State v. Forte, 91-061

• Decision Date: 29 January 1993
• Docket Number: No. 91-061,91-061
• Citation: 624 A.2d 352,159 Vt. 550
• Parties: STATE of Vermont v. Leonard FORTE.
• Court: Vermont Supreme Court

Page 352

624 A.2d 352

159 Vt. 550

STATE of Vermont v. Leonard FORTE.

No. 91-061.

Supreme Court of Vermont.

Jan. 29, 1993.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Alan P. Biederman of Biederman & Rakow, P.C., Rutland, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

In this extraordinary relief proceeding, the Bennington Superior Court granted a writ of certiorari to set aside an order of the Vermont District Court, Bennington Circuit, granting defendant a new trial in a criminal case. Defendant appeals, arguing that relief by way of certiorari is unavailable in this proceeding, that the court applied the wrong standard in granting the writ, and that the superior court was in error in its interpretation of the new trial decision of the district court. We agree that the superior court erred in granting relief based on its findings and remand for further findings and conclusions.

Defendant Leonard Forte was charged, under 13 V.S.A. § 3252, with three counts of criminal sexual assault of a minor for allegedly assaulting his daughter's twelve-year-old female friend. The incidents in question occurred on three nights in February of 1987, when defendant, his daughter and her friend were staying at his vacation home in Landgrove. After a trial in December of 1988, the jury returned a verdict of guilty on each of the three counts. Defendant then moved for a new trial and a judgment of acquittal on a number of grounds, including the "emotional involvement" of the deputy state's attorney who prosecuted the case.

The post-trial motions were heard in June of 1989. On October 14, 1989, the court denied the motion for acquittal but granted the motion for a new trial. It found that the emotional involvement of the prosecutor, which was manifested in various ways, deprived defendant of a fair trial. On November 3, 1989, the State sought extraordinary relief in the Supreme Court, alleging that the trial judge had abused his discretion and requesting that the order for a new trial be set aside. This Court dismissed the petition "without prejudice to bringing a petition for extraordinary relief in superior court." State v. Forte, 154 Vt. 46, 50, 572 A.2d 941, 943 (1990) (Forte I ). The State brought such a proceeding in the Bennington Superior Court in May of 1990.

The case was heard in November of 1990. The record consisted of the testimony of each of the jurors, both prosecutors, and the court reporter. It also included the decision of the district court granting a new trial and the transcript of proceedings in the criminal case. This transcript consisted of the pretrial hearings and the trial up to the time the court reporter left the court and the tape of proceedings thereafter.

The superior court examined the State's complaint and decided that it requested relief in the nature of certiorari. Based on that conclusion, the court determined that it was required to adjudicate the matter solely on the basis of the official record made in the district court. This preliminary decision led the superior court to refuse to consider the evidence that it took. It made findings, however, based on part of that testimony in the event of appeal to this Court.

Based solely on the record of the district court proceedings, the superior court set aside the new trial decision of the district court. The superior court reasoned that the district court granted a new trial based on the cumulative impact of two actions of the prosecutor: (1) the introduction of the personal beliefs of the prosecutor into closing argument, and (2) the emotional involvement of the prosecutor in trial examination and argument. The superior court concluded that the latter ground could not be reviewed because it was based on the observations of the trial judge, but the former ground could be reviewed from the record. Based on that review, the court concluded that the prosecutor never injected her personal beliefs into her closing argument. Because one of the grounds supporting the new trial decision was not present, the superior court struck the grant of a new trial.

Defendant attacks the superior court's characterization of the district court's decision, as well as its finding of error. His main challenge, however, is to the superior court's approach. He argues that our original decision narrowed the issue to whether there was bias or improper motivation in the district judge in granting the new trial. In his view, the superior court could make this determination only by considering the testimony given before it, exactly what that court refused to do. In the absence of a finding of bias or improper motivation, he argues, the superior court's order cannot be sustained.

It is helpful at the outset to summarize our earlier decision in this case. Although the rationale for that decision was that the State is required to seek extraordinary relief, in the first instance, in the superior court, we did provide some guidance about the nature of the proceeding. First, we did not reject the proposition that, upon some showing that could not be described "with precision," extraordinary relief might be available to set aside the decision to grant a new trial. Forte I, 154 Vt. at 47-48, 572 A.2d at 941-42. Second, we noted that any review would be "narrow," and that extraordinary relief must be based on usurpation of judicial power, arbitrary abuse of power, or clear abuse of discretion. Id. at 48, 572 A.2d at 942. Third, we emphasized that review would be difficult, if not impossible, on the record alone because the new trial decision was based on the trial judge's observations of the demeanor of the participants and the reactions of the jurors. Id. at 49, 572 A.2d at 942.

