January 19, 2024: I See What You Did There

By Andy Delaney

This week’s case is primarily about non-witness identification from video and stills. 

Some dude robs a convenience store in Highgate wearing a hoodie, beanie, and mask. He tells the clerks he has a gun. It might be Mark Zuckerberg for all we know at this point. There’s video of the event. The clerks can’t identify him. Enter a Vermont-State-Police-generated Facebook post and a person who recognizes defendant’s distinctive eyes and things start to focus. The defendant’s PO and a manager of a sober house also identify defendant. The police officer in charge of the case then starts interviewing defendant’s family members and several recognize defendant as the person in the stills and video. After they identify defendant, the officer shows them a picture of defendant to make sure they’re talking about the same person. She doesn’t, however, instruct them not to talk with each other about it.

So, defendant—who has a felonious history—gets charged with assault and robbery with a deadly weapon with a habitual offender enhancement. He moves to suppress the family identifications from the video and stills on the grounds that the interviews were unreasonably suggestive. The trial court doesn’t bite and after an evidentiary hearing denies the motion.

At trial, defendant moves for acquittal but the trial court denies it, finding that the state adduced admissible evidence meeting all the elements of the offenses. The state asks for a lesser-included charge on the assault and robbery—sans weapon—and gets it with no objection from the defense. The jury acquits on the with-a-deadly-weapon front, but convicts for assault and robbery and habitual offender. At sentencing, the trial court mentions plea deals often get lesser sentences in the context of finding that defendant wasn’t taking responsibility for his misdeeds.

Defendant appeals, arguing that the trial court should’ve suppressed the out-of-court identifications, should’ve granted his motion for acquittal, and ought not have punished him for exercising his right to a trial. On appeal, SCOV reasons that the identifications were not overly suggestive. While SCOV acknowledges that the family members knowing that others had potentially identified defendant already is “not ideal,” it’s not fatal because the circumstances don’t “give rise to a very substantial likelihood of irreparable misidentification.” SCOV accordingly punts on defendant’s state-constitution-based argument about non-police-created suggestiveness—that due process applies regardless.

On the denial-of-acquittal front, SCOV doesn’t make any surprise moves. There was evidence. It tended to show guilt. No error denying the motion.

Finally, SCOV takes up the vindictive-sentencing issue. SCOV reasons that there was no vindictiveness evident here. First, the court sentenced defendant to less than the maximum and less than the State asked for. Next, SCOV reasons that the majority of the trial court’s statements at sentencing were focused on legitimate sentencing considerations. The comment about plea deals—in context—simply was in reference to defendant’s refusal to take responsibility (and that’s a legit sentencing consideration). SCOV finds no abuse of discretion in sentencing and affirms. State v. Bockus, 2024 VT 4.