State v. Mead

• Decision Date: 14 June 2012
• Docket Number: No. 10–414.,10–414.
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Jason MEAD.

54 A.3d 485

2012 VT 36

STATE of Vermont

v.Jason MEAD.

No. 10–414.

Supreme Court of Vermont.

June 14, 2012.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Andrew R. Strauss, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.

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

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

ROBINSON, J.

¶ 1. Defendant was convicted of attempted second-degree murder following a jury trial. He appeals that conviction on four grounds: (1) a State's witness and a juror had improper contact during trial; (2) the trial court admitted excerpts of defendant's testimony at a relief-from-abuse (RFA) hearing at which defendant was not represented by counsel; (3) the trial court admitted evidence of prior bad acts of defendant; and (4) the jury charge did not require the jury to identify which gunshot supported its conviction. We affirm.

¶ 2. The facts, viewing the evidence in the light most favorable to the prosecution as prevailing party, are as follows. Defendant attended a party at a Burlington apartment on a summer night in 2009. Denise Wildasin, defendant's ex-girlfriend and the mother of his child, and Tim Nunes, her new love interest, were also attendees at the party. Defendant had talked with Ms. Wildasin about getting back together the night before.

¶ 3. At one point during the party, defendant retrieved from the trunk of his car his nine-millimeter semi-automatic Ruger SR9 handgun; he tucked the gun in his waistband and kept it in his possession throughout the evening.

¶ 4. Several times at the party, defendant sought to speak with Ms. Wildasin, but she rebuffed his efforts. At one point, in an effort to get away from defendant, Ms. Wildasin went into a bedroom with Mr. Nunes and some other partygoers. Defendant tried to enter the bedroom, but Mr. Nunes stopped him and said, “Denise doesn't want you in the room.” Defendant got mad and tried to force his way into the room, and Mr. Nunes pushed him back out and slammed the door. Mr. Nunes and the others in the room laughed aloud after defendant was shut out of the room.

¶ 5. Shortly thereafter, defendant said he was not playing around and he cocked his gun while still standing outside of the door. Mr. Nunes opened the door, and defendant pulled a gun from his waist and pointed it in Mr. Nunes's face. As Mr. Nunes smacked the gun away, defendant fired the gun. Defendant then ran down a hallway six to eight feet, stopped, turned around, and fired two shots back in Mr. Nunes's direction before another partygoer tackled him. As that partygoer tackled him defendant fired another shot. Mr. Nunes began hitting defendant while he was on the floor, and defendant fired the gun again. After Mr. Nunes stopped hitting him and defendant ran out of the house, Mr. Nunes gave chase; outside, defendant pointed his weapon at Mr. Nunes again and pulled the trigger twice, though the gun did not fire.

¶ 6. The State charged defendant with attempted first-degree murder. Defendant did not deny that his gun fired while in his hand during the scuffle at the party, but testified that the gun fired because Mr. Nunes attacked him without provocation while defendant was holding the gun with his finger inside of the trigger guard. Defendant's intent was a central issue in the trial, and the jury ultimately convicted defendant of the lesser-included offense of attempted second-degree murder. Defendant appealed.

I.

¶ 7. First, we consider defendant's argument that contact between a juror and one of the State's witnesses during the trial violated defendant's right to a fair trial and impartial jury. The State's first witness was Jennifer Morrison, a lieutenant with the Burlington Police Department. Lt. Morrison was one of the first officers on the scene, arriving within a few minutes of hearing a call on the radio about the shots fired. She testified that she and another officer engaged in a protective sweep of the apartment where the party occurred in order to secure it for crime scene technicians and other first responders, and that she then served as coordinator of the investigation and supervisor of the activities of officers on the scene. Lt. Morrison did not collect any evidence inside the apartment and did not testify about any witness interviews. During her testimony, Lt. Morrison described her observations of the apartment when she arrived; she described visible bullet holes and shell casings around the apartment, blood stains, party remnants strewn about, and a magazine for a semi-automatic pistol on the kitchen table. The State called eleven more witnesses to testify before the end of trial.

¶ 8. After the close of evidence, and immediately before the jury was called in to deliver its verdict, the State informed the trial court that after Lt. Morrison gave her trial testimony, but before the jury began its deliberations, a juror and Lt. Morrison had engaged in a personal conversation in downtown Burlington. The court took the verdict, but indicated that it would give the defense an opportunity to do follow-up investigation on the issue.

