State v. Duff

• Decision Date: 21 April 1989
• Docket Number: No. 89-001,89-001
• Citation: 563 A.2d 258,151 Vt. 433
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. John M. DUFF.

Page 258

563 A.2d 258

151 Vt. 433

STATE of Vermont v. John M. DUFF.

No. 89-001.

Supreme Court of Vermont.

April 21, 1989.

Philip R. Danielson, Chittenden County Deputy State's Atty., Burlington, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for amicus curiae Office of Atty. Gen.

Before ALLEN, C.J., and PECK, ¹ DOOLEY and MORSE, JJ.

DOOLEY, Justice.

Defendant appeals the December 22, 1988, decision of the district court to deny his motion for a reduction in bail. Since we are unable to find that the trial court decision is "supported by the proceedings below," 13 V.S.A. § 7556(b), we reverse and remand for further fact-finding and a more complete decision consistent with the standards set forth in this opinion.

Defendant is charged with first degree murder and attempted second degree murder. Defendant was tried and convicted of these charges, but the convictions were overturned by this Court because of an error in the jury charge. See State v. Duff, 150 Vt. 329, 554 A.2d 214 (1988). Defendant remains incarcerated in lieu of $100,000 bail on the first degree murder charge and $50,000 bail on the attempted second degree murder charge. This bail was originally set in May, 1985 prior to the first trial.

In 1985, defendant made a motion for reduction of bail, which was denied by the trial court on September 17, 1985. At the hearing on the motion, the trial court stated that bail was to remain at $150,000 for three reasons: the evidence against defendant was strong, his ties to the community were weak, and the risk of flight was great. The September 17, 1985 trial court ruling was not appealed to this Court.

Following the reversal of his conviction, defendant again moved for reduction of bail. The trial court found that the evidence of the State was "quite strong because of the former conviction"; that defendant, if given the opportunity, might flee; that defendant "may continue to constitute a threat to the public safety"; that defendant was indigent; and that defendant was not entitled to bail as a matter of right. Vt. Const. Ch. II, § 40. ² In addition the trial court found that if defendant were charged with a less serious offense he would "doubtlessly qualify ... for release on conditions." See 13 V.S.A. § 7554. The trial court therefore continued the September, 1985 bail of $150,000 and denied the reduction motion.

Defendant argues in this Court that the trial court impermissibly used the bail statute, 13 V.S.A. § 7554, to impose a preventative detention by setting excessive bail. Because the maximum punishment for the charge against defendant is life imprisonment, we asked the parties also to brief the questions of the applicability and meaning of 13 V.S.A. § 7553 to this case. ³ That statute allows a denial of bail based on certain findings where defendant is charged with an offense punishable by life imprisonment.

It is not clear whether the trial court proceeded under the normal bail statute, 13 V.S.A. § 7554, or determined that it had more freedom to impose cash bail requirements under § 7553. We start first with a review under § 7554.

Our normal bail statute implements the constitutional command that criminal defendants are bailable as a matter of right by allowing release during a criminal proceeding on the least restrictive condition that will "reasonably assure the appearance of the person as required." 13 V.S.A. § 7554(a)(1). Thus, the statute sets forth a list of increasingly more restrictive conditions with the requirement that the court go only so far down the list as necessary to ensure appearance. See id. Included on the list are surety bonds or cash in lieu of bond.

Here, the trial court imposed a high cash bail requirement in part based on ensuring defendant would appear for trial. Defendant argues that the amount is so high that it cannot be justified solely by defendant's risk of flight, especially since defendant is indigent. In State v. Cardinal, 147 Vt. 461, 465-66, 520 A.2d 984, 987 (1986), we held that a $250,000 bail condition was not supported by the evidence when defendant, charged with sexual assault, was a lifelong resident of Vermont with a wife and four children. That defendant had been employed by the same company for seventeen years and provided the sole source of income for his family. His prior criminal record consisted of two misdemeanor convictions. To the extent there is a factual record in this case, it shows factors similar to those found determinative in Cardinal. Defendant is a lifelong resident of Vermont. He has numerous friends in the city in which he resided. Apparently, one of those friends offered to provide defendant a home and to take custody of him pending trial. ⁴ He owned a house prior to his incarceration. He has no criminal record.

