State v. Jackowski

• Decision Date: 22 November 2006
• Docket Number: No. 04-455.,04-455.
• Citation: 2006 VT 119,915 A.2d 767
• Parties: STATE of Vermont v. Rose Marie JACKOWSKI.
• Court: Vermont Supreme Court

915 A.2d 767

2006 VT 119

STATE of Vermont v. Rose Marie JACKOWSKI.

No. 04-455.

Supreme Court of Vermont.

November 22, 2006.

William D. Wright, Bennington County State's Attorney, and Daniel M. McManus, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

Stephen L. Saltonstall of Barr Sternberg Moss Lawrence Silver Saltonstall & Scanlon, P.C., Bennington, for Defendant-Appellant.

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

JOHNSON, J.

¶ 1. Defendant Rosemarie Jackowski appeals her conviction for disorderly conduct. Defendant argues that the trial court improperly instructed the jury to consider whether defendant was "practically certain" that her conduct would cause public inconvenience or annoyance, when she was charged with intentionally causing public inconvenience or annoyance. Defendant also contends that the trial court erred in excluding from evidence the protest sign she was carrying at the time of her arrest. We reverse and remand.

¶ 2. Defendant was arrested on March 20, 2003, during an anti-war demonstration at the intersection of Routes 7 and 9 in Bennington. During the demonstration, protesters blocked traffic at the intersection for approximately fifteen minutes. Defendant stood in the intersection, praying and holding a sign bearing anti-war slogans and newspaper clippings, including an article accompanied by a photograph of a wounded Iraqi child. Police officers repeatedly asked defendant to leave the intersection, and when she refused, she was arrested, along with eleven other protesters. The State charged them with disorderly conduct, alleging that defendant and the other protesters, "with intent to cause public inconvenience and annoyance, obstructed vehicular traffic, in violation of 13 V.S.A. § 1026(5)."

¶ 3. Defendant's intent was the only issue contested during her one-day jury trial. After several police officers testified for the State, defendant took the stand, admitting to blocking traffic, but stating that her only intention in doing so was to protest the war in Iraq, not to cause public inconvenience or annoyance. In response to the State's motion in limine to exclude defendant's protest sign, the trial court allowed defendant to display the sign to the jury and demonstrate how she was carrying it, but refused to admit it into evidence and allow it into the jury room. At the conclusion of the trial, the court instructed the jury on the issue of intent. The court first instructed the jury that the State could establish defendant's intent to cause public inconvenience or annoyance by proving beyond a reasonable doubt that she acted "with the conscious object of bothering, disturbing, irritating, or harassing some other person or persons." The court then added, "This intent may also be shown if the State proves beyond a reasonable doubt that the defendant was practically certain that another person or persons . . . would be bothered, disturbed, irritated, or harassed." The jury convicted defendant of disorderly conduct. Defendant appeals.

¶ 4. Defendant first argues that the jury charge was improper because the trial court failed to instruct the jury to consider whether defendant acted with the requisite criminal intent. "In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole were misleading or inadequate to aid the jury's deliberations." State v. Shabazz, 169 Vt. 448, 450, 739 A.2d 666, 667 (1999). A jury charge will be upheld "[i]f the charge as a whole breathes the true spirit and doctrine of the law, and there is no fair ground to say that the jury has been misled by it." Harris v. Carbonneau, 165 Vt. 433, 438, 685 A.2d 296, 300 (1996) (internal quotation marks and citations omitted). The charge will stand unless it undermines our confidence in the verdict. Shabazz, 169 Vt. at 450, 739 A.2d at 667.

¶ 5. Defendant relies on State v. Trombley to draw a distinction between offenses that require purposeful or intentional misconduct and those that require only knowing misconduct. 174 Vt. 459, 462, 807 A.2d 400, 404-05 (2002) (mem.). In Trombley, we held that it was error for the trial court to instruct the jury to consider whether the defendant in an aggravated assault case acted "knowingly" or "purposely," when he was charged with "purposely" causing serious bodily injury. Id. The aggravated assault statute in Trombley, 13 V.S.A. § 1024(a)(1), had been amended in 1972 to adopt the Model Penal Code's approach to mens rea, which distinguishes among crimes that are committed "purposely," "knowingly," and "recklessly." Id. at 461, 807 A.2d at 404. Under this approach, a person acts "purposely" when "it is his conscious object to engage in conduct of that nature or to cause such a result." MPC § 2.02(2)(a)(i). A person acts "knowingly" when "he is aware that it is practically certain that his conduct will cause such a result." MPC § 2.02(2)(b)(ii). While the Code's provisions are not binding on this Court, they are "indicative of what the General Assembly intended in adopting the legislation modeled on the Code." Trombley, 174 Vt. at 461, 807 A.2d at 404. Thus, the trial court in Trombley erred in instructing the jury that it could find that the defendant acted "purposely" if "he was practically certain that his conduct would cause serious bodily injury." Id. at 460, 807 A.2d at 403.

