State v. Gibbons, 22-AP-214

Citation22-AP-214
Case DateAugust 23, 2022
CourtUnited States State Supreme Court of Vermont

State of Vermont
v.

James Gibbons, Jr.*

No. 22-AP-214

Supreme Court of Vermont

August 23, 2022


APPEALED FROM: Superior Court, Essex Unit, Criminal Division CASE NO. 21-CR-05443; 22-CR-05761 Trial Judge: Robert P. Gerety, Jr.

ENTRY ORDER

WILLIAM D. COHEN, ASSOCIATE JUSTICE.

In the above-entitled cause, the Clerk will enter:

Defendant appeals the criminal division's order holding him without bail pursuant to 13 V.S.A. § 7553a on two separate trial court dockets. I affirm.

I. Procedural History and Facts

In June 2022, prior to the present matter, defendant pleaded guilty to misdemeanor domestic assault under 13 V.S.A. § 1042. His sister, the complainant in the current case, reported this prior domestic assault to the police. He was subsequently sentenced to time served and released on conditions of probation after almost a year of being incarcerated during the pendency of the case. Condition twenty-three of defendant's probation prohibits him from "engag[ing] in violent or threatening behavior. Violent behavior includes physical contact with another without consent, unlawful restraint of another, or physical contact by mutual affray." Defendant was released into sister's custody after pleading guilty.

Ten days later, defendant allegedly attacked his sister. He was charged with a violation of probation (VOP) from his June 2022 conditions of probation and one count of second-degree aggravated domestic assault under 13 V.S.A. § 1044(a)(2)(B) on a separate docket.

The State presented the following evidence in support of its request to hold defendant without bail. On the afternoon of July 1, defendant and sister ran errands and then returned to sister's residence. Sister cleaned her kitchen while defendant rested in the bedroom, and she heard a thud from the bedroom. After the thud, defendant started screaming, ran into the kitchen, put sister in a headlock and choked her, grabbed her left arm and held it behind her back, and tried to slam her head on the cabinet. Sister tried to communicate that he was hurting her, but she could not get through to him; she believed she was going to die and later described her pain at the time as "excruciating." Defendant continued screaming at her while he choked her,

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blaming her for his year-long incarceration. Eventually, sister broke free, ran to her car in the driveway, and locked the doors. Sister waited until she heard silence before returning to her residence to retrieve her phone. She contacted a friend for help, and that friend called the police.

As a result of these alleged events, sister stated that she would not be willing to have defendant to be released into her custody again. She further indicated that defendant "doesn't know anyone in Vermont" and has no other friends or ties to the community.

The criminal division held a weight-of-the-evidence hearing on July 14, 2022, and it issued a written order the same day holding defendant without bail on the aggravated domestic assault charge pursuant to 13 V.S.A. § 7553a and the VOP charge pursuant to 28 V.S.A. § 301(4). The court found that the evidence of defendant's guilt was great, and that defendant's release would "pose a substantial threat of physical violence to the alleged victim and to the individual who reported defendant's conduct to law enforcement on the day of the alleged assault." It determined that no condition or combination of conditions of release would "reasonably prevent the physical violence" because defendant had already, by violating probation, indicated that he was "likely to violate court orders designed to prevent him from engaging in violent behavior toward others."

Defendant filed a notice of appeal pro se in both dockets arguing that he provided substantial evidence of the State's prejudice and misconduct. The State filed a letter in response asking the superior court to reject defendant's notice of appeal because it was not filed by defendant's attorney.[*] Defendant's attorney subsequently indicated she would represent defendant in this bail appeal.

Both parties filed written memoranda. Defendant argues the evidence below was insufficient to support the criminal division's finding by clear and convincing evidence that no conditions would reasonably protect the public pursuant to 13 V.S.A. § 7553a. He further asks this Court to vacate the trial court's order pursuant to 28 V.S.A. § 301(4) because it "failed to exercise its discretion to at least consider conditions of release under 13 V.S.A. § 7554." However, defendant provides no legal argument supporting this request, instead merely stating that a bail decision cannot be arbitrary. The State argues that the hold without bail order pursuant to both 13 V.S.A. § 7553a and 28 V.S.A. § 301(4) was proper and should be affirmed.

II. Analysis

A. 13 V.S.A. § 7553a

Pursuant to 13 V.S.A. § 7553a, the trial court may, "when the evidence of guilt is great," hold without bail a defendant charged with a felony involving "an act of violence against another person" as one of its elements so long as there is clear and convincing evidence...

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