State v. Morse

• Decision Date: 30 August 2019
• Docket Number: No. 18-263,18-263
• Citation: 219 A.3d 1309
• Parties: STATE of Vermont v. Ellie May MORSE
• Court: Vermont Supreme Court

219 A.3d 1309

STATE of Vermont

v.Ellie May MORSE

No. 18-263

Supreme Court of Vermont.

June Term, 2019

August 30, 2019

Reargument Denied October 18, 2019

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

EATON, J.

¶ 1. Defendant was charged with simple assault on a law enforcement officer, disorderly conduct, and resisting arrest as a result of her encounter with law enforcement officers outside a motel in Bennington in August 2014. Following a trial by jury, defendant was convicted of disorderly conduct and resisting arrest and acquitted of simple assault. After the verdict, defendant challenged her convictions through motions for a new trial and judgment of acquittal, alleging the evidence was insufficient to support the convictions. Defendant appeals from the denial of those motions. We affirm.

¶ 2. The facts supporting the verdicts are as follows.¹ Two of defendant's teenage sons were staying at the Southgate Motel, which was adjacent to the Fife and Drum Motel where defendant was staying. One of the sons got in a dispute with the manager of the Southgate, who asked the two boys to leave and then called the Bennington police. Four Bennington police officers responded, arriving at about 9 p.m. The officers were met with yelling directed at them by the boys. The yelling continued as the boys made their way to the Fife and Drum. The officers followed the boys to the motel to discuss their behavior. As the first two officers approached the Fife and Drum, defendant, who had been outside smoking a cigarette, stepped in front of them to block them from going into the motel. The first two officers were able to get past her. However, as the second two officers approached, defendant blocked them from getting past. She was swearing and yelling at them in a loud and boisterous manner, telling them that they had no right to be there and that they had to leave, and that they could not talk with her sons.

¶ 3. Defendant then began moving toward the first pair of officers, who had their backs turned to her. As one of the second two officers tried to move past her, she raised her arm, and the officer reacted by grabbing her arm, spinning her around, and attempting to handcuff her. Defendant struggled and stiffened her arms, and her cigarette came in contact with the officer's left forearm. Defendant was then placed under arrest.

¶ 4. A jury trial was held on the three charges on March 20, 2018. The judge required the State to elect whether the State was asserting the disorderly conduct charge based upon fighting, tumultuous, or threatening behavior. The State elected to charge defendant with disorderly conduct by engaging in tumultuous behavior. Prior to charging the jury, the court held a jury-charge conference. The court indicated that it intended to charge the jury that the State was alleging defendant engaged in tumultuous behavior "by her statements and words." Three times in the charge conference the State indicated concern that actions, not just words, were required to sustain a conviction for disorderly conduct based upon engaging in tumultuous behavior. In one exchange about the court's proposed disorderly conduct charge, the State said:

"By engaging in tumultuous behavior by her statements and words." Well, I'm concerned about that, that it's limited to words, Judge, because the obvious defense to that is she's there expressing herself and exercising her constitutional right against police with involvement with her sons and so on. And initially, again, when we had—before we started the trial, you had indicated your understanding would be that she got in front of the officers and threw her arms up. See, I'm also concerned, too, by limiting "engaged in tumultuous behavior by her statements and words," that down there in the third—moving down the third essential element is that she engaged in tumultuous behavior. "Tumultuous behavior" means violent outburst or chaotic activity. That seemed to suggest more than words. And so I think by the testimony, Judge, that ... it's both statements and actions. It's words and actions by Ms. Morse that were the tumultuous behavior.

Later, the State added:

So again, I think there's just more than just words because—well, either that, or then instruct the defense that they're not—either they can't somehow argue that they have a—that she's got a constitutional right to voice her concerns and her free speech, and that her words, in this case, were protected by the First Amendment.

