State v. Nicholas, 2016 VT 92
By: Nicole Killoran
This case is about a bruised child, some interesting jury instructions, and several evidentiary slips. Over the course of a month, the victim, a four-year-old child, came to preschool with two black eyes, a bruise on her face, and one “huge black eye.” DCF was called in. A pediatric nurse examined the child and found more bruises. Among other things, the State charged defendant with one count of domestic assault for the two black eyes, one count of domestic assault for the single black eye, and child cruelty.
At trial, the trial court didn’t tell the jury it had to be unanimous about which injury defendant was guilty of causing. Defendant didn’t ask for those instructions either. Defendant got a directed verdict on a domestic assault count for bruises on the child’s body. The jury came back with not-guilty on the two black eyes, and guilty on the single black eye and child cruelty. Defendant appealed.
On appeal, Defendant wants to argue about the trial court’s lack of unanimity instructions. He also complains about multiple slip-ups the State made eliciting testimony during trial.
The SCOV picks up the unanimity issue first. It has to look for plain error (“obvious error”) and prejudice that puts the fairness of the proceedings in question, and it’s no exception when defendant didn’t object to the jury instructions below. It’s a pretty difficult argument to make for the defense—the SCOV will only reverse in “rare and extraordinary cases.”
Defendant’s complaint here is on the child-cruelty charge. He argues the trial court should have told the jury it had to be unanimous on which of the injuries amounted to child cruelty. To figure out whether the trial court should have required unanimity, the SCOV has to dig into the case law on multiple-acts cases.
Initially, the SCOV picks at defendant’s choice of State v. Couture to bolster his argument. That’s a case that the SCOV has eroded a bit since it came down in 1985. Long story short, the SCOV rejects the idea that a lack of unanimity instructions in multiple-acts cases is automatically (per se) plain error. A defendant who wants to win in a case like defendant’s has to show that the evidence for the multiple acts was distinct (e.g., not “intertwined”), and that he raised different defenses for different acts.
The SCOV backs up its legal standards on this issue by noting what other jurisdictions have done. Most jurisdictions either pick a single act to base the charge on, or give the jury an instruction that it has to be unanimous on which act supports a conviction. But, most jurisdictions also reject the idea of per se plain error if the trial court doesn’t give a unanimity instruction. Other jurisdictions also think that unanimity isn’t necessarily required if neither side puts on evidence that “materially distinguishes” the multiple acts (so that they’re “factually distinct”), or the defendant claims a blanket defense of innocence.
When the SCOV applies everything to the bruised child here, it concludes that the trial court didn’t have to give the jury unanimity instructions on the child cruelty charge. The State’s theory was that the number and nature of the bruises in a short period of time indicated child abuse, not accident. Defendant basically argued that the child was clumsy, got hurt easily, and had a depth perception problem. He threw out some alternative reasons for her black eyes—hitting her head on a bedframe, and running into a doorknob. The kid had some broken blood vessels on her neck, and defendant said those were flea bites. According to the SCOV (or at least the majority, as we’ll see in a bit), defendant’s defense amounted to “I didn’t do it, and you can’t prove I did.” There wasn’t much evidence to distinguish “distinct instances” says the SCOV, so it’s not clear whether the trial court committed any error let alone plain error.
At any rate, says the SCOV, there wasn’t any prejudice to defendant here. The jury figured he was guilty of giving the kid the single black eye (even if it came in at not-guilty for the two black eyes), and that was enough to find child cruelty. Defendant argues on appeal that domestic assault and child cruelty require proof of different mental states (recklessness for the former, willfulness for the latter), but he didn’t argue mental state at trial, he just said he didn’t hurt the kid. It’s “theoretically possible” that the jury could have found that defendant acted recklessly with the single black eye, but willfully with other injuries. That might have prejudiced defendant. But, says the SCOV, even if it’s theoretically possible, it’s not bloody likely, and it doesn’t mean the trial court messed up by not giving the jury a unanimity instruction.
The SCOV looks next at whether the State’s evidentiary slip ups at trial, taken together, unfairly prejudiced defendant. Defendant’s argument on this point is based on a number of “oopsies” in testimony the State elicited. The SCOV can reverse if it thinks these mistakes were a big deal (“miscarriage of justice”), even though individually the mistakes aren’t that big a deal. In this case, the SCOV doesn’t think the cumulative “oopsies” require reversal.
In the State’s opening statement, the prosecutor mentioned that DCF had obtained an “emergency care order.” Defendant objected, and the State didn’t bring it up again. Defendant apparently was asked but declined a corrective instruction. Minor error, says the SCOV.
