|You can't ride a bicycle with one|
wheel because then it's a unicycle.
By Elizabeth Kruska
This is what happens when a rule is followed to the letter and ends up having an unfortunately bad effect in the long run.
Mr. Heffernan was charged with simple assault and disorderly conduct in 2015 after he and another man got into a sidewalk fight in Burlington. Mr. Heffnernan worked (maybe still works, I don’t know) at Nectar’s. He wears glasses and usually rides his bike to work. The complainant in the case often went to Nectar’s. A bouncer recognized them both.
The bouncer’s version of the facts is that at some point on the night in question, he saw Mr. Heffernan and the complainant having a “close conversation” but he couldn’t really hear what they were saying. A fight started, but he couldn’t see exactly how. A patron at Esox, another bar nearby, also saw the fight and had a similar story.
A couple Burlington Police Department officers were nearby and ran over to the scene when a crowd gathered. One officer, Hartnett, wore a body camera, which captured some of the incident. However, since the incident was in progress when the police arrived, it obviously didn’t show the beginning. There was also an outdoor security camera from Esox that caught some of the incident, but due to the angle and an awning in the way, it only showed the people involved from the knees down. It wasn’t clear from either of those recordings how the fight started.
But. There was another witness, R.C. R.C. was present from the beginning of the incident and went over to another officer—Officer Leclerc, and told him what she saw. Officer Leclerc was also wearing a body camera, and it recorded much of what R.C. told him, although it cut off part of the beginning of her story. Her description was that the complainant actually attacked Mr. Heffernan first. It’s not clear whether she knows the two people, as she described Mr. Heffernan as “the guy with glasses” and said she thought Mr. Heffernan thought the complainant was trying to steal his bike.
So, Mr. Heffernan gets charged with disorderly conduct and simple assault, and he elected to have a jury trial. The parties were ready to go, when the defense learned that R.C., who had been subpoenaed to testify, was in the hospital. Mr. Heffernan filed a motion to continue. Vermont Rule of Criminal Procedure 50(c) provides for a situation where a continuance is needed due to an ill witness.
And this is where the trouble happens.
R.C. was hospitalized in another part of the state, and it was not advisable for her to be discharged to testify. This, unfortunately, came to light about a day or two before the trial was scheduled. Defense Counsel and the State’s Attorney met with the court to advise of the situation, and the Court told Defense Counsel to file a motion to continue, as set out by Rule 50. Defense Counsel stressed to the Court that R.C. was a very important witness, as she was the only person who could give the specific testimony she had—the information about the beginning of the fight. The State objected because the case had already been delayed and the complainant really wanted to see the case move forward.
So, Defense Counsel did what it could, given the situation and the time frame. They filed a motion to continue with a document attached from the hospital, verifying that R.C. was unavailable. There was also an affidavit from the lawyer, indicating that R.C. was necessary, and that although the lawyer had tried to get an affidavit from the doctor, that particular document was unavailable. However, there was other information attached from the hospital, verifying that, yes, R.C. was there and that she should not be discharged.
The trial court said, “Nope. Not an affidavit from the physician, so we’re doing this,” and the trial went forward. The State put on some witnesses to testify. The jury also heard the snippet of recording from Officer Leclerc’s camera, although Officer Leclerc didn’t testify. In closing, the State pointed out that no witnesses testified that the complainant started the fight. The State also commented on the fact R.C wasn’t there but didn’t say why. The jury convicted Mr. Heffernan on both counts, and he appealed.
SCOV reverses and remands for a new trial, on the basis that denying the motion to continue was a boo-boo. Since it’s based on an interpretation of the law, SCOV reviews de novo, or anew, and says the trial court didn’t get it right.
Our good friend, the Sixth Amendment, guarantees a fair trial, including the right of a defendant to present witnesses in his own defense. Usually the witnesses can show up, but sometimes—like if they’re hospitalized—they can’t. The right thing for a defendant to do, at that point, is to file a motion to continue. And if it’s clear that the witness is unavailable, and that the request is not done in bad faith, it should be granted. Because, you know, things happen. Illnesses, blizzards, whatever.
But of course, there might be people who just kind of don’t want to get involved and might say there’s an illness. So, the rule requires that a “reputable physician” provide an affidavit indicating whether the person is available (or not), and whether he or she may subsequently become available.
Here, the trial court denied the defendant’s motion to continue because there was no affidavit from R.C.’s physician saying she couldn’t testify. This all happened quickly, and Defense Counsel rounded up what they could in terms of documentation. SCOV says that it would have been within the trial court’s discretion to grant the motion to continue with the information it got, even though it wasn’t an affidavit. The court could determine that the defense team exercised due diligence in getting what it could to prove to the court that R.C. really was hospitalized, and that she wasn’t just trying to get out of coming to court.
SCOV looks at other situations where continuances have been granted due to witness unavailability. There have been other cases where an affidavit wasn’t required, and the trial court was able to make a finding that a key witness was unavailable based on factual representations by counsel.
Of course, SCOV isn’t encouraging litigants to ignore the affidavit rule. But the point here is that R.C. was a very important witness, and that it was pretty clear from available documentation that she was, in fact, hospitalized. Documentation showing where she was hospitalized, along with a discharge date, was faxed from the hospital to Defense Counsel, who included it with the motion.
The trial court was understandably frustrated that this was happening a day or two before trial. The courts are really backed up, and losing an entire court day that had been set aside for a trial only backs things up more. And while SCOV is sympathetic to this, it emphasized that a defendant’s constitutional right to a fair trial can’t be overtaken by the need for judicial efficiency.
This is especially important in this case, where the defense was one of self-defense. R.C. had vitally important information about how the fight started. Because she wasn’t there, it was prejudicial to Mr. Heffernan in his attempt to defend his case. This only got amplified by the fact the only evidence available from R.C. was the clip of the body camera recording, and the State’s comment that no witness testified about how the fight started. And since there was no explanation to the jury from the court that R.C. couldn’t be there due to being in the hospital, this likely left the jury wondering about R.C. and why she wasn’t there in person.
There's another point of error raised regarding jury selection, but because SCOV reverses on the motion to continue, they don’t tackle that issue here.