State v. Blackmer, 93-149

• Decision Date: 23 July 1993
• Docket Number: No. 93-149,93-149
• Citation: 160 Vt. 451,631 A.2d 1134
• Parties: STATE of Vermont v. Charles BLACKMER.
• Court: Vermont Supreme Court

Page 1134

631 A.2d 1134

160 Vt. 451

STATE of Vermont v. Charles BLACKMER.

No. 93-149.

Supreme Court of Vermont.

July 23, 1993.

Christopher C. Moll, Windham County Deputy State's Atty., Brattleboro, for plaintiff-appellee.

Robert J. Appel, Defender Gen., and William A. Nelson, Appellate Atty., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Defendant appeals a decision that he be held without bail, arguing that (1) the State did not establish that the evidence of guilt was great as is required by the Vermont Constitution in a denial of bail; (2) even if the constitutional right is inapplicable, the trial court abused its discretion in denying bail; and (3) the denial of bail deprived defendant of both substantive and procedural due process of law. We affirm.

On January 6, 1993, defendant was served with a temporary restraining order for relief from abuse prohibiting him from approaching his former girlfriend. On January 9, 1993, he was arrested for violating the restraining order and then released on conditions that he abide by it. One day later, on January 10, 1993, he was again arrested for violating the order. Because he had been released on condition he abide by the order, he was also charged with violating the condition of release. On January 12, 1993, he was released on conditions, including that he not consume alcohol or have probable cause found that he had committed a felony.

On February 23, 1993, defendant was charged with aggravated sexual assault on a nine-year-old girl, a crime for which the maximum punishment is life imprisonment. See 13 V.S.A. § 3253(b). The alleged crime occurred on February 22, while defendant was free on conditions of release from the earlier charges. At the time of arrest, his blood-alcohol level was tested at .09%. After a bail review hearing, the court ordered defendant to be held without bail, for the following reasons:

His argument that he has "seen the light," while attractive, is less than convincing. In fact, it is not believed by this court. Were it a single order that had a single violation, it would be one thing. These are multiple orders and have multiple violations and the court concludes that the defendant is simply not motivated to abide by orders of the court.

The court referred to defendant as "seeing the light" because that was defendant's position as to why he should be released on conditions.

Defendant first argues that he may not be held without bail under Vermont Constitution chapter II, § 40 and 13 V.S.A. § 7553 because, although he is charged with an offense punishable by life imprisonment, the court could not find that "evidence of guilt is great." Chapter II, § 40 of the Vermont Constitution for offenses not punishable by life imprisonment states that there is a constitutional right to bail, but there is no constitutional right to bail for offenses punishable by life imprisonment where the evidence of guilt is great. Thus, defendant argues that the right to bail exists where a defendant faces a punishment of life imprisonment if the State fails to show that evidence of guilt is great. Defendant argues that this is such a case.

This Court has determined that evidence meets the constitutional threshold if it meets the standards of V.R.Cr.P. 12(d) for establishment of a prima facie case. See State v. Duff, 151 Vt. 433, 440, 563 A.2d 258, 263 (1989). Under that standard, the State must establish "by affidavits, depositions, sworn oral testimony, or other admissible evidence 'that it has substantial, admissible evidence as to the elements of the offense ... sufficient to prevent the grant of a motion for judgment of acquittal at the trial.' " Id. at 439, 563 A.2d at 263 (quoting V.R.Cr.P. 12(d)(2)). The Court emphasized that this standard adds two elements beyond that necessary for establishing probable cause: "(1) that substantial, admissible evidence of guilt exists, and (2) the evidence can fairly and reasonably convince a fact-finder beyond a reasonable doubt that defendant is guilty." Id. at 440, 563 A.2d at 263 (emphasis in original). In a later case, this Court emphasized that this standard "cannot be met by inadmissible evidence." State v. Passino, 154 Vt. 377, 381, 577 A.2d 281, 284 (1990).

The admissibility requirement imposed in Passino and Duff refers to admissibility of the evidence at trial. For purposes of analysis, we can view the process created by those decisions as involving two steps: (1) whether the State has shown evidence that can fairly and reasonably convince a fact-finder beyond a reasonable doubt that defendant is guilty, and (2) whether the State has shown this evidence will be admissible at trial.

