State v. Menize

• Docket Number: 22-AP-217
• Decision Date: 18 August 2023
• Citation: 308 A.3d 507
• Parties: STATE of Vermont v. James MENIZE
• Court: Vermont Supreme Court

308 A.3d 507

2023 VT 48

STATE of Vermont

v.James MENIZE

No. 22-AP-217

Supreme Court of Vermont.

June Term, 2023

August 18, 2023

On Appeal from Superior Court, Lamoille Unit, Criminal Division, Michael J. Harris, J.

Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

James A. Valente of Costello, Valente & Gentry, P.C., Brattleboro, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Grearson, Supr. J.(Ret.), Specially Assigned

CARROLL, J.

¶ 1.DefendantJames Menize appeals a judgment of conviction, based on a jury verdict, of one count of aggravated sexual assault of a victim under the age of thirteen, and one count of lewd and lascivious conduct with a child.We affirm.

I.Background

A. 2011 Trial and 2018 Post-Conviction-Relief Order

¶ 2.This case has a long and complex history.In 2011, defendant was convicted on two counts of aggravated sexual assault of a victim under the age of thirteen.That conviction resulted from conduct occurring on the night of February 26, 2010, during which defendant digitally penetrated his then nine-year-old daughter, J.M., and her then ten-year-old friend and neighbor, L.S.A three-Justice panel affirmed the conviction on speedy-trial grounds in 2012.State v. Menize, No. 2011-287, 2012 WL 5974994, at *4(Vt.Sept. 26, 2012)(unpub. mem.)[https://perma.cc/TTS7-FWKJ].

¶ 3.In 2018, the civil division granted defendant’s petition for post-conviction relief, entered judgment in his favor, and returned the case to the criminal division for a new trial.Following extensive motion practice, the case was tried to a jury in October 2021.Defendant represented himself in the relevant pretrial proceedings and at trial.

B.Pretrial

¶ 4.Defendant filed motions to suppress inculpatory statements he made to law enforcement in an interview conducted at his home shortly after the events of February 26.He contended the statements should be suppressed because they were disclosed after he had requested an attorney while in custody and were otherwise involuntary.In an April 2020 order on the suppression motion, the trial court found the following.On March 3, 2010, Lamoille County Detectives Claremont and Sawyer went to interview defendant at the family home.Defendant was alone.The detectives were dressed in plain clothes.Their weapons and badges were not visible.Defendant invited them inside.The detectives told defendant that he was not under arrest, he was under no obligation to talk to them, and he could end the interview at any time.The detectives asked if it was okay to record the interview.Defendant said that it was.The detectives noted an odor of intoxicants coming from defendant and that his words were slurred at times.At one point, defendant got up to get some water and offered the detectives a glass.At another point, defendant wanted to smoke a cigarette and allowed the detectives to follow him to his basement bedroom to do so.Toward the end of the interview, defendant said the following: "I’m not saying anything anymore.I want my lawyer."However, he continued to talk to the detectives.He explained that he consumed almost a fifth of Southern Comfort on the evening of February 26, 2010, and did not remember what happened afterward.He admitted to getting into bed with J.M. and L.S. that night and sleeping in J.M.’s bed on other occasions, but denied ever touching either girl inappropriately.A little over an hour into the interview, the detectives arrested defendant, but did not read defendantMiranda warnings.

¶ 5.The court partially granted the motion.It ruled that defendant was not in custody until the detectives arrested him, and all statements he made before the arrest therefore did not violate his right against self-incrimination under the federal and Vermont constitutions.The court concluded that the detectives were not required to stop questioning defendant after he requested a lawyer because Miranda does not apply to persons who are not in police custody.However, because the detectives continued questioning defendant following arrest but did not provide Miranda warnings, the inculpatory statements defendant made between arrest and the end of the approximately ninety-minute interview were suppressed.The court further concluded that statements defendant made prior to arrest were voluntary because the detectives did not inappropriately coerce defendant, that he was "coherent and aware," and that he never confessed to the allegations during the interview.

¶ 6.The State filed a motion in limine to admit prior bad acts under Vermont Rule of Evidence 404(b).Over objection, the court granted the motion on the record at a pretrial hearing, ruling that the State could elicit testimony from J.M. concerning prior uncharged sexual acts to provide context of a continuous, abusive, sexual relationship between defendant and J.M.The court required the State to focus on four separate sexual acts, each occurring on different days.

