State v. Fitzpatrick

• Decision Date: 16 March 2001
• Docket Number: No. 99-223.,99-223.
• Citation: 772 A.2d 1093
• Parties: STATE of Vermont v. Paul FITZPATRICK.
• Court: Vermont Supreme Court

772 A.2d 1093

STATE of Vermont v. Paul FITZPATRICK.

No. 99-223.

Supreme Court of Vermont.

March 16, 2001.

Dan M. Davis, Windham County State's Attorney, and James E. Maxwell, Deputy State's Attorney, Brattleboro, for Plaintiff-Appellant.

Thomas A. Zonay of Ford, Johnson & Zonay, P.C., Woodstock, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Defendant Paul Fitzpatrick was charged with rape and tried before two juries, both of which became deadlocked. After the second mistrial, the trial court, upon motion of defendant, dismissed the charges against defendant with prejudice, pursuant to Vermont Rule of Criminal Procedure 48(b)(2). The State, which seeks to try defendant a third time, appeals, claiming the court abused its discretion in dismissing the charges. Defendant cross-appeals, arguing that because of prosecutorial misconduct the court should have dismissed the case at the beginning of the second trial. We affirm without reaching the cross-appeal.

On September 4, 1996, according to testimony at the two trials, the alleged victim met a friend for dinner and drinks. The two women, who knew each other through work, went to a restaurant at around 7:30 p.m. and stayed there for about an hour and a half. They then went to a bar, where they were acquainted with the owner and the bartender. At the bar they were approached by defendant, who introduced himself, and asked them to play pool. The three played pool together on and off, and struck up a conversation. At around 11:00 p.m., the alleged victim's friend decided to go home. The friend tried several times to persuade the alleged victim to go with her, but she refused to leave.

According to the alleged victim's testimony, she intended to finish the beer she was drinking and then drive home. However, at that point defendant approached her and said that he was having a party in his motel room nearby and invited her to come along. Believing that several people from the bar would be there, she accepted. When they arrived at the motel room, they were alone. The alleged victim claimed that when she realized there was no party and attempted to leave, defendant held her against her will and raped her. She testified that he slapped her and bit the earrings from her ears. She scratched his back with her fingernails, trying to resist. Eventually, he fell asleep, and she left the room and called the police to report the rape. The call was logged in at 3:31 a.m.

The police interviewed the alleged victim at the police station, and then took her to the hospital to have a rape kit examination performed to gather evidence. At about 7:00 a.m., the detective in charge of the investigation knocked on the door of defendant's hotel room to question him. Defendant admitted that a woman had been there, but said that "nothing had happened."

According to defendant, it was the alleged victim who asked to come to his motel room with him. He testified that while they were at the bar they began flirting with each other. They were sitting at the bar together, talking, and she had her hand on his leg. They decided they were going to go back to his room, and she asked, "How do you want me to be for you?" When they got to his room, they began kissing and fondling each other. The alleged victim took off her earrings and placed them on the night stand. Defendant testified that, at one point, she ran her fingernails down his back, causing him pain. When he said that he did not like that, she asked again, "How do you want me to be for you?" Defendant testified that he became uncomfortable with the situation, and decided to ask her to leave. He asked her several times to leave, but she kept saying that she wanted to stay. Finally, when he insisted, she became upset and stormed out of the room, leaving the door open as she left. He closed the door and went to sleep.

Defendant was charged with kidnapping, aggravated sexual assault and simple assault. The case was tried before a jury in February 1998. At the trial, the alleged victim and defendant both testified, as did several police officers who were involved in the investigation, medical personnel who performed the rape kit examination, two expert witnesses, and several other fact witnesses. A motel guest testified that he heard a commotion in another room during the night in question. He heard a loud male voice that sounded upset and emotional, and then a sound like a child running across a room and hitting a coffee table. The doctor who examined the alleged victim at the hospital testified that she had scratches on her lower back, and a long scratch on her left interior thigh, and that there was a half centimeter fresh laceration in her perineum, but that no sperm had been found in her urine or vaginal mucous. The expert witnesses testified that there was saliva on one of the earrings the alleged victim had left in defendant's room, and that there was a one in fifty chance it came from defendant. There was also a one in fifty chance that DNA material scraped from underneath the alleged victim's fingernails came from defendant. On the third day of trial, the jury became deadlocked, and a mistrial was declared. The State claimed, and the trial court accepted, that the jurors were eleven to one for conviction.