It is also helpful to summarize the status of extraordinary relief in Vermont. Pursuant to statute, this Court and the superior courts have concurrent jurisdiction over "proceedings in certiorari, mandamus, prohibition and quo warranto." 4 V.S.A. §§ 2, 113. These writs, however, were abolished by the Vermont Rules of Civil Procedure. V.R.C.P. 81(b). Much of the relief available under these writs is now covered by Rules of Civil Procedure 74 and 75 on review of governmental action. To the extent it is not provided by the Rules, however, relief formerly available under these writs is available in a normal civil action for extraordinary relief. See Reporter's Notes to V.R.C.P. 81; Pfeil v. Rutland District Court, 147 Vt. 305, 308, 515 A.2d 1052, 1054-55 (1986). In determining the scope of such a proceeding, we look to the contours of the writs that have been replaced with extraordinary relief. See Bloomer v. Cheney, 131 Vt. 552, 553, 311 A.2d 101, 102 (1973) (rule does not "purport to change the nature of the actions").

The superior court concluded that the appropriate extraordinary relief was in the nature of certiorari and that, because such relief could be granted based solely on the record in the district court, it could not rely on the testimony it heard. We do not concur in this analysis for two reasons. The purpose of certiorari is to review judicial action of inferior courts and tribunals in regard to substantial questions of law affecting the merits of the case. See Burroughs v. West Windsor Board of School Directors, 141 Vt. 234, 237, 446 A.2d 377, 379 (1982). It is used "only in those cases in which compelling public necessity or other unusual circumstances make ordinary modes of proceeding inadequate, and the review thus occasioned is limited to keeping the inferior tribunal within the limits of its jurisdiction and insuring that that jurisdiction is exercised with regularity." Rhodes v. Town of Woodstock, 132 Vt. 323, 324-25, 318 A.2d 170, 171 (1974). It is not, however, ordinarily a means of interlocutory relief; thus, it requires a final judgment. See In re Bibens, 115 Vt. 383, 388, 61 A.2d 598, 601-02 (1948); Sowles v. Bailey, 69 Vt. 277, 285, 37 A. 751, 754 (1897). ¹ There is no final judgment in this case, and review by certiorari is inappropriate.

Second, although certiorari review in Vermont brings up the record for correction or revision in matters of law, see Rhodes, 132 Vt. at 324, 318 A.2d at 171, review is not limited to the record before the tribunal whose action is being reviewed. ² See Chapin Hill Estates, Inc. v. Town of Stowe, 131 Vt. 10, 13, 298 A.2d 815, 817 (1972). The reviewing court may take testimony related to the review. See id.; Sowles, 69 Vt. at 279-80, 37 A. at 752.

If extraordinary relief is available at all in these circumstances, it is in the nature of mandamus. ³ The purpose of mandamus is to enforce " 'a simple and definite duty, imposed by law, and arising under conditions admitted or proved to exist.' " Bargman v. Brewer, 142 Vt. 367, 369-70, 454 A.2d 1253, 1255 (1983) (quoting Black's Law Dictionary 899 (5th ed. 1979)). Ordinarily, it is not available with respect to judicial acts that involve judgment or discretion. Id. There is an exception, however, where there is an "arbitrary abuse of the power vested by law" amounting to "a virtual refusal to act or to perform a duty imposed by law." Couture v. Selectmen of Berkshire, 121 Vt. 359, 361, 159 A.2d 78, 80 (1960).

We have no doubt that mandamus, as it originally was applied in this state, would preclude the relief the State sought here. Although the district court had a duty to impose sentence based on the jury's guilty verdict "without unreasonable delay," V.R.Cr.P. 32(a), it had the power to order a new trial where "required in the interests of justice," V.R.Cr.P. 33, and the exercise of that power involved discretion and judgment. See State v. Briggs, 152 Vt. 531, 542, 568 A.2d 779, 785 (1989) (because disposition of new trial motion is "within the court's discretion, its decision will not be reversed unless defendant shows that this discretion was either withheld...