State v. Forty

• Decision Date: 25 November 2009
• Docket Number: No. 08-434.,08-434.
• Citation: 989 A.2d 509,2009 VT 118
• Parties: STATE of Vermont v. Gregory S. FORTY.
• Court: Vermont Supreme Court

989 A.2d 509

2009 VT 118

STATE of Vermont v. Gregory S. FORTY.

No. 08-434.

Supreme Court of Vermont.

November 25, 2009.

Deborah A. Celis, Franklin County Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, Rebecca Turner, Appellate Defender, and Jeffrey Rubin, Law Clerk, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. Following a jury trial in Franklin District Court, defendant was convicted of two counts of first-degree aggravated domestic assault. On appeal, defendant contends that the trial court committed reversible error by (1) issuing improper jury instructions regarding defendant's alibi defense, (2) prohibiting a line of questioning concerning an alleged prior incident of abuse of victim, (3) excluding one of defendant's lay witnesses for violating the court's sequestration order, and (4) excluding defendant's expert witness. We conclude that the trial court did not commit reversible error and affirm.

¶ 2. Both parties agree that during December 2007 victim lived at defendant's dairy farm in Franklin, Vermont. On the evening of December 30, victim and defendant received a visit from four friends. The group drank alcohol and socialized at defendant's house until defendant and victim got into a heated argument and defendant demanded that victim move out. Defendant and the four visitors then left for the house of one of the friends, which was a relatively short distance away, leaving victim by herself in defendant's house. It is at this point that the parties' stories diverge.

¶ 3. The State alleged the following facts: Shortly after the group left, victim too went to the friend's house to confront defendant and find out if he truly wanted her to move out. Defendant ignored her attempts to speak with him, and so she left the friend's house for the residence of her former boyfriend. Defendant followed victim to the former boyfriend's residence. When victim went onto the porch to speak to him, defendant grabbed her and pulled her over the porch railing and onto the ground, and began punching her repeatedly. After the beating, defendant told victim that he would be back to burn down the house with her inside, and he left.

¶ 4. Victim, fearing for her safety, returned to the friend's house, reasoning that the group of friends at this house would protect her from defendant. When she arrived, only two of the friends remained at the house. After the owner of the house retired to his bedroom, leaving victim and one friend alone together in the living room, defendant arrived. Again, defendant began physically abusing victim. He threw her off the couch, hit her, and kicked her in the face, all in the presence of the friend. Victim begged defendant to stop and pleaded for the friend to help her. After defendant kicked victim in the face, the friend finally said, "you got the bitch good," and defendant stopped the attack.

¶ 5. Victim fled, this time for defendant's farmhouse, and was again pursued by defendant. Victim decided that, upon arriving at the farmhouse, she would pretend that everything was okay, in the hope that defendant finally would leave her alone. As she parked, defendant blocked her car in the driveway. He got out of his truck and subsequently apologized to victim. Victim feigned forgiveness, and suggested that defendant move his truck so that it no longer blocked her in. As defendant went to move the truck, victim called 911. In the midst of the call, defendant entered the house, causing victim to promptly hang up. Defendant told victim that if she had called 911, he would "put a bullet in her head." Just then, the phone rang. Defendant answered the phone and briefly spoke to the 911 operator. Taking advantage of the distraction, victim fled. While on the road, she saw a police officer and stopped for help. Victim described the assaults to the officer and was taken to the hospital for her injuries.

¶ 6. Defendant offers a starkly different account of the events that unfolded after defendant and his friends first arrived at the friend's house. He alleges that shortly after the group settled in at the house, victim barged in, demanded beer, and confronted defendant, asking if he was serious about requesting her to move out. She then attacked defendant, pulling his hair and beard, and scratching his face, as he sat at the dining table. After filling her pockets with cans of beer, victim left.