After the first mistrial, the charges were amended to unlawful restraint, sexual assault, and simple assault, and the case was tried to a second jury in January 1999. Essentially the same witnesses testified, and the same medical and expert DNA evidence was presented. Another hung jury resulted, and the court declared a mistrial. Based on the State's representation, the court found that the vote of the jurors was six for conviction and six for acquittal. Thereafter, defendant filed his motion to dismiss the prosecution with prejudice under V.R.Cr.P. 48(b)(2).

After hearing evidence and argument on the motion, the court, in a twenty-four page opinion, granted it, based on its evaluation of the factors set out in State v. Sauve, 164 Vt. 134, 140-41, 666 A.2d 1164, 1168 (1995), and State v. Abbati, 99 N.J. 418, 493 A.2d 513, 521-22 (1985). The court relied upon the following factors: (1) no significant new evidence will be available in future trials; (2) the case is a credibility contest between the victim and defendant, and the State's evidence was unpersuasive in two trials and "will prospectively remain unpersuasive"; and (3) defendant continues to suffer personally and financially from the prosecution. The court recognized that there were factors weighing against dismissal, particularly the seriousness of the charges and the alleged victim's desire to continue the prosecution, but it found that these factors were outweighed by those supporting dismissal. The court also evaluated whether dismissal would serve "the effective administration of the [c]ourt's business" and concluded it would because the backlog of untried felony cases in the Windham District Court meant that a retrial of defendant was "in contravention of the rights of other defendants and victims to have a speedy jury resolution."

As the trial court recognized, this case calls upon us to interpret and apply our recent controlling decision in State v. Sauve, a case in which the trial court also dismissed the charges pursuant to V.R.Cr.P. 48(b)(2) following a hung jury. Four points from Sauve are critical to the decision in the case before us.

First, despite the involvement of "separation-of-powers principles" when a court dismisses a criminal prosecution supported by substantial evidence with no opportunity for the State to refile, Sauve, 164 Vt. at 139,666 A.2d at 1167, the court nonetheless has the power to dismiss a case "when it would be fundamentally unfair to continue the prosecution." Id. at 140, 666 A.2d at 1167. The power is recognized in V.R.Cr.P. 48(b)(2). This power extends to retrials following a mistrial because of a hung jury:

the repeated prosecution of a defendant for the same crime following hung juries where no new evidence exists raises issues concerning traditional notions of fundamental fairness and substantial justice. Repeated trials involving the same offense can frustrate the search for truth and the effective administration of justice by depleting the resources of the parties, by imposing hardships on witnesses, and by fostering the perfunctory presentation of stale testimony, the exaggeration of subtle differences in witnesses' recollections to challenge their credibility, and the tailoring of testimony based on the jury's perceived reaction in prior trials.

Id. at 142, 666 A.2d at 1169.

Second, the power to dismiss is limited: "trial courts may dismiss prosecutions in furtherance of justice against the wishes of the prosecutor only in rare and unusual cases when compelling circumstances require such a result to assure fundamental fairness in the administration of justice." Id. at 140, 666 A.2d at 1167. Therefore, "the trial court must generally defer to the prosecutor's decision to retry the case, but if fundamental fairness compels dismissal, the court is authorized to do so." Id. at 142-43, 666 A.2d at 1169. Defendant has the burden of proof to show grounds to dismiss with prejudice following one or more hung juries. Id. at 144, 666 A.2d at 1170.

Third, Sauve contains a list of nonexclusive factors for the trial court to evaluate and apply to its determination whether dismissal with prejudice is appropriate. Id. at 140-41, 666 A.2d at 1168. The court "should consider such factors, which weigh the respective interests of the defendant, the complainant, and the community at large." Id. at 141, 666 A.2d at 1168.

Fourth, the trial court's decision whether to dismiss with prejudice under V.R.Cr.P. 48(b)(2) involves an exercise of the court's discretion, reviewable in this Court only for abuse of discretion. We reverse a discretionary decision only if the trial court has "...