¶ 7.The day before trial, the State sought leave to amend Count 2 with respect to L.S., from a count of aggravated sexual assault, victim under thirteen, 13 V.S.A. § 3253(a)(8), to lewd and lascivious conduct with a child, 13 V.S.A. § 2602.At the time of trial, L.S. could not remember sufficient details concerning the charged conduct for the State to proceed on the aggravated sexual-assault count.After a colloquy with defendant explaining the proposed new charge, the trial court accepted the amended information without objection.

C. 2021 Trial

¶ 8.The following was adduced by testimonial evidence at trial.In 2010, J.M. and her three siblings lived with defendant and defendant’s then wife—the children’s mother—in Johnson, Vermont.Defendant slept alone downstairs as a matter of course.On the night of February 26, 2010, J.M.’s friend and next-door neighbor, L.S., spent the night with J.M. at the family home, which she had done before.At some point that evening, J.M. and L.S. went to bed in J.M.’s brother’s bedroom.J.M.’s brother was not in the bedroom.J.M. and L.S. fell asleep together in the top bunk of a bunkbed while watching a movie.J.M. woke up with defendant laying between her and L.S. J.M. testified that defendant’s "arm was under [L.S.’s] blanket," which to J.M. meant that he was "touching [L.S.’s] vagina" because "it had happened before."L.S. testified that defendant’s hand was under her pajamas, but not under her underwear, and was moving in a circular motion on her vagina.

¶ 9. J.M. left that bedroom and eventually went to her bedroom, which J.M. shared with her sister.J.M.’s sister was not at home that night.Their bedroom had two twin beds, one for each sister.J.M. got into her sister’s bed.Soon thereafter, L.S. came into J.M.’s bedroom and got into J.M.’s bed.Defendant followed L.S. and got into bed with her.J.M. heard "whispering, and it seemed like [L.S.] was straggling and very upset."L.S. testified that, at this point, defendant put his hand under her underwear and made a "rubbing motion on [her] vagina."Defendant told her that she was "going to be a beautiful wife to him and have his children," and that if she told anybody about what had happened that night he would "kill [her] family."L.S. then got into bed with J.M. Defendant again followed, and positioned himself between J.M. and L.S.At this point, defendant put his hand under J.M.’s underwear and digitally penetrated her vagina.Defendant then left after kissing both girls on the forehead.In the morning, J.M. told her mother what had happened.Mother reported the incident to Department for Children and Families(DCF), which launched an investigation culminating in the present charges.

¶ 10.J.M. further testified that on another occasion defendant made her watch pornography with him and forced her to perform oral sex on him while doing so.She testified that he had previously digitally penetrated her vagina, and forced J.M. to put her hand on his penis on a separate occasion.He threatened to kill J.M.’s mother if J.M. ever said anything about these events.

¶ 11.Defendant did not object to any of the above testimony.On cross-examination, defendant asked J.M. the following question: "isn’t it also true that according to you … that I sexually abused you every single day for years."J.M. responded, "yes."

¶ 12.Defendant called Dr. Mantell as an expert witness.The questioning focused on contradictions and inconsistencies between J.M.’s interview with Detective Claremont on March 3, 2010, when she was nine years old, and J.M.’s interview with Detective Metayer on September 25, 2019, when she was nineteen.Each interview focused on what had happened on February 26 and the nature of J.M.’s relationship with defendant.Dr. Mantell testified that there were inconsistencies between the interviews.

¶ 13.The State called Dr. Halikias as an expert witness.It too asked Dr. Halikias about inconsistencies between the two interviews.Dr. Halikias stated, "I, frankly, was very surprised that [Dr. Mantell] falsely testified to a very important part of [the 2010 interview,]" and "it is clear in her interview at [nine] that she’s talking about sexual touch, skin to skin.So[,] this is false information from Dr. Mantell in the report and during his testimony."Defendant objected to this testimony on grounds that it inappropriately provided an opinion about another witness’s credibility.The court overruled the objection, but informed defendant that he could cross-examine Dr. Halikias to undermine his testimony, which defendant later attempted to do.

¶ 14.At the charge conference, the court explained to defendant that the proposed bad-act jury instruction was based on case law and model jury instructions and was drafted to instruct the jurors not to consider the evidence for the fact that "the February 26th matters occurred," but only as context.When asked if he objected, defendant indicated that he did not.At...