State v. Atherton
| Decision Date | 26 February 2016 |
| Docket Number | No. 14–273.,14–273. |
| Citation | 144 A.3d 311,2016 VT 25 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Jason ATHERTON a/k/a Melton. |
Christopher C. Moll, Orleans County Deputy State's Attorney, Newport, for Plaintiff–Appellee.
Matthew F. Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant–Appellant.
Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.
EATON
, J.
¶ 1. Defendant appeals from a judgment of conviction of sexual assault, in violation of 13 V.S.A. § 3252(a)(1)
. He contends: (1) the seating of two biased jurors deprived him of his right to an impartial jury; (2) the trial court committed prejudicial error by prohibiting him from using a prior conviction to impeach a witness; and (3) the prosecutor's comments during closing argument violated his right to a fair trial. We affirm.
¶ 2. The events that resulted in this conviction and appeal occurred during the late evening and early morning hours of October 26 and 27, 2012. All of the principal witnesses—the complainant K.M. and her two friends, M.B. and H.D.—testified that, along with defendant, they met at M.B.'s apartment in the City of Newport on the evening in question before driving to a bar in the Town of Barton. All of the witnesses recalled that several of them, including K.M., consumed alcohol and smoked marijuana before they entered the bar, but denied the use of any other drugs. All of the witnesses further testified that, after leaving the bar, they returned to M.B.'s apartment with defendant. All confirmed that K.M. and M.B. went to sleep in the bedroom, while H.D. and defendant went to sleep on a pull-out couch in the living room.
¶ 3. H.D. testified that, sometime thereafter, she felt the weight shift on the couch as defendant got up, and that she subsequently awoke to the sound of K.M. and M.B. screaming. H.D. then observed M.B. yelling at defendant, “[t]aking swings at him and pushing him out the door,” and saw K.M. “curled up in a fetal position hysterical and sobbing.”1
¶ 4. M.B. testified that she awoke “to the bed moving” and saw defendant on top of K.M. She observed that K.M. appeared to be asleep because she was lying on her back and snoring, and defendant “was in between her legs with his face right in her face.” K.M. was naked and exposed. It appeared to M.B. that defendant was engaged in sexual intercourse, although she could not see clearly to confirm this. M.B. testified that she immediately yelled at defendant and pushed him off of K.M., hit him, and physically forced him out of the apartment.
¶ 5. K.M. testified that she awoke to the sound of M.B. screaming at defendant to “get off of her,” and saw defendant on top of her. She was naked, and felt defendant's penis inside of her. She recalled that, after M.B. forced defendant off of her, she “curled in a fetal position and cried.” K.M.'s mother brought her to a hospital, where she underwent a sexual-assault examination, and was interviewed by an officer with the State Special Investigations Unit. The examination revealed no identifiable sperm, and DNA samples from K.M.'s underwear did not match defendant.
¶ 6. The investigating officer testified that she interviewed defendant two days after the incident. Defendant confirmed that he was with H.D., M.B., and K.M. on the evening in question and that he returned with them to M.B.'s apartment, but indicated that he then left. Defendant introduced the officer's arrest summary, which noted that defendant also reported the use of drugs that evening, including the snorting of Ritalin
.
¶ 7. Defendant moved for judgment of acquittal at the conclusion of the State's case. The court denied the motion. Defendant chose not to testify, and the defense rested without presenting any evidence. Following closing arguments and the court's instructions, the jury returned a verdict of guilty. This appeal followed.
¶ 8. Defendant contends that his constitutional right to an impartial jury was violated by the empaneling of two allegedly biased jurors. The claim is predicated on the written responses of two jurors on questionnaires distributed prior to the jury voir dire. Both checked the “Yes” boxes in responding to a series of questions as to whether they had “ever known anyone who was a victim” of lewd and lascivious conduct or sexual assault, and, if so, whether it “would affect [their] ability to be fair and impartial.” As discussed more fully below, defense counsel referred specifically to these questions during voir dire, observing: 2 Counsel then asked whether As counsel's last statement indicates, none of the jurors expressed any difficulty with being impartial based on knowing someone who had been the victim of a sexual offense. Defendant did not challenge any of the jurors for cause on this basis. Both of the jurors in question here were subsequently empaneled and sat on the jury which heard the case, and both voted to convict.