¶ 9. Lt. Morrison and the juror both testified at a post-trial hearing regarding their acquaintance and the potentially improper contact. Lt. Morrison testified that she had recognized an acquaintance from living in the same community years ago and, not recognizing the woman as a juror in this case, had approached her on Church Street in Burlington to comment on the dumplings the juror was having for lunch. They exchanged a “high-five” on the street, and the juror commented on Lt. Morrison's work, indicating that she had not previously understood the scope of the Lieutenant's job and that she had a new-found appreciation for the work Lt. Morrison did. Lt. Morrison was in uniform at the time. The juror went on to indicate that she had not recognized Lt. Morrison's name on a witness list but that she recognized her when she walked into the courtroom to testify. Lt. Morrison testified that at that point she realized that she had just engaged in contact with a juror in this case, so she quickly ended the conversation and went on her way.

¶ 10. The juror's testimony was consistent with Lt. Morrison's. Near the end of the juror's testimony, defense counsel asked the juror whether her “new-found appreciation for Lt. Morrison's job [had influenced] the way [she] judged the testimony” and whether the juror's “new-found appreciation” made the juror “believe [Lt. Morrison] more.” The juror responded “no” to these questions.

¶ 11. The court credited the testimony of Lt. Morrison and the juror, and in its decision on defendant's motion for a new trial found that, while the contact between the two “may be considered an ‘irregularity’,” the “evidence demonstrated convincingly that the encounter between Lt. Morrison and [the juror] did not have the capacity to affect the jury's verdict.” Accordingly, the court denied defendant's motion for anew trial.¹

¶ 12. Defendant argues that the contact between the juror and Lt. Morrison violated his right to a fair trial. As we recently reiterated, “ ‘A defendant is entitled to a fair trial free of extraneous influences.’ ” State v. Abdi, 2012 VT 4, ¶ 12, 191 Vt. 162, 45 A.3d 29 (quoting State v. Gorbea, 169 Vt. 57, 60, 726 A.2d 68, 70 (1999)). This protection flows from the Sixth Amendment guarantee that “ ‘the evidence developed against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.’ ” Id. (quoting Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (per curiam)).

¶ 13. In order to show that an extraneous influence on a juror warrants a mistrial, a defendant must show “ ‘that an irregularity occurred’ ” and that it “ ‘had the capacity to affect the jury's result.’ ” Abdi, 2012 VT 4, ¶ 13, 191 Vt. 162, 45 A.3d 29 (quoting State v. McKeen, 165 Vt. 469, 472, 685 A.2d 1090, 1093 (1996)); State v. Lee, 2008 VT 128, ¶ 26, 185 Vt. 110, 967 A.2d 1161. Once a defendant sets forth sufficient evidence that an irregularity occurred and that it had the requisite capacity to affect the verdict, the State bears the burden of demonstrating that the irregularity did not actually prejudice the jurors against defendant, generally but not exclusively by demonstrating that the error was harmless beyond a reasonable doubt. Abdi, 2012 VT 4, ¶¶ 13–14, 191 Vt. ––––, 45 A.3d 29.

¶ 14. In assessing whether an irregularity had the capacity to affect the jury's result, courts should consider “the totality of the circumstances.” Id. ¶ 15. The relevant factors in each case will be different, as illustrated by the diverse array of juror-irregularity cases that have arisen. See, e.g., id. ¶¶ 8–10 (juror researched cultural background of defendant—a Somali–Bantu—and reported findings to fellow jurors); McKeen, 165 Vt. at 470–71, 685 A.2d at 1091–92 (juror discussed details of case with a friend and told fellow jurors street value of cocaine); Bellows Falls Vill. Corp. v. State Highway Bd., 123 Vt. 408, 409–10, 190 A.2d 695, 696 (1963) (one juror visited premises at issue and a number of jurors read an editorial with a very biased review of case).

¶ 15. Some of the factors that we have previously recognized as significant in a court's analysis include the relative importance of the extraneous influence to a material issue in the case, Abdi, 2012 VT 4, ¶ 15, 191 Vt. 162, 45 A.3d 29, whether the extraneous influence was inflammatory in nature, id., and “whether there was any attempt to exert influence upon the juror,” McKeen, 165 Vt. at 474, 685 A.2d at 1094.² “Because many of these criteria involve a consideration of facts from the trial itself and the trial court's first-hand observation of the jurors, we have held that ‘every reasonable...