Thursday, April 20, 2017

Remand for Sentencing


State v. Sullivan, 2017 VT 24


I want to make sure this is really clear: this case involves a remand for sentencing. That means his sentencing hearing is supposed to happen again. Not that he’s not getting a sentence, not that he’s “getting off for free,” not that he’s getting his conviction overturned. It’s that he’s getting another sentencing hearing.

I point this out, because by the time I’m writing this summary, I’ve seen the news articles about the SCOV decision in our local media. I also read the comments people posted in reaction to the story. Some people are really upset that he gets a new sentencing hearing, and perhaps misunderstand that the court’s decision doesn’t change the defendant’s guilt or innocence in the matter. This is because either a) they didn’t actually read the news story indicating that there’s a new sentencing hearing or b) the news story somehow made it seem like someone got away with something.

Here’s what happened. Yes, Mr. Sullivan did drink, he did drive, and he did hit a woman crossing the street. He didn’t stop right away, and drove to a parking lot down the road before he finally did stop. He immediately called his law partner and his lawyer (not clear if they are the same person or two different people), and also called his son. He did not go to the police until the next day. Unfortunately, the woman who was hit died.

He was charged criminally, had a trial, and was convicted of DUI with death resulting, and leaving the scene of a fatal accident. During the trial, the State called witnesses to testify, including the trooper who took measurements at the scene of the crash, and a doctor who specializes in the effects of drugs and other substances on the body. The trooper testified, in part, about how much distance Mr. Sullivan would have needed in order to stop without hitting the pedestrian.

The doctor testified about the effects of alcohol on the body. When Mr. Sullivan went to the police the day after the crash he told them how much he drank the night before. Based on this information, the expert gave an opinion about Mr. Sullivan’s likely BAC at the time of the crash, and how the alcohol in his body would have affected his ability to drive. The doctor testified that because the alcohol would cause the nervous system to slow down, it would have taken even more distance for Mr. Sullivan to stop his car than if he hadn’t been drinking. Mr. Sullivan objected because the doctor’s testimony started to sound like accident reconstruction. The court allowed it to go forward, reasoning that what the doctor said was less about reconstructing the accident itself, and more about why it happened.

The jury was instructed on the law, deliberated, and found Mr. Sullivan guilty on both counts. A few months later there was a sentencing hearing. Mr. Sullivan sought permission for an expert to testify at state expense. This was denied, and the court sentenced him to 4-10 years to serve on each count, concurrent.

Mr. Sullivan appealed, raising three issues. First was on the jury instruction regarding causation, which allowed the jury to find him guilty even if the intoxication did not cause death. Second was on the admission of the doctor’s testimony about the effects of alcohol and his opinion that it was the alcohol that caused the accident. Third was on the fact that the court did not permit expert testimony at the sentencing hearing.

SCOV affirmed the convictions, but remanded for a new sentencing hearing and ordered that if, in fact Mr. Sullivan qualified to have an expert appointed at state expense, then that must be permitted.

SCOV first examined the jury instruction issue. There was no problem with his preservation of the issue for appeal. I bring this up only because when you’re dealing with jury instructions, there are specific times to object, and if you don’t do it right, you may not preserve it correctly. That wasn’t the case here.

The problem was with the substance of the instructions themselves. Mr. Sullivan argued that the way the instruction was written, that it allowed the jury to find him guilty of the victim’s death without requiring the state to prove that intoxication or impaired driving had a role in the accident. He argued that the state had to prove intoxication and that but-for the intoxication, that there would have been no death.

SCOV agrees with the latter point, but does not agree that the State is relieved of its burden of proof with respect to intoxication. Looking directly at the statute, SCOV determines that the State has to prove that the victim died directly as a result of the defendant’s DUI offense, not merely contemporaneously with the offense. An appropriate jury instruction for this offense must include that the defendant operated a vehicle on a highway while under the influence of intoxicating liquor and that the intoxication while driving caused the victim’s death. The example SCOV gave is a good one; suppose someone was impaired while driving, but was stopped at a stoplight, was hit by another car, and a passenger died as a result of the crash. Sure, here the driver of the first car could be charged with a DUI, but the death of the passenger was as a result of being hit by the other car, not as a result of the first driver’s impairment. That wasn’t the case here, though.

SCOV looked at the jury instruction given in this particular case and although the causation element could have been more artfully stated, as a whole it would have been clear for the jury to understand what the State needed to prove. SCOV found that there was no basis for reversal based on the jury instructions.

Second, SCOV looked at the defendant’s issue with respect to testimony given by the State’s expert. This expert was a doctor who specialized in toxicology and the effect of drugs on the human body. He gave testimony regarding the effects of alcohol, and what could have been seen as accident reconstruction testimony.

