State v. Gates

Decision Date13 March 2020
Docket NumberNo. 2018-116,2018-116
Citation2020 VT 21
PartiesState of Vermont v. David Gates
CourtVermont Supreme Court

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 Reporter of Decisions by email at: JUD.Reporter@vermont.gov 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, Chittenden Unit, Criminal Division

Dennis R. Pearson, J.

Sarah George, Chittenden County State's Attorney, Pamela Hall Johnson, Deputy State's Attorney, and Jacob Oblak, Legal Intern, Burlington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. Defendant appeals his conviction for first-degree aggravated domestic assault. He argues that the trial court denied him the right to a fair trial by refusing to grant immunity to his witness or to compel the State to do so. In addition, he submits that the trial court's supplemental instruction improperly pressured the jury to reach a verdict. We affirm.

¶ 2. Defendant was tried by jury over two days in August 2017 on four counts: first-degree aggravated domestic assault; second-degree unlawful restraint; interference with access to emergency services; and kidnapping.1 The State relied on complainant's report that defendantburned her with a cigarette to satisfy the bodily injury element of the aggravated-domestic-assault count.

¶ 3. At trial, defendant and complainant both testified. Complainant testified as follows. She and defendant dated in May and June 2016 and during that time defendant promised that he would divorce his wife. On July 2, 2016, the couple attended a party where both were drinking. They left in defendant's car to take a friend to the University of Vermont Medical Center (UVMMC). At UVMMC, complainant got upset when she noticed that defendant was texting his wife. She told defendant she was "done," and that she wanted to take her belongings out of his car. Complainant then described in detail a series of events that resulted in severe injuries to her. The two went outside to the parking lot, where their argument escalated. Defendant took complainant's purse and threw it over a construction fence. After she retrieved it, complainant and defendant continued to argue. At one point, defendant became physical and pushed her against a wall. Complainant walked away from the hospital, continuing to argue with defendant by text message and over the phone. She subsequently told defendant that she needed help when she began to have an anxiety attack. She texted him that she was near a baseball field, and then passed out.

¶ 4. Complainant woke up some time later to the sound of defendant's car. When she continued to lie still, he came over and pulled her partially up by her hair before kicking her. Defendant said he would help her, but that this was the end of their relationship. Still arguing with him, she got into the front passenger seat of his car. They continued to fight, and defendant burned complainant's chest with a lit cigarette. Defendant took complainant's cell phone so that she could not call her sister. Defendant got out of the car, and complainant chased after him. Defendant threw complainant's cell phone onto the ground and jumped on it, crushing it into several pieces. Defendant returned to the driver's seat. Complainant grabbed onto the driver's side door to try to keep him from pulling away with her purse and other belongings, and defendant kicked and shoved her with his left foot and arm. Defendant stepped on the gas and complainant let go when sherealized she was being dragged. Defendant hit the brakes just as his back tire rolled over complainant's right arm, causing her to scream. Defendant then came over to her, picked her up, and led her back to the passenger's seat.

¶ 5. Complainant believed that defendant was going to take her back to UVMMC on account of her injury, but instead he kept driving. He threatened to kill her and her dog and held a box cutter inches from her neck. When he stopped at a storage unit, he tried to force her out of the car. She refused to leave, thinking that she would be safer inside the car. When defendant got a phone call, complainant screamed for help; defendant hung up the phone right away, punched her twice in the head, and continued to drive.

¶ 6. Complainant asked defendant to take her to a restroom. He took her to a gas station in Richmond, but she refused to leave the car because he got out to accompany her to the restroom. After he saw her reach to grab his cell phone and her credit cards (which defendant had taken), defendant hit complainant in the head and threw a bottle at her. Believing this would be her last chance to escape before he took her home, where she feared he would kill her, complainant picked up the bottle and hit him with it as hard as she could before running out of the car and into the station. Once inside, she screamed that her boyfriend was trying to kill her. The attendant pulled her behind the counter, locked the door, and called the police. Complainant then remembers passing in and out of consciousness before waking up to emergency personnel asking her questions.

