State v. Ramsay, 83-359

• Citation: 146 Vt. 70,499 A.2d 15
• Decision Date: 14 June 1985
• Docket Number: No. 83-359,83-359
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. John RAMSAY.

Page 15

499 A.2d 15

146 Vt. 70

STATE of Vermont v. John RAMSAY.

No. 83-359.

Supreme Court of Vermont.

June 14, 1985.

Reargument Denied July 16, 1985.

Opinion Concurring in the Result Aug. 2, 1985.

John J. Easton, Jr., Atty. Gen., Elizabeth Grant Rome, Asst. Atty. Gen., and David Tartter, on brief, Montpelier, for plaintiff-appellee.

Mickenberg, Dunn, Sirotkin & Kupersmith, Burlington, for defendant-appellant.

Before ALLEN, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

Defendant was convicted at a trial by jury of two counts of simple assault in violation of 13 V.S.A. § 1023(a)(1). He raises three claims on appeal: (1) the United States and Vermont Constitutions bar the charges on double jeopardy grounds; (2) prosecutorial impropriety deprived him of his right to a fair trial; and (3) the sentencing court's consideration of allegations of assaults by defendant "over a period of time" violated the rule of State v. Williams, 137 Vt. 360, 364, 406 A.2d 375, 377 (1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 740, 62 L.Ed.2d 736 (1980). We affirm.

I.

Defendant was convicted of two counts of simple assault. The first count charged that defendant had assaulted his wife on January 29, 1982, by "jabbing her hands with a paring knife." The second count charged him with "kicking and slapping her body" on January 30, 1982.

Defendant claims that these charges are barred on double jeopardy grounds, because the court had previously dismissed charges that he had "caused bruises and abrasions by striking [his wife] with a spiked dog collar and a hammer" on January 31, 1982.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the states under the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), "protects against a second prosecution for the same offense after acquittal." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). However, defendant's claim fails this test because the instant case involved entirely different offenses which, although alleged to have been inflicted upon the same victim, involved different acts on different days. ¹

Defendant points out that the new charges against him were filed with an affidavit that was substantially identical to the one filed in the earlier case. He argues that the affidavit in the January 31 "dog collar" assault case, reciting the January 29 "paring knife" and January 30 "kicking and slapping" assaults, had forced him to prepare a defense in the first case against charges of all three assaults. He contends that rulings in three Vermont cases, State v. Phillips, 142 Vt. 283, 455 A.2d 325 (1982); State v. