State v. Kandzior

• Decision Date: 29 May 2020
• Docket Number: No. 2019-069,2019-069
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Loren Kandzior

2020 VT 37

State of Vermont v. Loren Kandzior

No. 2019-069

Supreme Court of Vermont

December Term, 2019

May 29, 2020

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, Caledonia Unit, Criminal Division

Michael S. Kupersmith, J. (Ret.), Specially Assigned

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

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

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned

¶ 1. CARROLL, J. Defendant, Loren Kandzior, challenges his conviction on one count of sexual assault in violation of 13 V.S.A. § 3252(a) on two grounds. First, defendant argues that the trial court erred by excluding evidence of a prior false rape allegation. Second, defendant argues that his right to a fair trial was violated because the jury was exposed to "extraneous, highly prejudicial information"—namely, the substance of an undetermined number of bench conferences that occurred during the three-day trial. We conclude that the trial court committed plain error by failing to investigate when it became aware that the jury may have overhead numerous bench conferences during defendant's trial. We accordingly vacate defendant's conviction and remand for a new trial.¹

I. Facts

¶ 2. In July 2017, defendant was charged with one count of sexual assault. A three-day trial was held in August 2018. On the third day of trial, during defense counsel's cross-examination of the alleged victim, the prosecutor asked to approach the bench. The court conducted a bench conference (hereinafter the "specific bench conference") during which counsel discussed the relevance of a particular line of questioning. Immediately after the specific bench conference, the prosecutor asked to approach again and informed the court that someone had told her that "she could hear everything we were saying" at the bench conferences.² Defense counsel quickly asked the court to instruct the jury to strike anything they may have heard. After an indiscernible exchange, defense counsel repeated that she did not "have a problem with [the court] just telling [the jury] if they heard us up here, to strike whatever they heard."

¶ 3. After the bench conference concluded, the court had the following exchange with the jury:

The Court: Jurors, have you all been able to hear us? Yes? Don't pay attention to it.

Unidentified Juror: Can hear the white noise, but—

The Court: I don't understand. I've got my hand on the mute button. We have the white noise machine. Have you heard us throughout the trial? No?

Unidentified Juror: Yeah.

The Court: Yes. Some could, yes.

Unidentified Juror: You can hear noise. I haven't been able to hear what you're saying.

The Court: Just shows you how good this equipment is. (Indiscernible) wrong. I should turn it off. I don't know. Okay, well, the reason we huddle up here is so you can't overhear us. So you can't unring the bell, but do the best you can.

¶ 4. Following this exchange, defense counsel did not move for a mistrial. Instead, she said "[a]ll right, Judge" and proceeded with her cross-examination of the alleged victim. That same day, the jury returned a guilty verdict. Following conviction, defense counsel filed several post-trial motions, including a motion for a new trial pursuant to Vermont Rule of Criminal Procedure 33. In the motion, defense counsel alleged that the "jury overheard every bench conference" and argued that this fact alone entitled defendant to a new trial.

¶ 5. In a written decision and order, the trial court denied the motion for a new trial for several reasons. First, the court pointed out that upon learning the jury may have overheard bench conferences throughout the trial, the only remedial action defense counsel requested was an instruction asking the jury to strike whatever they heard. The court complied and defense counsel made no other objection.

¶ 6. Second, the court emphasized that it was not clear what bench conferences the jury overheard. The court explained that when it asked the jury members what they heard, they gave equivocal answers. Although one juror responded that he heard the specific bench conference, he stated that he could not hear what was said. From this response, the court assumed that it was unlikely the jury overheard the words spoken at bench conferences because other persons besides the jury were in the courtroom—namely, court personnel and trial assistants for the State and defendant. Given the presence of these other people, the court concluded that "if the actual conversations were overheard, these persons would have called that fact to the [c]ourt's attention."

