Sunday, March 26, 2017

Double Jeopardy Dilemma

State v. Dow, 2016 VT 91

By Andrew Delaney

Mr. Dow was charged with a smorgasbord of crimes after a fight with his wife and a later conflict with police. There was a partial mistrial, a couple convictions, a subsequent motion to dismiss, and a direct and interlocutory appeal—it all seems a bit messy to yours truly.

Let’s see if we can’t sort it out, huh?

Back in 2014, Mr. Dow’s wife posted a “revealing photograph” of herself on the interwebs. Mr. Dow became angry and this led to yelling and knocking items off of shelves. Mrs. Dow called the police and the police showed up. Mr. Dow was in a bedroom down the hall. The police officers asked him to come out and talk. Mr. Dow said, “No!” and told the officers to get out of his house.

Apparently, Mr. Dow brandished a machete (or at least a big knife), and this frightened at least one officer. Mr. Dow tried to get the officers to shoot him and when that didn’t work out, he took a bunch of pills in front of them. Eventually, Mr. Dow was arrested and taken away in an ambulance.

He was charged with seven counts stemming from the incident: five for his conduct directed at his wife and two for his actions toward the police.

During trial, the court granted the State’s request for a mistrial. This was ‘cause defense counsel had gotten into some questionable territory in cross-examining the wife. So all counts involving the wife got tossed to be brought back later. The counts involving the police— aggravated assault with a deadly weapon on a police officer and attempted simple assault on a police officer by menace—went forward and Mr. Dow got the dreaded one-word verdict on those counts.

Mr. Dow filed a motion to prevent retrial on the mistried counts arguing that double jeopardy had attached. The trial court denied the motion but permitted an interlocutory appeal. And so, we end up at the SCOV with an appeal of the denial of the motion and an appeal of the two convictions.

On the convictions, Mr. Dow argues (1) insufficient evidence; (2) bad jury instructions; (3) improper admission of prior bad acts; and (4) the two convictions are for the same conduct and therefore violate double jeopardy. The last argument has legs.

The SCOV  first deals with the insufficient-evidence-of-specific-intent-on-the-aggravated-assault-charge pitch. This argument is almost never a winner. This time is no different. The SCOV reviews the evidence, considers Mr. Dow’s I-was-only-trying-to-hurt-myself argument, and concludes that there was some evidence that could support a finding of specific intent. Not exactly a surprise there.

Next, the SCOV touches on the jury instructions. The instructions basically said Mr. Dow’s “secret intent” wasn’t the determining factor but the facts and circumstances were the important factors in figuring out Mr. Dow’s intent. There’s a fair point to be made here—setting aside his subjective intent seems counterintuitive if we’re trying to determine specific intent.

But the SCOV here reasons that the instructions “breathed the true spirit and doctrine of the law,” which is the death knell for a jury-instruction challenge.

There’s a short bit about the lack of a “threaten” definition in the instructions, but the SCOV is not persuaded. In the context of the instructions, the additional instruction on threaten would have been potentially confusing. No problem here.



Next we deal with some prior bad acts. Mr. Dow had previous convictions for domestic assault and involvements with his wife. The trial court ruled that this stuff could come in for context. And come in it did. On appeal, Mr. Dow argues that none of it should’ve come in.

This all gets shunted into the harmless-error zone, however, because the counts involving the wife were mistried. So that takes care of that.

That takes us to double-jeopardy on the two assault convictions. This wasn’t raised below and the State tries to argue it was therefore waived. The SCOV concludes that is was forfeited but not waived and so the SCOV can still review it, although we’re in plain-error territory.

And this is one of those situations where there’s plain error. See, simple assault fits neatly within aggravated assault, so a defendant can’t be convicted of both for the same conduct. We covered this just a little while ago. Because the State clearly requested that the more-serious conviction stand, the simple assault conviction gets tossed.

Then it’s on to the mistrial and its accompaniments. First, Mr. Dow argues that the trial court screwed up when it granted a partial mistrial over his objection. Next, he argues that it was error to sever the other offenses. Finally, he argues that the trial court should’ve granted his motion to dismiss the to-be-retried counts.

Let me grossly oversimplify. Defense counsel asked some questions about the wife’s sexual preferences based on her Facebook messages with another man. This was in response to direct testimony among other things about how wife was leaving husband because he was too controlling.

The trial court’s specific ruling on the admissibility of defense counsel’s line of questioning wasn’t all that clear.

The next day, the State moved for a mistrial arguing that the testimony about wife’s sexual preferences was irrelevant and unfairly prejudiced the jury. The trial court noted that defense counsel did not violate a court ruling. But in the end, over Mr. Dow’s counsel’s objection and his suggestions as to how the perceived prejudice might be otherwise remedied, the trial court declared a mistrial on the counts involving the wife but allowed the remaining two counts involving the police to go forward.

The majority begins by noting that double jeopardy is pretty important. It attaches with the swearing in of the jury, but a mistrial isn’t necessarily a bar to a retrial.

A mistrial should never be lightly granted. The moving party has to show prejudice before a mistrial becomes an appropriate ruling, and that’s a “high bar.” Against this backdrop, the majority holds: “The facts of this case simply do not meet the high bar outlined above.” Defense counsel’s questioning didn’t violate a pretrial order or a statute. Accordingly, the majority concludes that the mistrial shouldn’t have been granted.

While the majority isn’t going to say that defense counsel’s questioning was perfect, it will say that the testimony is not as prejudicial as the State makes it out to be.

As with any opinion with a dissent, there’s a bit of swiping at the dissent’s reasoning. The majority essentially says, “Just because the trial court used the word prejudice doesn’t mean there was prejudice.” The majority further points out that the perceived prejudice might’ve been cured by a curative instruction.

Because the mistrial was wrong, that means double jeopardy attaches and Mr. Dow can’t be retried on the mistried counts. The aggravated-assault conviction is affirmed. The attempted simple assault conviction is vacated. And the denial of the motion to dismiss the to-be-tried-but-previously-mistried counts is reversed.

Chief Justice Reiber, joined by Justice Eaton, dissents. The dissent is really only on the mistrial-was-improper point. In the dissent’s view, defense counsel’s questions were improper and irrelevant. Because the trial court was in the best position to determine whether there was prejudice and to what degree, and the trial court performed a thorough analysis before granting the mistrial the dissent would affirm the grant of a mistrial.

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