State v. Lampman

• Decision Date: 02 May 2011
• Docket Number: No. 09–304.,09–304.
• Citation: 22 A.3d 506,2011 VT 50
• Parties: STATE of Vermontv.Lisa LAMPMAN.
• Court: Vermont Supreme Court

22 A.3d 506

2011 VT 50

STATE of Vermont

v.Lisa LAMPMAN.

No. 09–304.

Supreme Court of Vermont.

May 2, 2011.

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

ENTRY ORDER

¶ 1. Defendant appeals her conviction of simple assault arguing that certain comments made by the judge were an abandonment of his impartiality and denied defendant a fair trial, that the trial court abused its discretion by not allowing defendant to present certain impeachment evidence, and that the jury instructions were erroneous. We affirm.

¶ 2. This case arose out of relationships among three women: the victim, Amy, and defendant Lisa Lampman.¹ Amy and the victim were romantically involved for two and a half years. After that relationship ended, Amy moved in with defendant. In January 2009, the three women encountered each other in a gas station parking lot, where a fight ensued. Four individuals were criminally charged as a result of the fight: defendant, Amy, Nathan (Amy's son), and Anthony. The victim testified at trial that she noticed these four individuals following her in defendant's truck. Nathan was hanging out the window, screaming at her, and defendant's truck pulled across several lanes of traffic to continue following the victim. The victim pulled into a gas station, and the four individuals jumped out of defendant's truck. Anthony smashed the back window of the victim's truck, while another person broke her passenger-side mirror. Defendant slapped the victim's glasses off of her face, and Nathan tackled the victim from behind. Defendant then began kicking the victim, and when the victim tried to get up, Anthony grabbed her and pushed her down to the ground. The proprietor of the gas station witnessed the victim being beaten and trying to defend herself. Amy stated that she observed defendant deliver a “football style kick” to the victim's face. The victim's injuries were consistent with such testimony. Defendant claimed instead that she and Amy had simply been driving Nathan and Anthony to work and that her group encountered the victim only by chance. Throughout trial, defendant maintained that the victim was the instigator, starting the fight by pushing Amy, and that defendant had merely acted in self-defense. The jury convicted defendant of simple assault.

¶ 3. The State offered testimony from Taylor, who had been driving behind defendant on the day in question. Taylor knew defendant, and she testified that she saw her own boyfriend, Cody, in defendant's truck. Taylor was the only witness to testify that Cody was in defendant's truck. At the request of one of defendant's passengers, Taylor let defendant's truck pull in front of her car and behind the victim's vehicle. She saw Nathan hanging out of the truck's window and yelling. She followed defendant's truck to the gas station and observed the four individuals named above exit the truck. She watched the ensuing fight, although she did not see who started it. Taylor stated that sometime after the incident she spoke to Nathan at his place of employment, where Cody and Anthony also worked. The prosecuting attorney asked the witness, “What did you talk about with Nathan regarding the incident?” She responded, “They just said that they didn't mean for [me] to see that.” “Didn't mean for you to see what?” he inquired. “The fight,” she replied.

¶ 4. Defense counsel then objected to the question, arguing that hearsay statements attributable to a co-conspirator were inadmissible unless the court found independent evidence of a conspiracy. See V.R.E. 801(d)(2)(E) (out-of-court statement not considered hearsay if statement is made “by a co-conspirator of a party during the course and in furtherance of the conspiracy”); State v. Voorheis, 2004 VT 10, ¶ 22, 176 Vt. 265, 844 A.2d 794 (“In the absence of a formal conspiracy charge, the court must find independent evidence of a concert of action in which the defendant was a participant.”). The trial court responded, “I'm finding independently that there was a conspiracy, at least an implicit conspiracy to beat up [the victim],” thus overruling defendant's objection.

¶ 5. Defendant made no objection to this ruling at trial, nor did she request a limiting instruction or move for a mistrial. Further, she did not raise any issue with the court's statement in her motion for a new trial. However, on appeal, defendant argues that by finding a conspiracy, the judge usurped the jury's role as factfinder on the ultimate issue of self-defense and deprived her of the right to a trial by jury. Because this claim arises for the first time in this appeal, defendant has failed to preserve her claim of error. See, e.g., State v. McGee, 163 Vt. 162, 165, 655 A.2d 729, 732 (1995) (discussing effect of failure to preserve claim of error for jury instructions).

