State v. Leroux

• Decision Date: 14 August 2008
• Docket Number: No. 07-221.,07-221.
• Citation: 2008 VT 104,965 A.2d 495
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Danny S. LEROUX.

965 A.2d 495

2008 VT 104

STATE of Vermont v. Danny S. LEROUX.

No. 07-221.

Supreme Court of Vermont.

August 14, 2008.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

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

BURGESS, J.

¶ 1. Defendant appeals from his conviction of sexual assault, 13 V.S.A. § 3252(a)(1)(A), following a jury trial on March 13, 2007. On appeal, defendant argues that the trial court committed plain error when it admitted evidence of: (1) events demonstrating defendant's physical and emotional abuse of complainant, Nancy, and (2) several hearsay statements. We affirm.

¶ 2. The State's evidence showed the following. Nancy, an adult, first met defendant in 1999, when Nancy and her mother lived in the same building in Burlington as defendant and his wife. Defendant and his wife would visit with Nancy and her mother and have coffee at least once a week. Nancy's mother died in 2001. In the summer of 2002, defendant and his wife invited Nancy to live with them, and the three of them later moved to Jericho.

¶ 3. While living in Jericho, Nancy's sole income was a monthly check of $600 from Social Security, $400 of which she paid to defendant and his wife for her living expenses. Defendant kept the remaining $200. On receiving the check each month, defendant often drove with his wife and Nancy to the bank drive-through window, where the checks were cashed and the money handed to defendant.

¶ 4. Defendant and his wife did not treat Nancy with respect. When defendant and his wife went out, they often locked the door to the house and left Nancy on the porch outside, without access to food or bathroom facilities. Other troubling incidents were connected to the care Nancy provided for defendant's dog. Nancy often walked defendant's dog. Once, when defendant became upset with Nancy for pulling his dog away from a puddle, he put a choker chain around Nancy's neck, tightened it, and threatened to pull her through a field with the choker chain if she treated his dog like that again. In a separate incident, defendant forced Nancy to lie on the floor like a dog, placed food and water in front of her, and ordered her to stay down until he instructed her to get up, which occurred about an hour later. Defendant also physically abused Nancy on a number of other occasions, once hitting her on the side of the face, and another time kicking her in the buttocks when she reached down to pick something up.

¶ 5. One evening in the late summer or early fall of 2005, when Nancy was in her bedroom, defendant came in and pinned her up against a glass cabinet. He pulled up her blouse and pulled her pants and underpants down around her knees. Nancy testified that defendant fondled her breasts, and his hands "came down, and ... [were] playing with [her]." He put his mouth on her vagina and massaged her breasts. He kissed her, and then penetrated her vagina with his finger. Defendant told Nancy, "you know you want it, you know you want it." Nancy repeatedly told him to stop, and reminded him that his wife was nearby. Defendant responded that "[w]hat my wife don't know ain't going to hurt." He then put Nancy's hand inside his pants.

¶ 6. Right after this incident, Nancy went into the bathroom to see if she was bleeding, because she felt that he had injured her. She then went into the front room where defendant's wife and some family were sitting, and broke down crying as she described what had happened. Defendant's wife told her she must be "crazy" and told her to stay in her room until "you look me in the eye and tell me Danny didn't do it." About twenty minutes later defendant's wife went to Nancy and asked whether defendant had touched her. Nancy replied that he had not, because she did not want defendant or his wife to hit her.

¶ 7. Nancy moved out of the house in November 2005. In January 2006, she was assaulted by defendant's wife on the street. At that point, Nancy decided to report the sexual assault to the police.

¶ 8. Before trial, the State filed a "Notice Of Other Bad Acts" pursuant to Vermont Rule of Criminal Procedure 26(c). See V.R.Cr.P. 26(c) (the State must provide "a written statement of the acts or offenses it intends to offer" pursuant to V.R.E. 404(b) to the defense at least seven days before trial). The notice explained the State's intention to introduce evidence of defendant's acts during the charged sexual assault, along with evidence that defendant had kicked complainant, put a dog collar around her neck, locked her out of the house when he and his wife were not home, mockingly referred to her as a virgin, and kept her Social Security check for his own use. The State posited that the complainant should be allowed to testify to "the full spectrum of abuse perpetrated by Defendant" so that the jury could have a complete understanding of the nature of the parties' relationship, and could grasp the context of the alleged sexual assault.