¶ 7. Defendant testified that he went to a party with complainant and had to leave to bring a friend to the hospital. He stated that complainant became angry when she saw him text "I love you" to his wife. Defendant admitted that he threw complainant's purse over a fence in the hospital parking lot. At this point, defendant's version of the events that evening differed significantly from complainant's. He generally alleged that complainant was drunk and caused her own injuries.

¶ 8. Defendant stated that he agreed to find complainant at the baseball field, and on his way, he ran into his friend, Christopher Edwards. Edwards climbed into the back seat ofdefendant's car and they found complainant passed out at the baseball field. Defendant roused her and got her into the front seat of the car where she continued to complain about defendant's communications with his wife. Defendant began to drive, and complainant opened the car door and stepped out of the moving car. She fell, grabbing the side of the car with her left hand as she went down. Defendant, realizing that she was being dragged, stopped the car and got out to check on her. He found her crying on the ground and estimated that she had been dragged but did not see any injuries on her other than some road rash. She asked to go home. She did not say anything about defendant running over her arm.

¶ 9. As they continued to drive, however, complainant said her phone had fallen out of the car, and she began yelling that she could not feel her arm and needed to go to the hospital. Then she told defendant that she needed to use the restroom and he took her to a gas station in Richmond. Once there, she said that she no longer needed to go, so defendant prepared to drive away. However, complainant then got out of the car, and when defendant asked her what she was doing, she responded that she was calling the cops. He asked her why and she said, "You'll see." At this point, not wanting to have an interaction with the police, and believing that he had done nothing "that warranted police," defendant left to drive Edwards home before going to visit his wife.

¶ 10. Defendant's witness, Kristi Proper, testified on cross-examination that during a call on the night of the incident defendant told her that only he and complainant were in his car.

¶ 11. On the second day of trial, prior to defendant's testimony, defendant notified the court of his intention to call Edwards as a witness. Counsel reported that Edwards had joined defendant during his travels between the hospital and the baseball field and would testify that "all of the things that [complainant] says are not true, or he'll testify to events that are different to the events that [complainant] testified, to an extent that both versions cannot be true." Counsel indicated that the State had noticed its intention to introduce global positioning system (GPS) evidence showing that Edwards, who was on furlough, was not with defendant on the night of theincident because his GPS monitor placed him on St. Paul Street at the time in question. The defense sought a ruling from the court regarding the admissibility of the GPS evidence and whether the State would be permitted to cross-examine Edwards about his furlough supervision.2

¶ 12. In response, the State confirmed that the GPS evidence would show that Edwards was not in the vicinity of UVMMC and the baseball field during the time he would testify that he was. The State raised a concern that "either Mr. Edwards is going to admit to an escape, or Mr. Edwards is going to be perjuring himself" and suggested that the court provide him with legal counsel prior to testifying. The court inquired of the defense whether Edwards would testify he took off the monitor and left it on St. Paul Street. Counsel replied, "I think I would want to have a conversation with Mr. Edwards before I made a proffer to the court." The court appointed an attorney to consult with Edwards.

¶ 13. After meeting with Edwards, his attorney reported to the court that Edwards intended to invoke his Fifth Amendment right and refuse to testify if called as a witness. In response, defense counsel requested that the court immunize Edwards because "[h]is testimony is incredibly exculpatory information for my client" and "[goes] directly to the credibility of the complaining witness."

¶ 14. The State repeated its concern that Edwards would either incriminate himself on a felony escape charge, which the State would...

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2 cases
  • State v. Kuhlmann
    • United States
    • Vermont Supreme Court
    • July 16, 2021
    ...charge conference or before the jury retired to consider its verdict, and therefore did not preserve this argument for review. See State v. Gates, 2020 VT 21, ¶ 55, 212 Vt. 1, 230 A.3d 595 ; V.R.Cr.P. 30(b). Accordingly, we review the instructions for plain error. State v. Carter, 2017 VT 3......
  • State v. Kuhlmann
    • United States
    • Vermont Supreme Court
    • July 16, 2021
    ...charge conference or before the jury retired to consider its verdict, and therefore did not preserve this argument for review. See State v. Gates, 2020 VT 21, ¶ 55, ___ Vt. ___, 230 A.3d 595; V.R.Cr.P. 30(b). Accordingly, we review the instructions for plain error. State v. Carter, 2017 VT ......

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