¶ 6. Defendant argues that Trombley controls here, as the trial court used a similarly worded jury charge, and the disorderly conduct statute was amended at the same time, and for the same reasons, as the aggravated assault statute in Trombley.¹ The State attempts to distinguish Trombley based on differences in the language of the aggravated assault and disorderly conduct statutes. Unlike the aggravated assault statute, the disorderly conduct statute contains the words "with intent" and not "purposely." Compare 13 V.S.A. § 1026 (establishing mens rea for disorderly conduct as "with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof") with 13 V.S.A. § 1024(a)(1) (listing "purposely," "knowingly," and "recklessly" as culpable states of mind for aggravated assault). This is a purely semantic distinction, and it does not indicate a departure from the Code's approach to mens rea, the adoption of which was "the major statutory change" accomplished by the Legislature's 1972 amendments. Read, 165 Vt. at 147, 680 A.2d at 948. The Code does not differentiate between "with intent" and "purposely"; instead, it uses the two terms interchangeably, explaining in its definitions that "`intentionally' or `with intent' means purposely." MPC § 1.13(12). There is no indication that the Legislature used the phrase "with intent" to register disagreement with the Code's approach to disorderly conduct, and such disagreement seems unlikely in the context of an otherwise unqualified adoption of the Code's approach.

¶ 7. The State cites several cases supporting the proposition that both "purposely" and "knowingly" causing harm involve some element of "intent," and thus, that Trombley's distinction between "purposely" and "knowingly" is illusory. See State v. LaClair, 161 Vt. 585, 587, 635 A.2d 1202, 1204 (1993) (mem.) ("When one causes harm `purposely' or `knowingly,' the person possesses some degree of an intent to harm."); State v. Patch, 145 Vt. 344, 352, 488 A.2d 755, 760 (1985) ("A specific intent crime includes `as an essential mental element that the act be done purposefully or knowingly.'") (quoting State v. D'Amico, 136 Vt. 153, 156, 385 A.2d 1082, 1084 (1978)). The State also identifies cases approving of "practically certain" instructions in aggravated assault trials. See State v. Pratt, 147 Vt. 116, 118, 513 A.2d 606, 607 (1986) (holding that "practically certain" instruction was proper despite lack of actual injury to victim); State v. Blakeney, 137 Vt. 495, 501, 408 A.2d 636, 640 (1979) (stating that specific intent was shown where the defendant was "practically certain that his conduct would cause serious bodily injury"). Each of these cases predates our decision in Trombley, however, and each adheres to an outmoded distinction between "specific intent" and "general intent" crimes—the distinction that the Legislature rejected in adopting the Code's approach to mens rea. See Trombley, 174 Vt. at 460-61, 807 A.2d at 403-04 (linking the Legislature's adoption of the Code's approach to mens rea to the demise of the common-law distinction between general and specific intent offenses). At common law, crimes committed "purposely" and those committed "knowingly" would both have been specific intent offenses. Id. at 461 n. 3, 807 A.2d at 404 n. 3. In the cases the State cites, the defendants did not raise the question of statutory construction at issue in Trombley, so this Court had no opportunity to effectuate the Legislature's adoption of a more modern approach to mens rea. See LaClair, 161 Vt. at 585-87, 635 A.2d at 1203-04 (approving of jury instruction and affirming conviction of defendant where State never charged defendant with "purposely" causing serious bodily injury); Pratt, 147 Vt. at 118, 513 A.2d at 607 (affirming conviction for aggravated assault where defendant's objection to jury charge was based on lack of actual serious injury to victim, which was held irrelevant to the issue of mens rea); Patch, 145 Vt. at 351-52, 488 A.2d at 760-61 (affirming unlawful mischief conviction where defendant asked for jury instruction requiring finding of either "malice" or intent to damage state property, instead of intent to damage property he did not own); Blakeney, 137 Vt. at 499, 501, 408 A.2d at 639, 640 (affirming aggravated assault conviction where information charged defendant with causing serious bodily injury both "knowingly" and "purposely," and where defendant challenged the sufficiency of the evidence, not the jury charge, with respect to mens rea). These cases provide no basis for distinguishing...