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| White Rabbit |
By Elizabeth Kruska
Long story short—this case gets affirmed.
Mr. Perrault was convicted after a trial for three counts of drug possession. Three counts, three different drugs (marijuana, a depressant, and a stimulant). The basic facts are this. Mr. Perrault was hanging out in a convenience store parking lot in downtown Burlington. A police officer drove past a few times, and each time saw Mr. Perrault sort of hanging around, looking generally suspicious. The police officer finally decided to pull in to the parking lot, and found Mr. Perrault sitting in the front seat of a car with a backpack between his knees. The officer asked the driver if he could search the car, and consent was granted. Then he asked Mr. Perrault if he could search the backpack. Eventually Mr. Perrault agreed.
The police found two jars of marijuana in the backpack along with a prescription bottle bearing Mr. Perrault’s brother’s name. Inside were blue pills and red pills. One pill makes you larger, and one pill makes you small. And the ones that mother gives you don’t do anything at all. Wait, no. Those are different pills; ask Alice about them. The pills in this case turned out to be Valium and Ritalin.
Mr. Perrault said the pill bottle was his brother’s (seems true, since it had the brother’s name on it) and he had forgotten to give it to him. It appears the prescription was written for Valium. What wasn’t clear, though, was why the Ritalin was also in the bottle. And also, why it was inside a little plastic baggie inside the bottle. Mr. Perrault gave a story that I won’t try to recreate here, except to say it feels a little bit like a rabbit hole and the police weren’t buying it.
So, Mr. Perrault was charged with possession of marijuana, possession of a depressant, and possession of a stimulant. He had a trial and was convicted. He argues two things on appeal: first, that there was a serious issue with a juror, which should have led to a mistrial; second has to do with sufficiency of the evidence. The Cliff’s Notes version of part two—the court found that even though Mr. Perrault tried to argue that he didn’t know what he had was a stimulant and a depressant, that there was sufficient evidence for the jury to convict him.
The other issue—the one about the juror, is far more interesting. Even so, SCOV affirms on that ground.
We have rules in Vermont about who can serve as jurors. One of the rules is that a juror could not have served a term of imprisonment in Vermont for a felony conviction. As it turns out, one of the jurors on Mr. Perrault’s case had served a term of imprisonment for a federal felony conviction stemming from a drug charge in Nevada back in the 90s. When the juror got out of prison, she served some of her sentence on supervised release in Vermont.
The trial was in February 2015. The deadline for motions was in March. Somehow it came to the defendant’s attention in April 2015 that this particular juror had a prior felony and had served some jail time. The defendant filed a motion asking to voir dire, or question, the juror about this. The juror came in and explained that she was the same person who had the name and prior conviction, and that she had served prison time in the federal system. But she explained that when she filled out the juror questionnaire, she misunderstood what was being asked because of the wording. It also was made clear that her sentence was for a federal charge and that she was never imprisoned in Vermont. She testified that even though she had the prior conviction, that during the course of Mr. Perrault’s trial she was impartial.
Mr. Perrault moved for a new trial, which was denied. The standard to overturn a decision on a motion for a new trial is the abuse of discretion standard. SCOV finds that the trial court was well within its discretion not to grant a new trial on these facts.
First of all, new trial motions, unless they’re based on newly-discovered evidence, have to be filed within ten days. The court concluded that this wasn’t newly-discovered evidence, so the new trial motion was untimely. This is a jurisdictional time limit; if it’s not filed in time, the court can’t consider it. It’s sort of like taking a train; either you’re on it on time or you’re not. Mr. Perrault argued that he had filed other motions within the timeframe permitted by rule, but the part about the juror’s felony came out later.
OK, fine. But the problem is that just because it’s newly-discovered information doesn’t mean it’s going to change the outcome of the trial. That’s what the real question is any time there is newly-discovered evidence after a verdict is rendered. This starts to get a little sticky. When there’s some new information—especially information about a juror—the court can make an inquiry about the new information to determine if it would likely have changed the outcome. But the court cannot invade the sanctity of the jury deliberation process and start asking the juror questions about the topics and process of their deliberation. Here, the juror said she was impartial, and the court had to leave it at that. Therefore, it can’t be said that just because Mr. Perrault subsequently learned that the juror had a prior felony conviction, that had he known sooner (and thus struck this juror from the panel) that the outcome would have been different.
Mr. Perrault argued that the juror would not have been qualified to serve, anyway. SCOV bats this down and points out that the restrictions are the following, and that all must be present at the same time (this feels like I’m writing jury instructions):
(a) Felony;
(b) Term of imprisonment;
(c) Served in Vermont.
Since the juror’s felony was a federal felony, and she never spent any time in prison in Vermont, she was not disqualified from service. Mr. Perrault tried to argue that since she did some of her supervised release in Vermont, that should count as incarceration. SCOV says no. The federal system is a different jurisdiction. Also, although supervised release can be a pain in the neck, it isn’t imprisonment within the meaning of the statute.
Mr. Perrault also argues that since the juror was a felon, she was inherently biased. The way the thought goes is that if someone has served time for a felony conviction that he or she may harbor ill feelings toward the system that imprisoned them. Fair enough. Although, I think one could also make the argument that someone who’s been through the system might be more sympathetic. Po-tay-to po-tah-to. In any case, the defendant complaining of the problem still has to prove that the outcome would have been different had that juror not been in the jury.
Furthermore, it came out during voir dire of the juror that she misunderstood the question on the questionnaire about prior court involvement. She wasn’t trying to be evasive or dishonest, she didn’t understand the question.
So, this one’s affirmed.
Mr. Perrault also argues that since the juror was a felon, she was inherently biased. The way the thought goes is that if someone has served time for a felony conviction that he or she may harbor ill feelings toward the system that imprisoned them. Fair enough. Although, I think one could also make the argument that someone who’s been through the system might be more sympathetic. Po-tay-to po-tah-to. In any case, the defendant complaining of the problem still has to prove that the outcome would have been different had that juror not been in the jury.
Furthermore, it came out during voir dire of the juror that she misunderstood the question on the questionnaire about prior court involvement. She wasn’t trying to be evasive or dishonest, she didn’t understand the question.
So, this one’s affirmed.
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