Saturday, April 8, 2017

Probation Conditions . . . Again

State v. Albarelli, 2016 VT 119

By Elizabeth Kruska

I know what you’re thinking. You’re thinking it’s been a little while since there was a case about probation conditions from the Vermont Supreme Court. That’s a little inside joke around here, because there have been something like eleventy-jillion cases about probation conditions in the last couple years. Here’s another one. Well, there are two parts to this case, and one of them involves probation conditions.

Backing up. Cameron Albarelli got charged with simple assault, disorderly conduct, and providing false information to a law enforcement officer. The facts alleged were that he was with a group of guys bar hopping on Church Street in Burlington one night. They were celebrating an upcoming wedding, which was the following day. Albarelli had a lot to drink. At one point, his group confronted a man sitting on a bench. Another group of people saw this confrontation and tried to intervene. That led to Albarelli and a person in the second group getting into a fight. It ended and Albarelli ran down the street. Someone called the police, and they were able to identify Albarelli by his clothing.

Albarelli initially told the police his name was “Cameron Mitchell” and gave a date of birth that was 1 year off his actual date of birth. His full name is Cameron Mitchell Albarelli. He didn’t exactly admit that he was in a fight, but alluded to the fact that he ran away to get away from the confrontation. He had a trial in his case and was convicted on all three counts. He got a sentence that included probation and work crew.

Albarelli appeals the conviction and the sentence. The convictions are upheld and the sentence is partly upheld. That’s the part about the probation conditions and we’ll get there in a second.

First, with respect to the simple assault charge, Albarelli appeals the fact the court would not give a self-defense instruction. In order to get that jury instruction, the defense needs to be able to get into evidence that the defendant had an honest belief of the need to defend himself, and that the belief was reasonable. The state always has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

The trial court would not give the instruction, and SCOV upholds that decision. Except for the fact the person in the scuffle was taller than Albarelli, there really wasn’t any evidence that he needed to defend himself. The law does not require that someone actually be hit or hurt in order to defend themselves—the threat has to be real and reasonable and imminent. In this case, the trial record—that is, testimony from several witnesses, doesn't support the self-defense theory.

Second, Albarelli challenges his conviction for disorderly conduct. The argument is that there was insufficient evidence to sustain the conviction. SCOV disagrees here, too. There are several flavors of disorderly conduct (not to mention “aggravated disorderly conduct,” a statute about which I have an opinion but will reserve for another time). Under this particular allegation, the State had to prove beyond a reasonable doubt that Albarelli recklessly created a risk of public inconvenience or annoyance when he engaged in fighting behavior. By the way, I completely just wrote that statutory language from memory, having heard it recited in thousands of plea colloquies. It’s like getting a song stuck in your head. My dear husband once had "Rhiannon" stuck in his head for a month. I like to mess with him by singing a few bars of it every once in a while to see if it gets stuck again. It usually does.

Where were we? Right. SCOV upholds the disorderly conduct conviction, too. SCOV is not going to disturb a jury verdict unless the evidence is so flimsy it only shows a suspicion of guilt. SCOV concludes that isn’t the case here. Vermont follows the Model Penal Code’s definition of recklessness, which essentially is that someone’s behavior is a gross deviation from the standard of care someone would normally use in the situation. It falls short of intentional behavior, but it certainly isn’t behavior people would expect. It’s hard to know what someone’s actual intention is, so it’s necessary to look at the behavior and surrounding circumstances. SCOV looks at the testimony given by witnesses and concludes that what they saw and described fit the definition of reckless.

Also, the fact that this scuffle happened in a public place—right on Church Street in Burlington—where people would be able to see and observe what happened, supports the conviction.

There is an issue regarding an instruction on unanimity of jurors, as well. SCOV reasons that although there wasn’t a specific instruction on unanimity with respect to this count, there was a general instruction on unanimity. Also, the State’s Attorney and defense attorney mentioned unanimity in their arguments. SCOV concludes this is enough for jurors to have understood what their jobs were.

Third, Albarelli challenges the false-information charge. In order to prove this, the State had to show not just that Albarelli gave false information, but did so purposely in an attempt to deflect an investigation from himself. All the elements have to be together all at once. Simply giving a false name probably isn’t going to be enough. SCOV stops short of adopting that position. SCOV also examines the potential First Amendment issue. The government can only curtail speech in certain circumstances. For there to be a lawful bar on false speech, there has to be a causal nexus between the restriction and the injury to be prevented. The issue with providing false information is that it can impede the government’s process in investigation of crime. 

Think about this particular circumstance. Albarelli didn’t totally give a false name—he gave “Cameron Mitchell.” It may be that’s the name he goes by. And since it is his first and middle name, it isn’t really false. If these were the facts, there probably wouldn’t have been a charge of false information. We just covered another case involving an alternative name, where it was pretty clear the person gave a legitimate but alternative name. It really happens.

Looking at the circumstances surrounding the whole situation in this case, SCOV reasons it could be concluded that Albarelli was giving a false name. He also gave a false date of birth, was evasive with his answers, and had clearly run away from a situation. All this together is enough for SCOV to uphold this conviction as well.

And now . . . Ladies and gentlemen, the moment you’ve been waiting for! Probation conditions! SCOV upholds some, strikes some, and remands some. It’s a mixed bag.

We know from SCOV that probation conditions are supposed to be individualized and tailored to the particular defendant. The problem is that the back of the plea agreement form, and consequently, the court’s computer system, contain a list of so-called “standard” probation conditions. Until fairly recently, it was common practice for courts to impose all these conditions on defendants, whether they needed them or not. I always refer to them as the “show up and be good” conditions, which generally they are. The problem, of course, is that although they cover “show up and be good” they also cover more than is required in every circumstance, and that is far more than is allowed under Vermont law.

So, SCOV goes through the entire list of probation conditions and upholds only those conditions that are tailored to the situation presented by the case, and which reasonably relate to Albarelli leading a law-abiding life, or which are reasonably related to probation supervision. For example, they keep conditions requiring Albarelli to stay in contact with probation about his whereabouts, job, or if he gets in more trouble; to meet with probation when required to do so, including at his home; to pay any unpaid legal fees.

SCOV also looks at Albarelli’s “special” conditions of probation surrounding alcohol consumption, treatment, engaging in fighting-type behavior, and contact with the complainant and upolds the conditions that were narrowly tailored to the facts presented. SCOV remands a few conditions, to the trial court for further findings so they can be made more specific or be stricken altogether.

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