The sole support for the high cash bail requirement in this case is that defendant is charged with a very serious crime and faces a long period of incarceration. The record contains no evidence on risk of flight beyond the charge. If that alone were sufficient to set a high cash bail amount, the constitutional right to bail would be a nullity for all defendants charged with serious crimes. Accordingly, we cannot find on this record that the trial court had before it sufficient evidence to impose a $150,000 bail requirement. 13 V.S.A. § 7556(b); State v. Parda, 142 Vt. 261, 262, 455 A.2d 323, 324 (1982). ⁵

In reaching this conclusion, it is important to emphasize the limits of this holding. We do not hold that $150,000 bail is excessive solely because this defendant is indigent. The purpose of bail is to assure appearance in court, State v. Pray, 133 Vt. 537, 542, 346 A.2d 227, 229 (1975), and defendant need not be capable of meeting bail in order for the amount to be supported by the record. In this case, however, the total lack of any evidentiary support for the bail amount set requires us to hold that the amount cannot be justified under § 7554 on this record. Thus, we must turn to § 7553 to determine whether the amount can be justified under that statute.

The Vermont Constitution specifically provides that "[p]ersons committed for offenses punishable by death or life imprisonment, when the evidence of guilt is great, shall not be bailable as a matter of right." Vermont Const. Ch. II, § 40. This provision is implemented through 13 V.S.A. § 7553, which provides:

A person charged with an offense punishable by life imprisonment when the evidence of guilt is great shall not be bailable as a matter of right. If the evidence of guilt is not great, the person shall be bailable in accordance with section 7554 of this title.

(emphasis added). Pursuant to this section, if the court finds that the evidence of guilt is great, then the defendant does not have a right to bail. See In re Dexter, 93 Vt. 304, 314-15, 107 A. 134, 138 (1919). The language of the constitution and the statute is sparse. No definition of "great" is presented to guide us, nor is the statute precise as to what options the trial judge has upon making such a finding. To fill in these blanks we must look to how other states have interpreted similar constitutional and statutory provisions.

All but a handful of states have constitutional provisions similar to the one at issue here. ⁶ These provisions are the offspring of the Petition of Right, 3 Car. 1, c. 1 (1627), which provided that for bailable offenses no citizen could be detained before trial if he could meet bail. See Cogan, The Pennsylvania Bail Provisions: The Legality of Preventive Detention, 44 Temp.L.Q. 51, 52 (1970). Accused felons, however, did not have a right to bail. Id. at 53. Felons could be bailed only at the discretion of the King's Bench. While it was considered unjust to detain one before trial if bail could "secure his being amenable to justice," id. at 53 n. 13 (quoting Justice Wilmot's Notes of Opinions and Judgments 91 (1802)), it was not considered unjust to refuse bail to one charged with a capital offense:

[C]ommitment ... being only for safe custody, wherever bail will answer the same intention it ought to be taken, as in most of the inferior crimes; but in felonies and other offences of a capital nature no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit to save his own life?

2 W. Blackstone, Commentaries** 296-97. As the colonies adopted constitutional provisions granting rights for release pending trial, they maintained the rule that where the risk that the guilty might escape outweighed the objective of preventing the punishment of the innocent, the court could refuse bail. "To decrease the possibility of such unnecessary punishment, bail was to be denied only to 'evident' capital accused, those whose guilt was in great measure certain." Cogan, 44 Temp.L.Q. at 57. A number of states have interpreted the word "great" in their constitutional provisions. We have two models in the nearby states of Maine and Rhode Island.

The Maine Constitution provides for the denial of bail to those charged with "crimes which now are, or have been denominated capital offenses ... when the proof is evident or the presumption great...." Me.Const. art. 1, § 10. In Harnish v. State, 531 A.2d 1264, 1266 (Me.1987), the Maine Supreme Court held that "the State's showing of probable cause defeats a capital defendant's constitutional right to bail." ⁷ The court went on to hold that an indictment alone cannot supply the showing of probable cause; the bail judge must be independently satisfied that probable cause was present. Id. at 1268. The court rejected a defense argument that guilt had to be shown by clear and convincing evidence. Id.

The Rhode Island Constitution also states that bail is not a right for defendants charged...