SCOV concludes that the trial court allowed the doctor to testify appropriately. When it comes to expert testimony regarding scientific, technical, or other specialized knowledge, Vermont follows the rule set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This standard allows expert testimony if it’s based on sufficient facts or data, if it’s the product of reliable principles and methods, and if the proposed expert witness has applied those principles and methods reliably to the facts of the case.

The whole point of this is to make the judge the gatekeeper of testimony and information. Courts are not supposed to allow flimsy science to be admitted under the guise of an expert. Generally, if one party wants to propose certain expert testimony, the court will hold a hearing ahead of trial about whether or not this testimony meets the statutory requirements. As long as the trial court does not abuse its discretion in allowing testimony to be admitted or not, and as long as that decision is not prejudicial, the appellate court won’t reverse this decision.

SCOV reviewed the doctor’s credentials and testimony and found that the trial court was well within its right to permit the testimony. He was an experienced pharmacologist and could offer testimony about the effects of alcohol on the brain. The conclusions he drew about the accident were not about reconstructing the accident, but about how the accident could have happened as a result of the effects of alcohol on Mr. Sullivan’s brain. SCOV says it was not error for the trial court to have allowed this testimony, and sees no basis to reverse based on this.

Turning to sentencing, though, SCOV does find an error and reverses, but only with respect to sentencing.

After the trial, Mr. Sullivan had run out of money and didn’t really have much in the way of assets to continue paying his lawyer. The lawyer asked the court to withdraw, and the court said no, given his history with the case. Mr. Sullivan did have a bail review hearing, and was able to get assigned counsel for that particular hearing.

They headed toward sentencing, and Mr. Sullivan wanted to have an evaluation done by a forensic psychologist in order to have testimony before the court about his mental state at the time of the accident. The problem was that he was out of money. He sought permission to have the state pay for the expert, and the court denied that request. The court noted that although he did file a financial affidavit in support of his request, the court found that he had some money in savings and had some expenses the court didn’t fully understand. Mr. Sullivan appealed that finding to SCOV, and it was affirmed by a single justice.

Meanwhile, the clock was ticking. The trial was in March of 2015 and sentencing was set for late July 2015. Mr. Sullivan’s lawyer sought to withdraw in April and was denied. Then they sought funding for necessary services for the psychologist, which was also denied. The sentencing hearing got scheduled, and although Mr. Sullivan sought a continuance, that was denied, too. He reasoned that if he could get the psychologist on board, they wouldn’t have a report until September of 2015. But, the court denied this, saying that it seemed unlikely that whatever information could be generated by the psychologist would have much of an impact on sentencing. The reason was because by this point there was a pre-sentence investigation done, and a report generated. The report indicated that based on risk assessment instruments, Mr. Sullivan was at low risk to re-offend. The court concluded that the psychologist who Mr. Sullivan wanted to testify would likely do those same instruments and wouldn’t really add much to the hearing beyond information in the PSI.

But, that’s not what happened. During the sentencing hearing, the judge looked at Mr. Sullivan’s behavior in the hours and day immediately following the accident. This is exactly the information Mr. Sullivan wanted an examination and testimony about in an effort to explain the behavior.

Of course, whether or not any such expert testimony would have caused a different outcome, nobody can say. But since this is exactly what he was looking for, and because it was denied, SCOV remands for further hearing. SCOV found that the denial of the motion to continue was an abuse of discretion and sends this back to the trial court.

There’s another interesting piece regarding appeal of determination of financial need in terms of assigned counsel services and necessary services. The State has lots of resources that it can use in prosecuting cases. The State has a lawyer and the State is able to fund experts and other such issues in litigation. Constitutionally, a defendant is entitled to the same protections and services.

The court makes a determination about whether someone is financially needy. This is based on a formula and a threshold income amount set by the legislature. If the court determines that someone is not financially needy, the person can appeal to a single justice of the supreme court. If that justice upholds the trial court’s finding, the person can appeal to the full court. This has to be done quickly, and that makes sense, since the case is progressing, and often the question is about whether or not someone qualifies to have a lawyer appointed. It makes zero sense to have the trial and then if there’s a conviction, include the denial of counsel or other necessary services on direct appeal. So, SCOV makes it clear that this is actually meant to be a separate appeal and separate procedure.


In reversing, SCOV orders that there is to be a new sentencing hearing, giving Mr. Sullivan the ability to re-apply to see if he qualifies for necessary services at state expense, and if so, to present any information from an expert during his new sentencing hearing.

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