¶ 5. When defense counsel spoke at the charge conference, she endorsed the proposed "statements and words" instruction and disavowed any concern that more than words were required for an action to be tumultuous. Defense counsel stated:

I think that the instruction is fine the way that it is, Your Honor. I did argue in my opening statement that it is not illegal to assert your rights to the police. You can tell the police to leave. You can tell the police that they don't have a right to be there. And I would probably reiterate that in my closing. I'm not requesting that Your Honor include a protected speech instruction in the disorderly conduct, because the officers' testimony was also that she used obscenities and other things like that when she was speaking. So I think that it's up to the jury to decide whether or not her words were enough to rise to the level of a disorderly conduct.

(Emphasis added.)

¶ 6. The trial court gave the instruction, which defense counsel had endorsed, that "statements and words" were sufficient to constitute tumultuous behavior for purposes of disorderly conduct. On appeal, defendant now asserts, for the first time and directly contrary to her position below, that defendant's conviction for disorderly conduct must be reversed because it was based upon speech alone. Further, defendant argues that since speech alone is insufficient to constitute tumultuous behavior, there was no probable cause for the disorderly conduct charge. Therefore, the police had no basis to arrest her and the subsequent resisting-arrest charge was the fruit of this illegal arrest.

¶ 7. We assume without deciding that defendant's reading of the disorderly conduct statute on appeal is correct. Nonetheless, we hold that defendant has waived her challenge to her conviction under this statute by agreeing during the trial court proceedings that the proposed "statements and words" charge was an accurate statement of the law, and thereby agreeing that words alone are sufficient to constitute disorderly conduct. Under the "invited error doctrine," a "branch of the doctrine of waiver," a party cannot "induc[e] an erroneous ruling and later seek[ ] to profit from the legal consequences of having the ruling set aside." State v. Longe, 170 Vt. 35, 40 n.*, 743 A.2d 569, 572 n.* (1999) (quotation omitted). There is no standard of review in such cases; the party who invites the error waives or "intentional[ly] relinquish[es]" their right to challenge it on appeal. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation omitted); see also State v. J.S., 2018 VT 49, ¶ 21, 207 Vt. 379, 189 A.3d 552 (recognizing invited error where defendant challenged on appeal standard that trial court used to decide whether to revoke his youthful-offender status, despite defense counsel's having conceded at trial that court would be on "strong ground" to use this standard (quotation omitted)); Fancher v. Benson, 154 Vt. 583, 587-88, 580 A.2d 51, 53-54 (1990) (holding that defendants waived their claim that trial court erred in failing to instruct jury that plaintiff's agent was in fact plaintiff's agent by stating at charge conference, "I think it's up to the jury to decide whether [she] is an agent or not." (quotation omitted)). The invited error doctrine prevents a party from essentially having veto power over the proceedings by eliminating their right to challenge an invited error and request a new trial if the original trial does not result in a ruling favorable to them. See State v. Massey, 169 Vt. 180, 185, 730 A.2d 623, 627 (1999) (citing Rash v. Waterhouse, 124 Vt. 476, 477-78, 207 A.2d 130, 132 (1965) ); see also State v. Smith, 2010 VT 15, ¶ 8 n.4, 187 Vt. 600, 992 A.2d 310 (mem.) (citing United States v. Cruz–Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009), to note distinction between "invited error, which bars review where a party deliberately considers an issue and makes an intentional decision to forego it, and plain error, which is subject to review when a party through neglect fails to make a proper objection" (quotations and alteration omitted)).

¶ 8. In this case, defense counsel agreed unequivocally to a jury instruction that charged the jury with determining whether defendant engaged in "tumultuous behavior by her statements and words" alone. Despite clear concerns raised by the State, defense counsel stated, "I think that the instruction is fine the way that it is, Your Honor," and advocated that the court should allow "the jury to decide whether or not [defendant's] words were enough to rise to the level of a disorderly conduct." There is no hint that she held any reservations about the instruction accurately stating the law.

¶ 9. Yet, on appeal, defendant claims error in the same reading of the disorderly conduct statute that defense counsel advocated for below. Defendant now argues that her conviction cannot stand because it "was based entirely on [her] ‘statements and words to the police at the Fife and Drum Motel,’ " while the disorderly conduct statute under which she was charged criminalizes behavior, not speech. This is exactly the type of practice the invited error doctrine aims to prevent. Defendant may not inject error into the proceedings by advocating for one type of jury instruction...