State v. Davis

CourtUnited States State Supreme Court of Vermont
Citation2020 VT 20
Docket NumberNo. 2018-319,2018-319
PartiesState of Vermont v. Kirby Davis
Decision Date13 March 2020

2020 VT 20

State of Vermont
Kirby Davis

No. 2018-319

Supreme Court of Vermont

October Term, 2019
March 13, 2020

: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windham Unit, Criminal Division

Michael R. Kainen, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and Howard, Supr. J. (Ret.), Specially Assigned

¶ 1. HOWARD, Supr., J. (Ret.), Specially Assigned. Defendant appeals her convictions for heroin trafficking and conspiracy to commit heroin trafficking following a jury trial. She argues that the trial court erred in: (1) denying her motion for judgment of acquittal because the State failed to prove the weight of the seized drugs; (2) admitting an out-of-court statement by a deceased co-conspirator; and (3) responding to a question raised by the jury regarding the elements of the conspiracy charge. We affirm.

¶ 2. Defendant was charged with the crimes above following an October 2014 traffic stop. The following evidence was presented at trial. The arresting officer testified that he and another officer approached defendant's car after the stop. Defendant was driving and another

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female, A.G., was in the front passenger seat. The officer observed what appeared to be track marks on both individuals' hands. Defendant was extremely nervous. After exiting the car, defendant told the officer that she had picked A.G. up in Hartford, Connecticut as a taxi fare. A.G. recounted a different version of events. A.G. said that she had traveled from Newport, Vermont with defendant and that they had dropped someone off at a bus station in Greenfield, Massachusetts.

¶ 3. Defendant subsequently consented to a search of her car. The arresting officer found drug paraphernalia inside the car, including syringes, a shoelace, a spoon, and Q-tips in the center console. He found plastic wrap on the floor of the car and an empty container of plastic wrap in the trunk. The officer also discovered a black plastic bag hidden in the trunk. Inside the bag were two tubular-shaped items wrapped in clear plastic wrap, which the officer suspected contained heroin. Defendant and A.G. were arrested. During a search incident to arrest, the officer found 14 individual wax bags of suspected heroin in defendant's front left pocket.

¶ 4. Photographs of the seized evidence were admitted into evidence. These included the tubular items, the 91 bundles discovered inside the wrapped material, and individual stamped wax-paper bags from the bundles.1

¶ 5. A forensic chemist from the Vermont Forensic Laboratory testified to the content and weight of the seized material. He explained at the outset that there was not enough instrument or analyst time to test all the materials in large cases such as this one. Instead, the lab followed guidelines created by the United Nations Office of Drugs and Crime and the European Network of Forensic Science Institutes for statistical-based sampling; the guidelines rely on "a random sampling, with a hypergeometric distribution statistical-based sampling." This practice was accepted in the scientific community and followed here. The chemist's photographs of the seized

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material were discussed and admitted into evidence. The drugs themselves, inside evidence bags, were also admitted.

¶ 6. Following the guidelines, the chemist placed all 910 bags in a draw-bag and randomly chose twenty-eight bags to be tested. He also tested one of the fourteen bags seized from defendant's pocket. It took two days to test 28 bags. The chemist estimated that it would take more than 30 days to test all the bags and it would generate a report of more than 4000 pages.

¶ 7. The chemist weighed the powder inside each randomly selected bag. He described the various tests he performed that allowed him to conclude that all 28 bags contained heroin. The guidelines provided a statistically based confidence level based on testing 28 bags in a case involving 1000 or fewer bags. Relying on this, the chemist concluded with 95 percent confidence that 90 percent of the remaining bags contained heroin. The chemist explained that in applying the guidelines he had to ensure that the items were homogenous and similar in style.

¶ 8. The chemist then discussed his report, including the weight of the materials tested. The heaviest material in the tested bags weighed 41 milligrams and the lightest weighed 15.7 milligrams. The chemist noted that this range was not uncommon. The total weight of the powder in all 28 bags was 600.7 milligrams. The State then presented additional evidence, which we discuss below.

¶ 9. Defendant moved for a judgment of acquittal at the close of the State's case, arguing that the State failed to prove that she trafficked, or conspired to traffic, the amount of heroin required by statute. She asserted that there had been no testimony as to the weight of the drugs or what one could extrapolate the weight to be, and that it was not up to the jury to make those calculations.

¶ 10. The State responded by citing the chemist's testimony above. It explained that the average weight for the tested bags, as reflected in the State's admitted exhibit, was 21.5 milligrams. The chemist had concluded with 95% confidence that 90% of the remaining bags contained heroin.

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The State asserted that it was simple math to calculate the weight of the heroin. Assuming an average weight of 21 milligrams multiplied by 793 bags resulted in 16,653 milligrams, or more than 16 grams of heroin, well above the statutory requirement of 3.5 grams for trafficking and at least 10 grams in the aggregate for the conspiracy charge. The State engaged in a similar calculation using the lightest bag rather than the average weight, which also exceeded the statutory requirements. The State maintained that the jury could reasonably infer from the evidence that the statutory weight threshold was satisfied.

¶ 11. The court agreed with the State and denied defendant's motion for judgment of acquittal. It reviewed out-of-state case law and other authority regarding statistically based sampling and found that a majority of states allowed extrapolation. The court also looked at the seized drugs. Because the way in which the evidence had been packaged, however, it was unable to look closely at the majority of the bags to compare them with the random sample. The court nonetheless concluded that the State had presented sufficient evidence to allow the jury to reach a conclusion as to weight. It cited the chemist's testimony that the random sample was statistically significant enough to project with confidence the content of the remaining bags. The court found the evidence equally sufficient to assume that the random sample was sufficiently representative of the remaining bags to allow one to conclude that the remaining bags contained as much heroin as the lightest bag in the random sample. While it would have been better practice for the State to have had a witness run through the mathematical calculation, the court found it appropriate to allow the jury to do the uncomplicated math here.

¶ 12. Following the court's ruling, defendant presented evidence on her behalf. She did not renew her motion for judgment of acquittal at the close of the evidence, however, or file a post-verdict motion for judgment of acquittal. The jury convicted defendant of both counts and this appeal followed.

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I. Motion for Judgment of Acquittal
A. Preservation

¶ 13. Defendant first challenges the court's denial of her motion for judgment of acquittal. She acknowledges that she failed to renew her motion either after presenting her case or post-verdict. Defendant contends that she should not have to comply with these requirements because her limited evidence did not bear on the argument raised in her motion for judgment of acquittal. She suggests that this approach is consistent with the plain language of Vermont Rule of Criminal Procedure 29 and the rule's "ultimate concern" of allowing a court to consider additional relevant evidence impacting the earlier request for judgment of acquittal.

¶ 14. We reject defendant's arguments, which are at odds with our caselaw and with federal caselaw interpreting the identical federal rule. While not explicitly stated in the rule, we have long held that a defendant who fails to renew a motion for judgment of acquittal "either at the close of the evidence or within ten [(now fourteen)] days after the jury ha[s] rendered its verdict" waives his or her "right to challenge the sufficiency of the evidence." State v. Noyes, 2015 VT 11, ¶ 41, 198 Vt. 360, 114 A.3d 1156 (citing cases so holding); State v. Faham, 2011 VT 55, ¶ 15, 190 Vt. 524, 21 A.3d 701 (same).

¶ 15. Federal courts impose the same requirements under the identical federal rule. See Reporter's Notes, V.R.Cr.P. 29 (noting that V.R.Cr.P. 29 is "identical to Federal Rule [of Criminal Procedure] 29" with exception (since changed) of 10-day, rather than 14-day, post-verdict filing deadline). Under the federal rule, a defendant who offers evidence after the denial of his or her motion for judgment of acquittal at the close of the State's case thereby waives "the issues raised by the [earlier filed] motion." Id.; see also 2A C. Wright, et al., Federal Practice and Procedure § 469 (4th ed. 2018) (reciting same rule). Federal cases hold that the failure to renew the motion either at the close of the evidence or...

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  • State v. Davis
    • United States
    • United States State Supreme Court of Vermont
    • March 13, 2020
    ...2020 VT 20State of Vermont v. Kirby DavisNo. 2018-319Supreme Court of VermontOctober Term, 2019March 13, 2020 NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the......

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