State v. Koveos

• Decision Date: 05 February 1999
• Docket Number: No. 98-248.,98-248.
• Citation: 732 A.2d 722
• Parties: STATE of Vermont v. Emmanuel E. KOVEOS.
• Court: Vermont Supreme Court

732 A.2d 722

STATE of Vermont v. Emmanuel E. KOVEOS.

No. 98-248.

Supreme Court of Vermont.

February 5, 1999.

Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Karen Shingler, Burlington, and Nathan Z. Dershowitz and Victoria B. Eiger of Dershowitz & Eiger, P.C., New York City, for Defendant-Appellant.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Defendant appeals from a judgment entered in the Chittenden District Court on a jury verdict finding him guilty of lewd or lascivious conduct with a child in violation of 13 V.S.A. § 2602. He seeks a new trial because: (1) one of the jurors who heard the case was not qualified for service; (2) the court admitted videotaped testimony of a particular witness; (3) the court warned defendant that presentation of certain testimony would open the door to character evidence under V.R.E. 404(b); and (4) the trial judge had contact with jurors during their deliberations without defendant or his counsel being present. We conclude that all of these asserted errors were either affirmatively waived or insufficiently preserved to require us to disturb the verdict. Accordingly, we affirm.

Defendant does not challenge the sufficiency of the evidence admitted at trial in support of the verdict of guilty. This evidence concerned an incident that took place on January 22, 1997 at the Greek Orthodox church in Burlington, where defendant was serving as a priest. Consistent with the verdict, the evidence permitted the jury to find that defendant touched a 12-year-old girl in a lewd and lascivious manner while giving her a Greek lesson at the church. Two other children, sisters ages nine and eight, were also participating in the lesson. Defendant testified at trial and stated, inter alia, that he regarded the victim as his "grandchild" and never touched her with the purpose of gratifying himself sexually.

The jury was drawn on February 2, 1998, and the trial commenced that day. The jury returned its verdict four days later. The trial court subsequently denied two defense motions for a new trial and sentenced defendant on May 21, 1998 to incarceration of six months to five years, with all but six months suspended in favor of probation. Defendant filed a timely notice of appeal. The trial court denied defendant's motion for a stay of execution, a determination subsequently affirmed by this Court.

Defendant's first contention is that he is entitled to a new trial because the fore-person of the jury was not a resident of Chittenden County as required by 12 V.S.A. § 64. This statute provides that a person is disqualified from serving on a jury if the person is not "a resident of the county." Defendant first brought this issue to the attention of the trial court in his second motion for new trial filed on April 6, 1998, two months after the jury returned its verdict. The court thereafter conducted an evidentiary hearing and determined that (1) the juror in question had been a resident of Chittenden County when the jury pool was assembled in July 1997, (2) she moved to neighboring Franklin County the following month, and (3) a jury questionnaire she filled out, received by the court on the Thursday before the Monday on which she was chosen for the jury in this case, disclosed her change of residence.

For purposes of our analysis, we will assume that the juror in question would have been disqualified from service had defendant raised the issue during jury selection.¹ We hold that defendant has waived this issue by not raising it prior to the impanelment of the jury.

Defendant rests his argument on two nineteenth century cases in which this Court held that the qualification of individual jurors to serve could be challenged even post-trial if defendant did not know of the disqualifying circumstances earlier. See Briggs v. Town of Georgia, 15 Vt. 61 (1843) (juror disqualified because he did not meet then-applicable requirement that he be a freeholder); Quinn v. Halbert, 52 Vt. 353 (1880) (juror disqualified because he was not a citizen). The rationale is explained in Quinn:

The defendant, by the Constitution, had the right to a trial by jury, which means a legal jury, or a jury of those who could be lawfully called to act in that capacity. The defendant, not being made aware of the disqualification until after the trial was closed, did not waive it. . . . [I]n the early case of Briggs v. Georgia, supra, this court held that such objection was not waived by failure to challenge, and we think correctly. The jurors, being elected in the manner already stated [i.e. by election at town meeting upon nomination of board of civil authority], are presumed to be legal jurors, and under our practice it is rarely, if ever, that a juror has been asked whether he was an alien or a citizen. At the present day, when in some portions of the country it is very difficult, under the laws as administered, to obtain well-qualified, intelligent jurors, we think there should be at least no forced construction of the statute that will lower the standard relative to their selection and qualifications. Nor should a party having the right to a trial by jury be compelled to abide the result of a trial by others than legal jurors, unless he has knowingly submitted to such a trial.

