State v. George
| Citation | 2022 VT 21 |
| Decision Date | 06 May 2022 |
| Docket Number | 2021-089 |
| Parties | State of Vermont v. Kory L. George |
| Court | United States State Supreme Court of Vermont |
On Appeal from Superior Court, Chittenden Unit, Criminal Division, Alison S. Arms, J.
Sarah F. George, Chittenden County State's Attorney, and Andrew Gilbertson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Seibert Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Waples, Supr. J., Specially Assigned
¶ 1. Defendant Kory George appeals the criminal division's denial of his request for a protective order preventing disclosure of testimony he provided to prosecuting authorities pursuant to a proffer agreement. We reverse and remand to the criminal division.[1] ¶ 2. The undisputed background of this interlocutory appeal is as follows. David Auclair, defendant's stepfather, was killed by multiple gunshots in July 2019. Following an investigation, defendant was charged in November 2019 with first degree murder, burglary into an occupied dwelling, and obstruction of justice. In December 2019, defendant's mother and David Auclair's wife, Angela Auclair, was charged with aiding in the commission of murder and obstruction of justice. The State claims defendant and Ms. Auclair participated in a burglary resulting in the theft of a gun, which defendant subsequently used in the murder of David Auclair. In the aftermath, defendant and Ms. Auclair each allegedly instructed witnesses to lie to law enforcement.
¶ 3. Approximately a year after being charged, defendant agreed to waive his Fifth Amendment rights and provide the State's Attorney's office with information concerning the charges in a proffer session. Proffer sessions are often used to facilitate plea negotiations; however, a proffer session "carries with it both potential risks and potential rewards" for a defendant. United States v. Melvin, 730 F.3d 29, 32 (1st Cir. 2013). To protect against the potential risks should plea negotiations fail, a defendant and the State will often enter into a proffer agreement that controls the ways the State can use the information obtained during the proffer session. United States v. Lopez, 219 F.3d 343, 345 n.1 (4th Cir. 2000). Before he participated in an interview, defendant entered into one such written proffer agreement with the State. That agreement, drafted by the State and signed by the State's Attorney, defendant, and defendant's counsel, [2] provides in relevant part as follows.
¶ 4. To open, the agreement states: "This letter will state the terms upon which this office will accept proffer of information from your client, Kory George." It then explains that the scope of the proffer interview will be limited to events surrounding the three charges brought against defendant. In it, the government promises "not to use any information [defendant] provides pursuant to this agreement directly against him in any criminal prosecution." In the next paragraph, it clarifies that "[a]ny leads or information derived from the information [defendant] provides, however, can be used against him in any future proceeding." The agreement also allows the government to use the information directly against defendant in a criminal prosecution in three situations: (1) to impeach defendant; (2) to rebut evidence defendant presents; and (3) in a prosecution for obstruction of justice, perjury, or false report to a police officer.
¶ 5. Defendant participated in interviews over the course of three days in December 2020. During that time, the prosecuting attorney, defendant, and defendant's counsel discussed the proffer agreement and the provision of any of defendant's proffer statements to Ms. Auclair.
¶ 6. Defendant explained that his first question for his attorney was whether Ms. Auclair would hear about the proffer and recalled that he was told it would not "be disclosed at this time." Defense counsel reiterated "at this time." At another point the same day, the prosecuting attorney raised the issue of disclosure, mentioning that defense counsel told defendant that "this proffer was confidential at this time." The prosecuting attorney explained that there may be an investigation in an effort to corroborate defendant's statements, which could alert Ms. Auclair's attorney to the proffer agreement and contents of the interview. She followed up that it was not the State's intention to disclose the proffer. In response, defense counsel thanked the prosecuting attorney for clarifying that the proffer "at this stage, is part of negotiations" and that Ms. Auclair's attorney would not "be apprised . . . at this point." Defense counsel then stated that she had told defendant that "if and when any settlement . . . is reached in the form of a formal resolution of [defendant's] charges," the proffer will be disclosed to Ms. Auclair's attorney.
¶ 7. Following completion of the proffer session, the State elected not to make a plea offer to defendant and indicated that it intended to provide the contents of the proffer to Ms. Auclair. As a result, defendant filed for a protective order under Vermont Rule of Criminal Procedure 16.2(d), raising various arguments including: the proffer was made during the course of plea negotiations and is therefore not admissible against him except as provided in it; his statements are not discoverable in Ms. Auclair's case because they are not exculpatory to Ms. Auclair and do not contain impeachment evidence; disclosure would be improper because defendant is not a witness for the State and therefore his statements are not necessary for the preparation of Ms. Auclair's defense; and if the proffer were disclosed, Ms. Auclair-and her associates-would pose a danger to defendant and his wife. Defendant did not argue initially that any statements made during the proffer sessions modified the proffer agreement to prevent disclosure. The State opposed defendant's request for a protective order, arguing it was required to disclose the proffer statements to Ms. Auclair under its discovery obligations. It also raised, for the first time, that it might seek to try defendant and Ms. Auclair jointly. Pending resolution of the motion for a protective order, the State informed Ms. Auclair's attorney of the existence of a proffer agreement but did not disclose the contents of the proffer.
¶ 8. After an in-camera review of the transcript of the proffer sessions and without holding a hearing, the criminal division denied defendant's motion for a protective order. It noted that the proffer statements provided details which Ms. Auclair could use to question the State's narrative and theory of her overall involvement in the murder of her husband and that defendant's statements significantly implicated Ms. Auclair. The court's basis for denying the protective order request was its conclusion that Ms. Auclair is entitled to discover the contents of the proffer in her case under Vermont Rules of Criminal Procedure 16(a) and 16.2(b). The court did not address any of defendant's arguments raised in support of the protective order but noted the motion for joinder, if filed and granted, would provide another basis for disclosure of the proffer statements to Ms. Auclair.
¶ 9. Defendant immediately filed, and the trial court granted, a motion to stay enforcement of the denial of the protective order to give him time to seek an interlocutory appeal before the contents of the proffer were disclosed. Defendant then filed a motion for reconsideration that reiterated prior arguments and more clearly articulated that the proffer agreement prohibits disclosure. Defendant raised in his statement of facts-but not in his argument that the proffer agreement prohibits disclosure-that he did not believe the State would disclose the contents of the proffer session when he signed the proffer agreement. Further, he indicated that he relied on the State's intention to try him separately from his mother at the time he entered the proffer agreement.
¶ 10. Again, without a hearing, the criminal division denied defendant's request for a protective order. It relied primarily upon its view that the proffer statements were required to be disclosed to Ms. Auclair and stated without further elucidation that none of defendant's assertions supported a protective order. The court did not address defendant's contention that the proffer agreement prevented disclosure of the statements or that defendant's safety concerns for himself and his wife necessitated a protective order. The court then granted defendant permission for an interlocutory appeal and stayed enforcement of its order denying the protective order pending the appeal's resolution. This appeal followed.
¶ 11. On appeal, defendant argues that the criminal division abused its discretion when it declined to grant defendant's motion for a protective order for various reasons: the proffer agreement prohibits disclosure; disclosure is not required in Ms. Auclair's case under the discovery rules or constitutional principles; the criminal division failed to consider the risk of physical harm disclosure poses to defendant or his wife; and the criminal division failed to consider the argument that the contents of the proffer are inadmissible and thus not subject to disclosure. The State argues that the court did not abuse its discretion in denying the protective order because: it did not have the authority to grant defendant a protective order; the proffer agreement does not prohibit disclosure; the State is required to disclose the contents of the proffer to Ms. Auclair; and defendant is not prejudiced by the denial because he cannot prove disclosure would actually pose a threat to him or...
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