State v. Couture

• Decision Date: 06 September 1985
• Docket Number: No. 83-307,83-307
• Citation: 502 A.2d 846,146 Vt. 268
• Parties: STATE of Vermont v. Alvah C. COUTURE.
• Court: Vermont Supreme Court

Page 846

502 A.2d 846

146 Vt. 268

STATE of Vermont v. Alvah C. COUTURE.

No. 83-307.

Supreme Court of Vermont.

Sept. 6, 1985.

John A. Rocray, Windham County State's Atty., and Susan K. Sively, Deputy State's Atty. (On the Brief), Brattleboro, for plaintiff-appellee.

William A. Nelson and Henry B. Hinton, Appellate Defenders, Montpelier, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

GIBSON, Justice.

Defendant appeals his convictions for kidnapping, 13 V.S.A. § 2401, and simple assault, 13 V.S.A. § 1023(a). He raises three claims on appeal: (1) although defendant was charged, in a single count, with forcibly confining five people, the court erroneously instructed the jury that defendant could be convicted for confining "any one of the five"; (2) the court erred in sustaining the Fifth Amendment claim asserted by a witness who had already been adjudicated guilty; and (3) the court erred by excluding evidence of a complainant-witness's prior conviction. We affirm the simple assault conviction but reverse the kidnapping conviction on the first-stated ground.

I.

The State charged defendant, in a single count, under 13 V.S.A. § 2401, as being "a person who, without legal authority forcibly confined another person within this state against his will, to wit, Mark Elli[so]n, Deborah Benware, Pam Alexander, Wayne Coulombe, and Alphonzo Welch...." At the close of the evidence, the court recited that count verbatim to the jury. However, the court then stated, and repeated it is sufficient for a finding of guilt if you find beyond a reasonable doubt that the defendant intentionally forcibly confined at a place in Vermont without legal authority and against his will, any one of the five alleged victims....

(Emphasis supplied.)

At a chambers conference held before delivery of the jury instructions, defendant objected to the proposed jury instruction, because the single kidnapping count alleged that he had confined not one, but five, people. Theorizing that the kidnapping of each alleged victim was a lesser-included defense under V.R.Cr.P. 31(c), the court suggested that the proposed charge was beneficial to defendant. Not only did defendant not risk serving five consecutive sentences if convicted, the court explained, but also, if defendant were acquitted, "the State can't go ahead and retry him on any one of the particular persons rather than the group.... If the jury found him not guilty, they will necessarily have found there is insufficient evidence to find him guilty against any one of the five victims. So there's a lot of benefit to be gained here." Surmising that the jury would be "thinking in terms of blocks," the court asked why it should instruct differently. Defense counsel then expressly accepted the proposed instruction: "The defense doesn't object to the charge."

Despite this concession by defense counsel, we conclude that the conviction must be reversed because, in the circumstances, the court's instructions constituted plain error. State v. D'Amico, 136 Vt. 153, 157, 385 A.2d 1082, 1085 (1978).

The instructions on the single kidnapping count gave the jury multiple ways to convict defendant but did not require the jury to identify which person or persons all twelve jurors agreed had been kidnapped. Nor did the instructions explain that all twelve were required to reach unanimous agreement as to which person or persons the jury found had been kidnapped.

When two or more offenses are properly joined in an information, each offense must be stated in a separate count. V.R.Cr.P. 8(a). Reciting more than one criminal charge in a single count constitutes "duplicity"; in that situation, "[a] general verdict of guilty will not reveal whether the jury found the defendant guilty of one crime and not guilty of the others, or guilty of all." 1 C. Wright, Federal Practice & Procedure § 142, at 475 (2d ed. 1982); see State v. Bonilla, 144 Vt. 411, 414, 477 A.2d 983, 985 (1984) ("[w]here multiple acts are involved, each of which could have constituted a separate offense, ... [t]he State should be required to select the particular act upon which it relies...."); V.R.Cr.P. 8, Reporter's Notes (duplicitous count can cause confusion in verdict, at sentencing, and on appeal).

Duplicity is not an automatically fatal flaw in an information, because timely amendment can segregate improperly joined charges. See Trounce v. State, 498 P.2d 106, 111 (Alaska 1972); Carman v. State, 658 P.2d 131, 139 (Alaska Ct.App.1983); V.R.Cr.P. 7(d). Nor is reversal warranted where a defendant does not object, before verdict, to the form of a charge of which he was fairly informed and not prejudiced. State v. Lamelle, 133 Vt. 378, 379, 340 A.2d 49, 50 (1975) (distinguishing substantial defects from formal ones); State v. Provencher, 128 Vt. 586, 589, 270 A.2d 147, 149 (1970) (same).