Later, the prosecutor asked the teacher about the child’s “angry” manner of playing. The trial court had told the State no on these questions, and it didn’t come up again. “Fleeting” mistake with little evidentiary value or prejudicial effect, says the SCOV.
At one point, the teacher also started crying on the stand, and this could have made the jury more sympathetic. But, as soon as she started crying, the trial court said “let’s recess.” It didn’t happen again, and the State’s questions avoided making the teacher cry again. Minimal impact, says the SCOV.
Also, the State asked the teacher (or a different witness, it isn’t clear from the opinion) whether she had a “concern” about the child. The SCOV says this was just a “bridge” from the teacher’s testimony that she saw the child’s injury to offering her some ice for her “huge black eye.”
Less so the State’s questions that showed defendant wasn’t living with the child’s mother anymore. That, says the SCOV, was “objectionable,” but “minimally prejudicial, if at all.”
The pediatric nurse who examined the child speculated that the broken blood vessels on the child’s neck could be caused by strangulation. That, says the SCOV, was objectionable and prejudicial. But, the trial court immediately stopped that testimony and line of questioning. And, considering that the jury convicted on the single black eye, the error wasn’t really relevant to the ultimate verdict.
Finally, defendant argues that the trial court shouldn’t have let in evidence of bruises elsewhere on the child’s body that weren’t linked to defendant. But, defendant didn’t object on this below, and the SCOV doesn’t think it was plain error.
The SCOV concludes that defendant doesn’t get a new trial on his “cumulative prejudice” argument anymore than on his unanimity instruction argument. It affirms the trial court.
Justice Robinson pens an interesting dissent in this case, not on the law the majority applies, but because she thinks that law requires reversal in defendant’s case. As is often the case, we learn some facts in the dissent that weren’t quite brought out in the majority. Justice Robinson makes a few compelling points that the majority, nevertheless, dismisses in a footnote in its opinion.
Justice Robinson’s disagreement with the majority boils down to this: she thinks that the State’s evidence showed, with varying strength, that there were distinct and different injuries in this case, and that defendant raised different defenses to each.
First, in the two black eyes incident, the testimony at trial was that the child had “blackened,” but not swollen, eyes. The child’s mother said that, while defendant was watching her, the child had been “flailing” at naptime (a common occurrence in my household, I don’t know about yours), and banged her head on the metal bedframe. The pediatric nurse testified that a blow to the head could result in blackened/discolored eyes, without swelling. Defendant argued in closing on this domestic assault count that the testimony supported his defense of the kid headbutting the bedframe. Justice Robinson opines that this must have been an effective defense, because this was the count on which the jury acquitted.
Second, in the other bruising incident (where the child came to school with a bruise on her face), the State didn’t prove that the child was in defendant’s care at the time. So, defendant got a judgment of acquittal, although the jury still had the evidence of that bruise when it deliberated on the child cruelty count.
Third, in the single “huge black eye” incident, defendant’s defense was specifically that the kid basically ran into a doorknob during a late-night potty trip. There was testimony at trial on the layout of the bathroom, the bathroom door, and how the injury could be from a roundish object like a ball or body part. And, defendant argued in closing that the evidence supported his defense on this. The jury didn’t buy it, and convicted on domestic assault for the single black eye.
Finally, there was evidence at trial about other injuries elsewhere on the child’s body. The State didn’t try to link these injuries to defendant, but rather just argued that defendant was caring for the child when they happened.
All of this, according to Justice Robinson, adds up to mean that under the rules the majority highlights, it wasn’t a “close call” whether the trial court should have given a unanimity instruction. Other than the generalized “the kid got hurt while she was in your care” argument, the State’s evidence, and the defendant’s defenses, were different for each injury/instance. Justice Robinson finds it very convincing that the jury was swayed on the two black eyes but not on the single black eye.
The dissent goes on to look at a Missouri case that Justice Robinson thinks is on point with defendant’s case. She notes that in that case the court concluded the jury likely convicted on different acts. On this point, Justice Robinson quibbles with the majority’s footnote dismissal by arguing it’s “highly likely” that some of the jurors convicted on the child cruelty count based on evidence other than the single black eye. This just isn’t a case where we can assume the jury relied on a particular act out of multiple acts in reaching its verdict, says the dissent. And, as Justice Robinson points out, even the State had a different theory in its oral argument about which act the jury relied on for its guilty verdict. Reasonable minds differ, and the dissent thinks it is “unlikely” all the jurors in this case convicted based on the same acts.
Defendant tried, but failed, to convince the SCOV that his trial was unfair. Cold comfort, but at least the dissent thinks he has a point.
Comments
Post a Comment