¶ 6. We generally review unpreserved claims of error under our traditional plain error standard. See, e.g., State v. Carrasquillo, 173 Vt. 557, 559, 795 A.2d 1141, 1144 (2002) (mem.) (explaining that we review unpreserved evidentiary rulings for plain error only); State v. Koveos, 169 Vt. 62, 69, 732 A.2d 722, 727 (1999) (same). “Plain error exists only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights.” State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) (quotation omitted). To reverse on plain error, this Court must “find that the claimed error not only seriously affected substantial rights, but that it had an unfair prejudicial impact on the jury's deliberations. Prejudice must exist to demonstrate that error undermined fairness and contributed to a miscarriage of justice.” Id. at 539, 632 A.2d at 26 (quotation omitted).

¶ 7. Defendant argues that the trial court's statement amounted to a finding that she had committed an uncharged criminal act and that it should have sua sponte offered a limiting instruction to correct this error. According to defendant, without such instruction, the jury could have considered this finding for any. purpose. Defendant contends that because the only contested issue on the assault charge was whether she acted in self-defense, the court's finding of a conspiracy on the record was “tantamount to a directed verdict,” defeating her presumption of innocence and violating her right to a jury trial.

¶ 8. Defendant's assertion is a mischaracterization of what amounted to a required evidentiary ruling. Defendant objected to the witness's testimony on the grounds that it was hearsay and could come in only if there was an evidentiary finding of conspiracy. The court then had to determine if there was “independent evidence of a concert of action in which the defendant was a participant.” Voorheis, 2004 VT 10, ¶ 22, 176 Vt. 265, 844 A.2d 794; see also Reporter's Notes, V.R.E. 801(d)(2)(E) (“If the statement is offered for its truth as an admission, the trial court must find as a preliminary matter that there is independent evidence of the existence of the conspiracy.”); 5 J. McLaughlin, Weinstein's Federal Evidence § 801.34[6][c][i], at 801–100 (2d ed. 2009) (“The existence and membership of a conspiracy are preliminary questions of fact that must be resolved by the district court before a challenged statement may be admitted under Rule 801(d)(2)(E).”). For purposes of its evidentiary ruling, the court found sufficient evidence of an “implied conspiracy” such that Nathan's statement was treated as the admission of a co-conspirator. See Reporter's Notes, V.R.E. 801(d)(2)(E). While it would have been better practice to make such a ruling outside the hearing of the jury, defendant fails to show that this comment affected her substantial rights or had an unfair prejudicial impact on the jury's deliberations, especially given the trial court's jury instructions.

¶ 9. We note that other courts have refused to find reversible error in similar cases, even where the defendants were facing charges of conspiracy and were convicted of such crimes. In State v. Moye, 199 Conn. 389, 507 A.2d 1001 (1986), for example, the defendant was charged with arson and conspiracy to commit arson. In denying a hearsay objection at trial, the court stated in front of the jury that “[t]he conspiracy has been established at least on a prima facie basis, at least in the opinion of this Court, and that permits this to come in.” Id. at 1004. The defendant filed a belated motion for a mistrial, which was denied.

¶ 10. On appeal, Moye argued that he was denied a fair trial due to the trial court's statement. The appeals court disagreed. It characterized the appeal as “an ambush of the trial judge.” Id. at 1005. It noted that the trial court had given a curative instruction couched in general terms in its jury instructions, without objection. It found that the jury charge language made clear that “the jury during its deliberations was not to consider the action of the trial court in ruling on the admissibility of evidence, that it should consider only the evidence admitted and that proof beyond a reasonable doubt, not prima facie evidence, was required to find the defendant guilty.” Id. The Moye court presumed that the jury followed these instructions, and it also found ample evidence had been presented at trial to show that a conspiracy existed. Id. It thus concluded that the trial court's statement did not deprive the defendant of a fair trial. Id.

¶ 11. The United States Court of Appeals for the Fifth Circuit reached a similar conclusion in United States v. Lance, 853 F.2d 1177 (5th Cir.1988). There, the defendants were convicted of conspiring to possess and distribute illegal drugs, and they argued that they were denied a fair trial due to the trial court's ruling on the admissibility of co-conspirator testimony. In that case, the trial court stated in front of the jury that it had...