State v. O'Neill

• Decision Date: 14 June 1996
• Docket Number: 95-239,Nos. 95-217,s. 95-217
• Citation: 682 A.2d 943,165 Vt. 270
• Parties: STATE of Vermont v. Michael O'NEILL. STATE of Vermont v. Timothy TRONO.
• Court: Vermont Supreme Court

Page 943

682 A.2d 943

165 Vt. 270

STATE of Vermont v. Michael O'NEILL.

STATE of Vermont v. Timothy TRONO.

Nos. 95-217, 95-239.

Supreme Court of Vermont.

June 14, 1996.

Motion for Reargument in Docket No. 95-239

Denied July 3, 1996.

Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for plaintiff-appellee.

Oreste V. Valsangiacomo, Jr., of Valsangiacomo, Detora & McQuesten, P.C., Barre, for defendant-appellant O'Neill.

David C. Sleigh of Sleigh & Williams, St. Johnsbury, for defendant-appellant Trono.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

These consolidated interlocutory appeals arise from the Washington District Court's denial of defendants' motions to dismiss charges of obstruction of justice under 13 V.S.A. § 3015 ("[w]hoever ... corruptly ... obstructs or impedes, or endeavors to obstruct or impede the due administration of justice" commits a crime). Defendants, relying on the interpretation of a federal statute similar to Vermont's, claim that the existence of a pending judicial proceeding is an element of the crime. The trial court ruled that a pending judicial proceeding is not a required element under Vermont's statute. We affirm.

I.

These appeals arise out of the same incident. In early 1994, the Vermont State Police began an investigation of alleged misconduct by members of the Northfield Police Department. On Labor Day weekend of 1993, Officer Ken Falcone had allegedly fired his pistol into a store owned by William Oren, an outspoken critic of the department.

Officer Trono

Defendant Timothy Trono, who knew that Falcone was responsible for the shooting, responded with Officer Donald McCormick to Oren's report of vandalism. McCormick recovered two shell casings at the scene, which he gave to Trono. Trono, in turn, submitted two shell casings to the Vermont State Police Crime Laboratory. He later told Officer Mark Heimall that he had substituted a different pair of casings for the ones found at the scene. Subsequently, laboratory personnel discovered that although a bullet jacket recovered from the scene matched a pistol taken from Falcone's home, the casings Trono submitted did not, indicating that they were not the ones retrieved from the scene.

Trono was charged with obstruction of justice. He filed a motion to dismiss the charge on the ground that the statute does not apply to conduct that takes place before a judicial proceeding is initiated. The motion was denied. Subsequently Trono pled guilty to obstruction of justice, but retained the right to appeal the denial of his motion to dismiss.

Police Chief O'Neill

During the course of the misconduct investigation, Officer Mark Heimall spoke with the chief of the Northfield Police, defendant Michael O'Neill, while wearing an electronic listening device. Heimall told O'Neill that he knew Falcone and Trono were involved in the shooting of Oren's store and asked what he should say if questioned about it. O'Neill replied, "The way I would approach it at this point in time is I don't know anything about it."

Heimall also spoke with Falcone. Falcone told him: "[T]hey need the barrel [the casings at the scene] w[ere] fired from.... Mike [O'Neill] told me to dump, like go to Jersey and toss [my gun barrel] in some river somewhere on my way to Jersey." Falcone also told the Vermont State Police that O'Neill, several times, had told him to get rid of his gun barrel. O'Neill also supplied Trono with a gun, directing him to fire it, collect two casings, and substitute them for the ones recovered from Oren's store. O'Neill was charged with three counts of obstruction of justice. He moved for their dismissal on the same ground--that no judicial proceedings were pending at the time the alleged offenses occurred. The court denied the motion, and O'Neill filed an interlocutory appeal which was consolidated with Trono's appeal.

II.

The sole issue on appeal is whether the existence of a pending judicial proceeding is an element of the crime of obstruction of justice. The statute, 13 V.S.A. § 3015, reads as follows:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, intimidates or impedes any witness, grand or petit juror, or officer in or of any court of the state of Vermont, or causes bodily injury to such person or intentionally damages the property of such person on account of such person's attendance at, deliberation at, or performance of his or her official duties in connection with a matter already heard, presently being heard, or to be heard before any court of the state of Vermont, or corruptly or by threats or force or by any threatening letter or communication, obstructs or impedes, or endeavors to obstruct or impede the due administration of justice, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

Defendants were charged, under the last or so-called "omnibus clause" of the provision, with corruptly endeavoring to obstruct or impede the due administration of justice. The Vermont statute, which was adopted in 1978, is based on a federal statute, 18 U.S.C. § 1503 (1976), which read as follows:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate or impede any witness, in any court of the United States or before any United States or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, magistrate, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years or both.

See also State v. McHugh, 161 Vt. 574, 576, 635 A.2d 1200, 1202 (1993) (mem.) (omnibus obstruction of justice provision in federal statute closely parallels Vermont's). The federal statute was in turn derived from an earlier federal statute dating back to the nineteenth century:

Every person who corruptly, or by threats or force, endeavors to influence, intimidate, or impede any witness, or officer in any court of the United States, in the discharge of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months, or both.

Revised Stat. § 5399 (1878) (repealed 1909) (codifying Act of March 2, 1831 ("An Act declaratory of the law concerning contempts of court")). In its original version the statute prohibited attempts to influence or intimidate witnesses and court officers "in any court of the United States ... or to obstruct or impede the due administration of justice therein." Id. (emphasis added).

In 1893 the United States Supreme Court interpreted § 5399 by holding that there could be no violation of it without:

knowledge or notice or information of the pendency of proceedings in the United States court, or the progress of the administration of justice therein.

...

The obstruction of the due administration of justice in any court of the United States ... is indeed made criminal, but such obstruction can only arise when justice is being administered.

Pettibone v. United States, 148 U.S. 197, 205, 207, 13 S.Ct. 542, 546, 37 L.Ed. 419 (1893) (emphasis added). This interpretation was arguably reasonable in light of the express language of the statute, which referred only to the obstruction of the due administration of justice within the courts of the United States.

In the face of numerous amendments to the federal statute, however, including the deletion from the omnibus clause of any reference to courts or court proceedings, see 18 U.S.C. § 1503 (1948) (word "therein" struck from omnibus clause; no direct reference to court or court proceedings remains in clause), a majority of federal courts have persisted in holding that a violation cannot occur absent a pending judicial proceeding. See 2 E. Devitt, et al., Federal Jury Practice and Instructions § 41.03, at 541-51 (4th ed. 1990) (discussing cases); Annotation, Construction and Application of 18 U.S.C.S. § 1503, 20 A.L.R. Fed. 731, 757-61 (1974) (same).

Only one court, the United States District Court for the Western District of Pennsylvania, has directly addressed the question of whether the removal of the word "therein" was intended to broaden the scope of the omnibus clause so that it would apply before a judicial proceeding is initiated. The court concluded, without analysis, that the phrase "due administration of justice" "is qualified and limited by the enumeration of specific judicial functions concerned with the 'administration' of justice," and that an investigating body, as opposed to a judicial arm of government, does not administer justice within the meaning of the statute. United States v. Scoratow, 137 F.Supp. 620, 621-22 (W.D.Pa.1956). The Scoratow court did not address why the word "therein" was included in the provision in the first place or why...