In this case, the allegations of confinement of multiple victims could have been stricken from the information on defendant's motion, as surplusage, V.R.Cr.P. 7(c), but this was not done. Requiring the State to prove that defendant forcibly confined all five people, with a jury instruction to this effect, would have caused defendant no prejudice. However, the court did not treat the information as a statement of a single count. Instead, the court permitted the jury to find defendant guilty of several counts of forcible confinement under a variety of inadequately differentiated or explained factual possibilities.

A similar error occurred in the case of Wicks v. Lockhart, 569 F.Supp. 549, 565-67 (E.D.Ark.1983). In Wicks, the indictment charged two counts of rape, but, during trial in state court, the court's instructions simply asked the jury to decide whether defendant "was guilty of rape." Id. at 566. The federal district court granted habeas corpus relief because the instructions had relieved the State of its burden to prove each and every element of each offense charged beyond a reasonable doubt. Id. at 567-68.

The possibility existed in Wicks that not all jurors believed the defendant guilty of the same count or counts. Id. at 566. The same is true in the present case. Although the court told the jury that multiple ways existed to find defendant guilty of kidnapping, the court did not divide the information into multiple counts; it did not require special verdicts by the jury, identifying each person unanimously concluded to have been forcibly confined; nor did it explain that unanimity regarding the confinement of each person was required.

In Vermont, a criminal defendant has a constitutional right to be tried by a common law jury of twelve, State v. Hirsch, 91 Vt. 330, 335-36, 100 A. 877, 879 (1917), "without the unanimous consent of which jury, he cannot be found guilty...." Vt. Const. ch. I, art. 10 (emphasis supplied). The jury instructions in this case violated the Vermont Constitution by permitting the jury to convict defendant for kidnapping, without assuring its unanimity regarding the essential element of defendant's confinement of a particular person. Even though defense counsel expressly waived objection, it was plain error, V.R.Cr.P. 52(b), for the court to overlook the state constitutional requirement of a unanimous verdict on an essential element simply because the parties were "thinking in terms of blocks." The error was obvious and struck "at the very heart of defendant's constitutional rights." State v. Turner, 145 Vt. 399, 403, 491 A.2d 338, 340-41 (1985). Therefore, despite defense counsel's acceptance of the instruction, we reverse the kidnapping conviction. D'Amico, supra, 136 Vt. at 157, 385 A.2d at 1085; cf. Wicks, supra, 569 F.Supp. at 567 (rarity of situation and egregiousness of harm justified relief).

II.

Defendant also seeks reversal of his simple assault conviction, arguing that the court erred by allowing a convicted witness to invoke the Fifth Amendment's privilege against self-incrimination.

The affidavits supporting the charges described acts that defendant allegedly committed in concert with a certain Joseph Parda. By pretrial motion, defendant sought an order holding prospective defense witness Parda in contempt if he refused to testify. ¹

Parda had been separately charged and, upon a plea of nolo contendere, was adjudicated guilty. He did not appeal. After beginning to serve his sentence, Parda initiated efforts to withdraw his plea; however, at the time of the hearing on defendant's pretrial motion, Parda's application had been dismissed as filed in the wrong forum. When Parda said that he planned to file a new application in the proper forum, the court permitted him to refuse to answer questions as he chose. Although the court stated that it would consider Parda's assertions of privilege on a question-by-question basis, it also gave him free rein: "If someone asks you again your name, it's up to you."

We conclude that the court erred when it permitted Parda to invoke a privilege without showing that his proposed collateral attack had merit; the court also erred in granting a privilege of unlimited scope.

The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any Criminal Case to be a witness against himself...." No plea of nolo contendere may be accepted unless the defendant is informed of, understands, and waives this privilege. V.R.Cr.P. 11(c)(4); see Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) (plea involves voluntary and understanding waiver of privilege against self-incrimination); State v. Hamlin, 143 Vt. 477, 480-81, 468 A.2d 557, 559 (1983) (same).

"It is established law that because a witness has been found guilty of the actions in question he is no longer entitled to claim the privilege of the fifth amendment with respect to those matters and he may be compelled to testify about them." United States v. Heldt, 668 F.2d 1238, 1253 (D.C.Cir.1981), cert. denied, 456 U.S. 926...