression hearings don’t just involve questions of law; they also involve questions of fact. And without a defendant present, the court necessarily only receives the government’s version of the facts. That’s not to say a defendant necessarily would testify at a suppression hearing. But a defendant who is present, and who hears a government witness provide certain facts, is able to then confer with counsel about whether those facts are correct or are actually a giant heap of baloney. Not that those are the only two possibilities, but you know what I mean.
A defendant can choose to waive his right to be present in certain circumstances. Under Vermont Rule of Criminal Procedure 43, a defendant can notify the court that he or she is choosing to waive the right to appear. That doesn’t seem to be what happened here, though. Mr. Grace may not have known he had to show up—and not knowing is different than knowing and voluntarily not appearing. That is where the constitutional issue occurs.
SCOV is concerned about this. A suppression hearing like the one in this case can determine the outcome of a case sometimes. If it turns out that the initial traffic stop was defective and is suppressed, everything that comes after it also gets suppressed. In a DUI case, that really doesn’t leave much of anything for the state to work with in terms of evidence. It’s not clear whether Mr. Grace’s presence would have caused a different outcome at the suppression hearing. But at the very least, he would have been able to consult with his attorney during the hearing. Maybe the attorney would have asked different or additional questions, and maybe those questions would have led to the motion being granted. We just don’t know.
SCOV is also concerned about the overall integrity of the judicial system. Mr. Grace, like anyone, deserves a fair and impartial hearing. SCOV felt it was hard to find that this felt fair when Mr. Grace wasn’t there and didn’t voluntarily agree not to be there.
So, for all those reasons (which I kept very short, so bravo, me!), SCOV reverses.