¶ 7. Finally, assuming the jury overheard bench conferences throughout the trial, the court concluded that defendant failed to demonstrate he was prejudiced. The court explained thatmany of the bench conferences were not prejudicial. It cited as an example the specific bench conference, which "involved only a discussion about what counsel hoped to develop during a line of cross-examination."

¶ 8. Defense counsel moved for reconsideration, arguing that the court should either order a new trial or hold an evidentiary hearing to determine what the jurors heard. The court denied the motion to reconsider. It concluded that it cured any possible prejudice by instructing the jury to strike whatever they may have heard. It also concluded that defendant "waived" his right to have the jurors questioned because he did not ask the court to voir dire the jury when he learned of the problem. Finally, the court reiterated that defendant was not prejudiced because it was "confident that the only bench conference that the jury might have overheard was the ' specific' conference." Defendant timely appealed.

¶ 9. On appeal, defendant argues that he did not waive his right to a fair trial by an untainted jury. Citing State v. Woodard, 134 Vt. 154, 158, 353 A.2d 321, 323 (1976), defendant argues that "the right to a fair trial by jury is so fundamental that it can be raised at any time." Second, regardless of any action—or lack thereof—taken by defense counsel, defendant maintains that "the trial court had an independent duty to investigate the taint." Moving to the merits, defendant argues he is entitled to a new trial because the record establishes that an irregularity occurred—i.e., the jurors overheard bench conferences throughout the trial—that had the capacity to affect the verdict. Alternatively, defendant argues that under the plain-error standard, "[t]he mere capacity for extraneous influence upon the jury warrants reversal."

¶ 10. In response, the State argues that defendant waived the jury-taint claim because he did not immediately move for a mistrial. "Nothing in Vermont law," the State asserts, "suggests that defense counsel's conduct cannot operate as a waiver of further investigation into juror taint." Regardless, on the merits, the State contends that the trial court correctly determined that a new trial was not required. The State emphasizes that the record is unclear as to which bench conferences the jury heard and, assuming the jurors heard the bench conferences, it disputes theirprejudicial nature. Alternatively, the State argues that the case should be remanded for a hearing to determine what the jurors heard.

¶ 11. Because defense counsel did not immediately move for a mistrial upon learning that the jury may have overheard various bench conferences, the jury-taint claim was not preserved. Nevertheless, we hold that the trial court committed plain error by failing to voir dire the jury when it learned of the possible jury taint. Without a voir dire, the trial court lacked an evidentiary basis to determine whether defendant was prejudiced. We accordingly vacate defendant's conviction and remand for a new trial.

II. Analysis

¶ 12. Defendant argues that the trial court erred in denying his post-trial motion for a new trial because the jury heard highly prejudicial, extraneous information. Rule 33 permits the trial court, on motion from a defendant, to "grant a new trial . . . if required in the interests of justice." The decision on a motion for a new trial "is normally entrusted to the discretion of the trial court." State v. McKeen, 165 Vt. 469, 472, 685 A.2d 1090, 1092 (1996). Under the abuse-of-discretion standard, "a claim of error can be supported only where the trial's court discretion was either totally withheld, or exercised on clearly untenable or unreasonable grounds." State v. Messier, 2005 VT 98, ¶ 15, 178 Vt. 412, 885 A.2d 1193.

¶ 13. Where a defendant fails to timely move for a new trial, however, we review for plain error. See Woodard, 134 Vt. at 156, 353 A.2d at 322 (assuming that defense counsel failed to raise issue before trial court and reviewing for plain error). Plain error consists of "glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." State v. Oscarson, 2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337 (quotation omitted). "To reverse on plain error, we must find not only that the error seriously affected substantial rights, but also that it had an unfair prejudicial impact on the jury's deliberations." Id. ¶ 14. We conclude that defendant failed to timely move for a mistral and review for plain error. Nevertheless, we conclude that this is one of the "rare and extraordinary cases" where plain error occurred. State v. Turner, 145 Vt. 399, 403, 491 A.2d 338, 340 (1985).

A. Preservation

¶ 15. The trial court denied the ...