¶ 9. At a pretrial hearing, the State further explained that the bad-act evidence would show the abusive nature of complainant's environment. Although the court first indicated that the incident in which defendant kicked Nancy should not come in, it later stated that "whatever [was] in the notice [was] admissible, at this point." Defense counsel declined to object to the evidence proffered in the State's notice, stating that he was "willing to deal with [it] at trial."

¶ 10. At trial, complainant recounted the sexual assault and other events that had occurred while she lived with defendant and his wife. As part of this history, complainant testified, without objection, that she was ordered to stay in her room by defendant's wife until complainant recanted her claims against defendant. Complainant also testified that defendant hit her in the face and made her stay down on the floor like a dog, even though these incidents had not been disclosed in the State's Rule 26(c) notice. No objection was made to the other bad-acts testimony. Defendant's neighbor also testified. She described Nancy as appearing fearful or nervous, and claimed that Nancy had inquired as to whether the neighbor would serve as a secret conduit for phone calls, stamps, mail, and magazines. Defendant did not object to the neighbor's testimony. The jury returned a verdict against defendant. On appeal, defendant argues that the trial court committed plain error in admitting evidence of defendant's physical and emotional abuse of Nancy beyond the facts of the sexual assault charged and in admitting Nancy's testimony about the wife's verbal order and the neighbor's descriptions of Nancy's inquiries, in violation of the rule against hearsay.

I.

¶ 11. Defendant raises a number of challenges to the admissibility of the State's evidence of defendant's mistreatment of Nancy. Defendant argues that the State failed to disclose all of this bad-act evidence as required by Rule 26(c) and improperly introduced evidence about the incident in which defendant kicked Nancy in the buttocks, an event for which defendant was subject to other pending charges at the time of trial. Defendant also contends that this evidence was irrelevant, highly prejudicial, and barred by Vermont Rule of Evidence 404(b). See V.R.E. 404(b) (excluding, generally, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.")

¶ 12. Because defendant failed to object to the introduction of this evidence at trial, we review solely for plain error. See V.R.E. 103(a)(2) (error cannot be predicated on a ruling that admits evidence unless an objection was made at trial or plain error exists). "Plain error lies only in the rare and extraordinary cases where a glaring error occurred during trial that was so grave and serious that it strikes at the very heart of defendant's constitutional rights." State v. Longley, 2007 VT 101, ¶ 24, 182 Vt. 452, 939 A.2d 1028 (citation and quotations omitted). "The plain error rule should be invoked only in the most exceptional circumstances." State v. Welch, 136 Vt. 442, 444, 394 A.2d 1115, 1116 (1978).

¶ 13. In its notice of other bad acts, the State explained its intent to introduce evidence of a number of prior incidents of physical and emotional abuse of Nancy by defendant. This evidence was to show the abusive context of intimidation and fear surrounding the sexual assault. At trial, the State introduced this evidence. Nancy also testified that defendant hit her in the face and treated her like a dog. Neither of these events had been disclosed in the notice of other bad acts. Defendant did not object.

¶ 14. Rule 26(c) requires the State to disclose to defendant a list of the bad acts that the State intends to present at least seven days before trial. Failure to notify defendant that Nancy would testify about the incidents where defendant hit her and treated her like a dog violated this rule. See State v. Houle, 162 Vt. 41, 45, 642 A.2d 1178, 1181 (1994). Even so, no plain error exists if "the jury had before it [other] substantial evidence from which [the jury] could find guilt." Id. "When ... [defendant] claims plain error in the admission of prejudicial evidence, [defendant] must demonstrate that the judgment was substantially affected by admission of the testimony." State v. Bubar, 146 Vt. 398, 401, 505 A.2d 1197, 1199 (1985); see also State v. Muscari, 174 Vt. 101, 117-18, 807 A.2d 407, 420 (2002) (defendant must show how he was harmed by lack of Rule 26(c) notice before this Court will reverse). Here, the evidence on which defendant predicates plain error described but two of the many claimed insults and incidents of demeaning mistreatment introduced into evidence to supply context for the alleged...