¶ 9. Parties may raise for-cause challenges to prospective jurors at any time before the jury is empaneled, V.R.Cr.P. 24(b)
, but “the right to challenge a juror is waived by a failure to object before the jury is impaneled if the basis for the objection is known or might, with reasonable diligence, have been discovered during voir dire.” State v. Bruno, 2012 VT 79, ¶ 33, 192 Vt. 515, 60 A.3d 610 (quotation omitted). The record here, as noted, shows that defense counsel was aware of the potential issue of juror bias raised by the questionnaire responses, but did not challenge any juror for cause on that basis. Therefore, we evaluate defendant's claim solely for “plain error ... [which] is obvious and strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice.” Id. (quotation omitted).3
¶ 10. Criminal defendants have a constitutional right to trial by an impartial jury, and courts “must safeguard this right by excluding from the jury persons who evince bias against the defendant.” State v. Sharrow, 2008 VT 24, ¶ 6, 183 Vt. 306, 949 A.2d 428
; see U.S. Const.amend. VI (); Vt. Const. ch. I, art. 10 (). We generally divide juror challenges for cause into two categories: “(1) those based on actual bias, and (2) those grounded in implied bias.” Sharrow, 2008 VT 24, ¶ 7, 183 Vt. 306, 949 A.2d 428. A prospective juror has an actual or fixed bias “when, through his or her answers to questions posed on voir dire, the potential juror evinces a state of mind inconsistent with deciding the case fairly.” Id. ¶ 8. This may take the form of statements suggesting that a juror “may have trouble putting aside ... prejudices, making a decision based only on the evidence, or applying a burden of proof or law.” Id. The second category of cases, involving an “implied” or presumed bias, is generally found where a juror has “some relationship to a participant” in the trial from which the court will infer bias as a matter of law. State v. Percy, 156 Vt. 468, 478, 595 A.2d 248, 254 (1990) ; see also Sharrow, 2008 VT 24, ¶ 14, 183 Vt. 306, 949 A.2d 428 (). No issue of implied bias is raised in this case; the question is one of actual or fixed bias.
¶ 11. We accord substantial deference to the trial court's ruling on the exclusion of a juror for cause. As we have explained, the trial court occupies “a unique position to evaluate juror bias ... since an appellate court [cannot] easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses.” Sharrow, 2008 VT 24, ¶ 11, 183 Vt. 306, 949 A.2d 428
(quotation omitted); see also Percy, 156 Vt. at 478, 595 A.2d at 253 (). Indeed, we have held that “[t]here are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury.” Sharrow, 2008 VT 24, ¶ 11, 183 Vt. 306, 949 A.2d 428 (quotation omitted).
¶ 12. With this background in mind, we have little difficulty concluding that the empaneling of the two jurors in question was not error, much less plain error. Written questionnaires of the kind utilized here are designed to assist the voir dire examination by identifying potential juror biases, but they are not the equivalent of, or a substitute for, the voir dire process itself. See, e.g., State v. Perez, 2006 VT 53, ¶ 23, 180 Vt. 388, 912 A.2d 944
(). As noted, a trial court's rulings on juror bias are accorded the highest degree of deference precisely because they rest on a voir dire examination in which the “decisionmaker ... heard and observed the...
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State v. Webster
...case were not sufficiently prejudicial to warrant reversal. 4. See, e.g., State v. Ladue, 2017 VT 20, ___ Vt. ___, ___ A.3d ___; State v. Atherton, 2016 VT 25, ___ Vt. ___, 144 A.3d 311; State v. Madigan, 2015 VT 59, 199 Vt. 211, 122 A.3d 517; State v. Groce, 2014 VT 122, 198 Vt. 74, 111 A.......
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State v. Webster
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State v. Larkin, 16–315
...evidence is of "limited probative value" or likely to have minimal impact, the error is more likely to be harmless. See State v. Atherton, 2016 VT 25, ¶ 25, 201 Vt. 512, 144 A.3d 311 (finding harmless erroneous exclusion of evidence that witness had prior conviction for providing false info......
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State v. Larkin
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