¶ 7. Victim returned to the friend's household a second time around 11:00 p.m. This time, she demanded beer and money. Defendant, who had not left the friend's residence at any point since first arriving, told victim to leave. Victim did so without incident. Defendant spent the night at the friend's house and returned home in the morning. Defendant acknowledged, as he had to, that the 911 operator called his house in response to victim's 911 call. He claimed, however, that since he was not at his house when the call came in, some other male answered the telephone.

¶ 8. Defendant was charged in Franklin District Court with four counts of aggravated domestic assault. Counts one and two charged him with aggravated domestic assault of victim at, respectively, the former-boyfriend's residence and the friend's residence. For these counts, the State alleged that defendant attempted to cause "serious bodily injury to a household member" in violation of 13 V.S.A. § 1043(a)(1). Count three also charged defendant with aggravated domestic assault at the former boyfriend's residence. For this count, defendant was charged with recklessly causing bodily injury to victim, having been previously convicted of aggravated domestic assault, in violation of 13 V.S.A. § 1043(a)(3). Count four was similar to count three, and also charged a violation of § 1043(a)(3) because defendant had previously been convicted of aggravated domestic assault, but alleged that at defendant's residence he had willfully caused victim "to fear imminent serious bodily injury."

¶ 9. At trial, the friends all testified in support of defendant's version of the events. The State's case was based generally on the testimony of victim. An eyewitness to the events at the house of the ex-boyfriend also testified. While the eyewitness observed an assault on victim, the description of the perpetrator did not entirely fit defendant.

¶ 10. The jury acquitted defendant on counts one and three, both of which stemmed from the alleged incident at the former boyfriend's residence. The jury convicted defendant on count two, which encompassed the alleged attack at the friend's house, and count four, which encompassed the alleged threats made to victim at defendant's house after she placed the 911 call. At trial, defendant defended count two by arguing that the assault at the friend's residence never occurred. Defendant used an alibi defense to combat count four, arguing that he was at the friend's residence all night and therefore could not have been at his own farmhouse to answer the 911 callback.

¶ 11. Defendant appeals his convictions on counts two and four, contending that the trial court erred in: (1) failing to instruct the jury that the State must disprove defendant's alibi beyond a reasonable doubt and giving an improper false alibi instruction to the jury; (2) precluding defendant from cross-examining victim about an alleged assault by a third party; (3) preventing defendant from calling a particular lay witness to identify the voice on the 911 callback tape; and (4) denying defendant's expert witness the opportunity to testify. We address each of these arguments in turn.

¶ 12. We begin with the jury instructions. Defendant advances several lines of attack on the trial court's jury instructions. First, defendant argues that the trial court erred when it declined to specifically instruct the jury that the State bore the burden of disproving defendant's alibi beyond a reasonable doubt. Defendant contends that without such an instruction the jury might have incorrectly believed that a defendant who raises an alibi defense bears the burden of proving that defense beyond a reasonable doubt, and any instruction that relieves the State of its burden of proving a defendant's guilt beyond a reasonable doubt denies due process of law.

¶ 13. It is true that a jury instruction that implies a burden shift from the State to a criminal defendant denies due process of law in violation of the Fourteenth Amendment to the United States Constitution. Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); State v. Ovitt, 148 Vt. 398, 402, 535 A.2d 1272, 1274 (1986). We do not believe, however, that the trial court's alibi instructions in the present case shifted the burden of proof away from the State. The trial court instructed the jury as follows:

Evidence has been introduced tending to show that the Defendant was not present at the time and place where the State alleges he committed the several offenses. It is, of course, the State's burden to prove beyond a reasonable doubt each of the essential elements of each offense, including the identity of Gregory Forty as the person who committed each offense on the date and at the place alleged. If, after considering all of the evidence, you have a reasonable doubt that the Defendant was present at the time and place where it is alleged the offense was committed, then you must find him not guilty of that offense.

However, if you find beyond a reasonable doubt that the alibi is false or fictitious, and that the Defendant was, in fact, at the place when and where the crime was committed, then the attempt to establish an alibi is evidence of guilt to be established by you along with all of the other evidence in this case.

The instructions make clear that it is the...