State v. Breed, No. 13–288.

• Docket Nº: No. 13–288.
• Citation: 117 A.3d 829, 2015 VT 43
• Case Date: March 13, 2015
• Court: United States State Supreme Court of Vermont

117 A.3d 829
2015 VT 43

STATE of Vermont
v.
Warren BREED.

No. 13–288.

Supreme Court of Vermont.

March 13, 2015.

117 A.3d 830

Christina Rainville, Chief Deputy State's Attorney, Bennington, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and HAYES, Supr. J., Specially Assigned.

Opinion

HAYES, Supr. J., Specially Assigned.

¶ 1. Defendant appeals jury convictions for sexual assault and sexual assault of a vulnerable adult based on a single incident. He argues that the court erred by:

117 A.3d 831

(1) allowing a three-week separation period between jury selection and the commencement of his trial; (2) denying his motion to dismiss one of the convictions on double-jeopardy grounds; and (3) admitting the hearsay testimony of the complainant's brother under the excited-utterance exception. We vacate the sexual assault conviction on double-jeopardy grounds, but reject defendant's other arguments and affirm his conviction of sexual assault of a vulnerable adult, as well as the sentence imposed for that conviction.

I. Facts and Procedural History

¶ 2. Defendant, who was in his seventies at the time of the incident that led to the charges against him, lived in the same residential facility for disabled adults and senior citizens as the complaining witness, a woman with intellectual disabilities. In February 2012, the State filed an information alleging that sometime in June 2007 defendant: (1) engaged in a sexual act with another person without her consent, in violation of 13 V.S.A. § 3252(a)(1) ; and (2) engaged in sexual activity with a vulnerable adult without her consent, in violation of 13 V.S.A. § 1379(b)(1). The charges were based on a single incident in which defendant lured the complainant into his apartment under false pretenses and then forced her to engage in a sexual act without her consent.

¶ 3. In October 2012, the trial court scheduled a final jury calendar call for January 2, 2013 and a jury draw for January 8, 2013. At the January 2 calendar call, the court set a trial date of January 29, 2013. The trial took place on January 29 and 30, and the jury convicted defendant on both charges. The court denied defendant's motion for judgment of acquittal on the charges as well as his motion for a new trial. The court ruled that the evidence was sufficient to sustain the convictions and rejected defendant's contention that the court had improperly admitted the hearsay testimony of the complainant's brother based on the excited utterance exception.

¶ 4. Following the convictions, but before sentencing, defendant moved to dismiss one of the convictions on double-jeopardy grounds. The trial court denied the motion, concluding that the Double Jeopardy Clause was not violated because the two offenses contained different elements and different punishments, indicating, along with the statutes' purpose sections, that the Legislature intended to permit punishment for both crimes based on a single incident. On July 18, 2013, the court imposed concurrent sentences of three years to life imprisonment for the sexual assault conviction and three-to-twenty years for the sexual assault of a vulnerable adult conviction.

II. Jury Separation

¶ 5. Defendant first argues on appeal that his convictions should be reversed because the trial court allowed a three-week separation period between the jury selection and his trial and then did

not provide an opportunity for supplemental juror examination and challenges, in violation of Vermont Rule of Criminal Procedure 23(d). Because defendant did not object, and in fact acquiesced, to the procedure he now challenges for the first time on appeal, we review this claim under a plain-error analysis. See State v. Yoh, 2006 VT 49A, ¶ 36, 180 Vt. 317, 910 A.2d 853 (“When an issue has been forfeited through a party's failure to raise it below or brief it on appeal, we may consider it only under the rubric of plain error.”). “Plain-error analysis requires us to consider whether these are exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or

117 A.3d 832

where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights.” Id. ¶ 39 (quotation omitted). Thus, the error must be both obvious and prejudicial, such that it affects defendant's substantial rights and the fairness or integrity of the judicial proceedings. Id.

¶ 6. In its present form, Rule 23(d) provides, in relevant part, as follows:

Unless the parties consent to a longer delay, trial must commence not more than 48 hours after jury selection in the case of a felony for which the penalty may be life imprisonment or death, and not more than 30 days after jury selection in any other case. If the commencement of trial is delayed more than 24 hours, the parties shall be entitled to conduct a supplemental examination of the jurors as provided in Rule 24(a) related solely to issues arising from the period of separation and may exercise challenges for cause as provided in Rule 24(b) before the jury is sworn.

This section of subdivision (d) was initially added “to govern jury separation and the timing of the trial after the jury is selected.” Reporter's Notes—1984 Amendment, V.R.Cr.P. 23. As first adopted, the rule did not allow the jury to separate in capital (life imprisonment) cases even if the parties agreed, and gave defendants in every felony case the right to a “pick and go” trial. Id. Rule 23(d) was later amended “to eliminate the absolute right to pick a jury and go to trial immediately in a felony case,” a right that was causing serious problems of delay, especially in small counties that had one jury draw per month. Reporter's Notes—1995 Amendment, V.R.Cr.P. 23. Rule 23(d) was again amended in

2008, this time “to permit up to thirty days to pass between jury selection and trial of felonies not punishable by life imprisonment.” Reporter's Notes—2008 Amendment, V.R.Cr.P. 23.

¶ 7. In this case, at a January 2, 2013 final calendar call, after the January 8, 2013 jury drawing had already been scheduled, the trial court announced to defense counsel and the prosecutor that a one-day jury trial would be scheduled for January 29, 2013. When the court asked if that date made sense, defense counsel responded in the affirmative and then asked if this case was first in line for trial on that date. When the court confirmed that it was, defense counsel responded: “Great, thank you.” The jury was selected, as scheduled, on January 8. At the conclusion of jury selection, the court reminded the jurors as follows:

Again, please do not discuss this case with anyone between now and [January 29]. Don't do any independent research.

If for whatever reason there's something in the newspaper or something comes on the radio, turn the page or turn the dial on the radio so you don't hear anything about it. If something does happen, just report to us and we can deal with it.

At no time during the jury draw did defense counsel object to the three-week separation period that would occur between the time the jury was selected and the trial.

¶ 8. On January 29, 2013, on the first day of trial before evidence was presented, the trial court asked the jurors if any of them had “heard anything about the case or the parties or learned anything about it or done any independent research since” the January 8 jury selection. The court then stated for the record that all of the jurors responded in the negative. Defense counsel did not ask at that time to conduct a supplemental examination of the jurors concerning the separation period or to retain the option to exercise additional challenges

117 A.3d 833

for cause based on any such examination.

¶ 9. Now, for the first time on appeal, defendant argues that the court committed reversible error by not obtaining his consent to allow a separation period beyond forty-eight hours and then by not providing him with an opportunity to examine the jurors about the separation period and potentially to exercise additional challenges

for cause. He presents no evidence of actual juror taint, or even of media coverage about the case during the separation period, but rather states that he need show only the existence of circumstances capable of prejudicing the deliberative function of the jury. He claims that prejudice exists here because the crime is serious enough, and the separation period long enough, for the jurors to be exposed to prejudicial information. According to defendant, that, coupled with what he characterizes as the trial court's weak admonitions, supports a reversal of the convictions here. He further contends that there is plain error because the court's procedure obviously did not comport with the procedures set forth in Rule 23(d), prejudicially impacted his substantial rights provided by the rule, and seriously affected the...