Saturday, June 24, 2017

Bifurcation

Bifurcated Avocado
State v. Bangoura, 2017 VT 53

By Elizabeth Kruska

This opinion is really short. In fact, it will probably take me longer to write about it than it does to read the actual opinion. So, go read the opinion, too.

Mr. Bangoura appealed his conviction for a second-offense DUI. SCOV affirms.

The issue here has to do with bifurcation of the trial. There are some crimes that someone can commit multiple times and the maximum possible punishment doesn’t change. For example, someone can commit petit larceny over and over by stealing multiple times, and the maximum possible penalty allowed by law doesn’t change. On the other hand, our criminal code has other crimes that are known as predicate offenses, and DUIs fall into this category. If someone gets charged with a first offense DUI, there’s a particular punishment available. If a person gets charged with a DUI when they already have a prior DUI conviction, the penalty steps up to a higher level.

This creates a potential problem if a person wants a trial in his or her subsequent-offense DUI case. In order for the court to impose a sentence consistent with a second offense, the State has to prove that the first offense actually occurred. But, in order to do so, the State can’t prove this piece during its case-in-chief. The trial has to be bifurcated into two parts. Imagine a jury hearing facts about a DUI case, and being instructed to make a decision solely on the facts of that case. If they also heard that the defendant has a prior DUI conviction, it’s likely to make the jury decide that the defendant is automatically guilty this time around because it’s happened before. That’s not fair, since the facts of the new case are supposed to stand on their own, and it could very well be that the defendant was guilty the first time but not this time.

So, in practice, the way this works is like this. The trial happens with respect to the facts of the instant case only. The jury retires to deliberate on whether the defendant is guilty of that particular case. If they come back and say the defendant is not guilty, then they never get to the part about it being a subsequent offense. If they find the defendant guilty, the State then puts on additional evidence to prove the prior offense.

It’s also pretty common, though, for defendants to stipulate to the existence of the prior conviction. And that’s what happened here. After Mr. Bangoura’s trial, the jury went out to deliberate. The parties went on the record and Mr. Bangoura’s lawyer said they stipulated to his prior conviction. Mr. Bangoura did not object to this at the time. The jury then came back with a guilty verdict. Because there was a stipulation to the prior conviction, the court was able to impose a sentence consistent with a second offense DUI without requiring the State to present additional evidence to the jury about the existence of the prior offense.

Mr. Bangoura appeals, arguing that the fact that his lawyer agreed to the prior DUI conviction deprived him of his right to a jury determination of the prior offense. He also argues that the court should not have accepted the stipulation because it came from the lawyer, and not from Mr. Bangoura directly. Although he does not dispute the existence of the prior DUI conviction, he argues that his case must be reversed because the court did not find proof of the prior DUI beyond a reasonable doubt.

SCOV affirms the lower court. Here’s the problem. Even though the lawyer was the one who did the talking and told the court that they stipulated to the prior DUI conviction, Mr. Bangoura did not object to the lawyer doing this. Since he didn’t object at the time, that objection is waived. Since it was waived, SCOV has to examine the issue under a plain error analysis. SCOV finds that this was not plain error because it didn’t lead to prejudice such that it was a miscarriage of justice. Mr. Bangoura does not contest that the prior conviction exists. Unfortunately for him, that shoots a little bit of a hole into his argument. He essentially sought a new trial about a point that is not in contention.

SCOV also finds that even if there had been no stipulation, it’s almost certain the jury would have made the finding of the prior conviction. The State proved the prior by using a certified copy of the court record showing the conviction. If the State had showed that certified record to the jury, SCOV is really pretty certain the jury would have made a finding beyond a reasonable doubt that the prior conviction existed. Then the trial court would have—you guessed it—sentenced him consistently with the law of second offense DUI.

So, this one’s affirmed.

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