State v. MacFarland
| Decision Date | 05 November 2021 |
| Docket Number | 20-297 |
| Citation | 275 A.3d 110 |
| Parties | STATE of Vermont v. Elizabeth MACFARLAND |
| Court | Vermont Supreme Court |
David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff Appellee.
Matthew Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson,1 Eaton, Carroll and Cohen, JJ.
¶ 1. Defendant Elizabeth MacFarland appeals convictions for resisting arrest and unlawful trespass following a bench trial in which the trial court refused to consider her diminished-capacity defense. Relying on Vermont Rule of Criminal Procedure 12.1 and its own scheduling and discovery order, the trial court found that defendant failed to properly notify the State of her intention to argue diminished capacity. Defendant argues that the plain meaning of Rule 12.1 does not require notice of diminished capacity when a defendant does not rely on expert witnesses, that the trial court's scheduling order did not independently provide a basis for notice, and that, as charged, the notice element of misdemeanor unlawful trespass denotes a subjective standard. We agree that the trial court erred in refusing to consider diminished capacity and that the error was not harmless. Accordingly, we reverse and remand.
¶ 2. The following evidence was presented at trial. On the evening of December 21, 2018, defendant visited Arkham Bar in Brattleboro. During her stay at the bar, which lasted about an hour, defendant purchased a large bottle of champagne and proceeded to drink much of its contents. Soon thereafter, defendant became disruptive, and the bar's bouncer confronted defendant. He asked defendant to talk with him outside. In apparent response to the bouncer's question, defendant spoke incoherently about politics and her family. The bouncer persisted and again asked her to speak with him outside. Defendant refused. The bouncer then pulled on defendant's bar stool and told her she "had to leave." Defendant stood up from her stool, ran to a corner, and muttered to herself. Soon thereafter, the bouncer called the police, and two Brattleboro police officers arrived a few minutes later.
¶ 3. Sergeant Jason Hamilton asked defendant "to come outside to talk to him." She refused, and while remaining on the floor in a corner, "deflected" the officers’ order by speaking about her cell phone, which she held in her hand. Sergeant Hamilton stood defendant up by her arm, at which point defendant went completely limp. The officers were forced to carry defendant from the bar. As they did, defendant yelled that the officers were doing so because she had a high IQ and, therefore, they could not understand her. Defendant also began to curse loudly.
¶ 4. Once outside, the officers put defendant on the ground and tried to handcuff her hands behind her back. The officers also tried to remove defendant's purse, which was slung over her arm. Defendant continued screaming loudly. She screamed that the officers were arresting her because "they were misogynistic and part of a patriarchal police structure." Defendant screamed that the officers were too stupid to speak with her because her IQ was unusually high. More officers arrived. Shortly after that, defendant ripped a piece of plastic off a police cruiser during the struggle to restrain her. Eventually the officers subdued defendant and placed her, handcuffed, into a police cruiser.
¶ 5. Defendant was charged with four misdemeanors, two of which defendant appeals.2 Defendant was charged with unlawful trespass by "remain[ing] ... in any place as to which notice against trespass is given by ... actual communication by the person in lawful possession or his or her agent." 13 V.S.A. § 3705(a)(1)(A). The State also charged defendant with resisting arrest by "intentionally attempt[ting] to prevent a lawful arrest on [ ] herself." Id. § 3017(a).
¶ 6. Defendant was arraigned on Monday, December 24, 2018. On that same date, the trial court issued a scheduling and discovery order to the parties that read, in part, "[d]efendant's attorney shall give notice of alibi, insanity, or diminished capacity defenses in the form required by V.R.Cr.P. 12.1(b) within no later than 30 calendar days." The matter proceeded to a bench trial.