Defendant asserts that the court ignored the second step and used inadmissible evidence in concluding that the evidence against him was great. This evidence included a medical record that had not been authenticated, V.R.E. 803; hearsay statements of the family and police that were inadmissible because the child victim was not available to testify, V.R.E. 804a(a)(2) and (3); and a statement of the child victim that did not name the perpetrator and was not analyzed for trustworthiness, V.R.E. 804a(b). Although the basis for the court's ruling is somewhat confusing, especially in separating out admissibility in the bail hearing from admission at trial, we agree that the court failed to go through the second step of the process. Thus, the bail hearing record does not show that at least part of the evidence considered by the court will be admissible at trial. For example, without a foundation, there is no showing that the medical record will be admissible, a defect admitted by the State at the bail hearing.

The State argues correctly that it may proceed by affidavits. V.R.Cr.P. 12(d)(2). The child victim's affidavit, although it does not name the perpetrator, provides admissible evidence that a crime was committed, the details of the crime, and the availability of the victim to testify. It in turn supports the admissibility of the evidence offered in the affidavits of her mother and another family member by stating the age and availability of the minor. See V.R.E. 804a(a)(1), (3). These affidavits recount the victim telling them what transpired and naming defendant as the perpetrator. The victim's statement occurred shortly after the alleged assault such that "the time, content and circumstances of the statements provide substantial indicia of trustworthiness." V.R.E. 804a(a)(4); see State v. Duffy, 158 Vt. 170, 171, 605 A.2d 533, 535 (1992). Thus, the record establishes that the evidence of the family members will be admissible under the hearsay exception for statements from minor victims of sexual assault crimes. See V.R.E. 804a. Once this evidence is considered, the State has shown that evidence of guilt is great.

We caution that although the record clearly shows the evidence will be admissible in this case, that will not always be so. Trial courts have discretion in the admission of evidence, and normally that discretion must be exercised to determine whether evidence proffered by the State at the bail hearing will be admissible at trial. Failure to do so will often mean that defendant retains the constitutional right to bail.

Defendant makes three arguments why the denial of bail is erroneous even though there is no constitutional right to bail. Before addressing them specifically, we emphasize the narrowness of the question before us. We had occasion recently to explore the constitutional right to bail and the limits it places on the Legislature or the courts to deny bail in specific cases. See State v. Sauve, --- Vt. ----, 621 A.2d 1296 (1993). Except in very limited and special circumstances where the State's interest is legitimate and compelling, a court may not deny bail in the face of the constitutional right. Id. at ----, 621 A.2d at 1301. The Sauve requirements, to the extent they are based on the Vermont constitutional right to bail, do not apply in this case. Instead, the issue we address is whether in the absence of the constitutional right the court may deny bail because of a substantial and very recent record of violations of important conditions of release.

We also emphasize that we are not conducting a de novo proceeding on whether to grant bail in this case. Our standard of review is set forth in the applicable statute. We must affirm the trial court's decision if it is supported by the proceedings below. 13 V.S.A. § 7556(b).

Defendant's first argument is that the trial court decision is an abuse of discretion. We have held that even where there is no constitutional right to bail the trial court has the discretion to grant bail. See Duff, 151 Vt. at 441, 563 A.2d at 264. We have never comprehensively defined the breadth of a trial court's discretion. Our recent precedents recognize the existence of discretion without setting specific standards for its exercise. See Passino, 154 Vt. at 379, 577 A.2d at 283; Duff, 151 Vt. at 441, 563 A.2d at 264. Although the Legislature has specifically defined the right to bail where the Vermont constitutional provision applies, it has provided only that a defendant charged with a crime punishable by life imprisonment "shall not be bailable as a matter of right" when the evidence of guilt is great. 13 V.S.A. § 7553.

We have, however, defined the court's discretion sufficiently to address this case. The decision that forms the basis of our current law is In re Dexter, 93 Vt. 304, 314-15, 107 A. 134, 138 (1919), which first enunciated the discretion of the trial court to grant bail where the constitutional right is inapplicable. The Court noted that the discretion involved is "sound, judicial discretion, controlled by certain and well defined and established rules," but failed to describe those rules. Id. at 315, 107 A. at 138. It did state:

Ordinarily, in practice, bail is refused...