Id. at 366-67. As defendant emphasizes, we have never overruled Quinn by decision.

The information available to challenge juror qualifications and the law on preservation of challenges have, however, developed substantially since Quinn. With the adoption of the Vermont Rules of Criminal Procedure, we have specifically required that any challenges to prospective jurors "for cause" be made before the jury is impaneled. See V.R.Cr.P. 24(b). There is no exception from this requirement for statutory qualifications. Criminal Rule 24 also authorizes parties and their attorneys to examine prospective jurors prior to their selection. See id. 24(a). Moreover, we have adopted jury selection rules that require prospective jurors to complete a questionnaire on their qualifications for jury service. See Rules on Qualification, List, Selection and Summoning of All Jurors Rule 4(b) (1993). Our general policy is now that "[t]he right to challenge a juror is waived by a failure to object before the jury is impaneled if the basis for the objection is known or might, with reasonable diligence, have been discovered during voir dire." In re Nash, 158 Vt. 458, 467, 614 A.2d 367, 372 (1991). Once the jury is impaneled, the law presumes the jury is beyond challenge. See Lattrell v. Swain, 127 Vt. 33, 37, 239 A.2d 195, 198 (1968).

Our recent decisions reflect a strong policy against finding categories of errors as plain per se, such that preservation is not required for appellate intervention. See State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989). Consistent with this policy, we have overruled past decisions that have recognized errors without preservation. See State v. Loveland, 165 Vt. 418, 422, 684 A.2d 272, 275 (1996).

We see no reason to ignore the general preservation requirement in these circumstances. The rationale of Quinn is no longer persuasive. The decision was not reflected in the drafting of Criminal Rule 24(b). Moreover, as the facts of this case demonstrate, defendant had ample opportunity to determine the facts he now believes are important. By the date of the jury draw, the jury questionnaire had reached the court. If it had not been filed, defendant could have insisted on compliance with the questionnaire requirement before going forward with jury selection, or asked the qualification questions during voir dire.

Because the challenge to the qualification of the juror was not made prior to the impanelment of the jury, we review it only for plain error. See V.R.Cr.P. 52(b). "Plain error exists only in extraordinary situations where it is obvious and strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice." See State v. Forant, 168 Vt. ___, ___, 719 A.2d 399, 401 (1998) (citation and internal quotation marks omitted). Defendant has demonstrated no prejudice or violation of his constitutional rights. Because cases may be heard outside the circuit where the case is filed, it is common for jurors to be residents of counties other than that in which the offense occurred. In examining a related issue, we have noted that people's attitudes do not "differ along county lines." Murphy, 134 Vt. at 109, 353 A.2d at 349. There is no plain error.

Defendant's next claim of error relates to the admission of a videotape deposition of the elder of the two sisters who had been present during the Greek lesson around which this case centers. During discovery, defendant sought to depose the sisters but, acting pursuant to V.R.Cr.P. 15(f)(2) and (3), the trial court restricted the deposition to written questions submitted to the deponents' attorney. In seeking a protective order that would prohibit the depositions, the sisters' father submitted an affidavit that stated that neither sister "has any personal first-hand knowledge material to the proof of or defense to any essential element of any crime in which Mr. Koveos may or may not have been involved."

Following this ruling, the parties agreed that defense counsel could depose the older sister as long as defendant was not present and the videotape could be used at trial in lieu of live testimony. During her deposition, which was taken before a judge, the sister gave testimony that was highly favorable to the State and, notwithstanding her father's affidavit, involved firsthand knowledge of the events in issue. Over the objection of defendant, the State used the video deposition at trial.

Defendant's primary argument is that the trial court committed plain error in admitting the deposition. In defendant's view, he was denied his right to...