¶ 7. On cross-examination during the one-day trial, defense counsel questioned Sergeant Hamilton about defendant's preliminary breath test administered at the police station. The State objected that preliminary breath test results were not admissible; defense counsel agreed but asserted that he was only interested in establishing that defendant was intoxicated, and the extent to which the breath test result indicated the presence of alcohol was admissible for that purpose. Furthermore, defense counsel noted that lay testimony is admissible to establish intoxication. The trial court agreed and then asked defense counsel whether he was making a diminished-capacity argument. Counsel replied that he was. The trial court asked whether the State had been notified of defendant's intention to pursue a diminished-capacity defense. The State replied that it had not received notice. Defense counsel asserted that no notice was required under the plain language of Rule 12.1. Defense counsel maintained that Rule 12.1 requires notice only in the event a defendant intends to call expert witnesses to support the defense.
¶ 8. After hearing the State's objections and defense counsel's explanation as to why no notice was required, the trial court initially concluded that it Defense counsel resumed. In response to counsel's question about the preliminary breath test, Sergeant Hamilton said that he administered the test, and it indicated the presence of alcohol, but he did not recall the results.
¶ 9. Defense counsel called another officer to testify when presenting its case, Sergeant Stanley, who engaged with defendant outside the bar. Defense counsel and Sergeant Stanley participated in the following colloquy:
¶ 10. After a recess, the trial court determined that defense counsel failed to properly notify the State of its diminished capacity defense under Rule 12.1 and pursuant to the December 24 scheduling order. As a sanction, the trial court refused to consider diminished capacity. Defense counsel objected.
¶ 11. During summary arguments, defense counsel argued that the words "actual communication" in the unlawful trespass statute meant "that there's got to be not only a statement made to that individual, but that individual needs to be able to comprehend what that statement is for that to be actually communicated." Counsel argued that the words communicated to defendant by the bouncer and the police officers were vague and not statements telling defendant she needed to leave the bar. However, because defense counsel could not raise the issue of diminished capacity, he did not argue that defendant did not actually perceive the bouncer's and the officers’ statements.
¶ 12. The trial court found defendant guilty of unlawful trespass and resisting arrest. Regarding the unlawful trespass charge, the court concluded that because the bouncer "instructed" defendant that she needed to leave the bar, defendant "therefore remained in the bar despite being instructed that she was trespassing." The court also concluded that defendant intentionally resisted arrest. Defendant, the court found,
¶ 13. We begin with defendant's first argument on appeal, whether the plain language of Rule 12.1 required her to notify the State that she intended to rely on a diminished-capacity defense at trial.3 "Procedural rules have statutory force." State v. Gurung, 2020 VT 108, ¶ 23, ––– Vt. ––––, 251 A.3d 572 (citation omitted). The interpretation of procedural rules, therefore, is a "question of law which we review de novo." State v. Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126. "In construing a procedural rule, we look first to the rule's plain language, just as with statutory construction." State v. Villar, 2017 VT 109, ¶ 7, 206 Vt. 236, 180 A.3d 588. Specifically, we look to the "plain, ordinary meaning" of the words themselves. Id. (citation omitted).
¶ 14. Rule 12.1(a) provides in relevant part:
A defendant who wishes to offer an alibi, raise the issue of insanity or offer expert testimony relating to a mental disease, or defect or any other mental condition of the defendant bearing upon the issue of his or her guilt must give written notice thereof, together with the information required by subdivision (b) of this rule, to the prosecuting attorney on the date of the status conference, or at least 28 days prior to trial, whichever is sooner.
V.R.Cr.P. 12.1(a). At trial, the court concluded that Rule 12.1(a) "does require notice of a diminished capacity defense, and on the other hand it...
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State v. Taylor
...instruction. Id. at 244, 762 A.2d at 838. ¶ 13. We engaged in a similar analysis in State v. MacFarland, 2021 VT 87, 216 Vt. 126, 275 A.3d 110. that case, the defendant was convicted of unlawful trespass and resisting arrest. The evidence showed that the defendant "consumed nearly two liter......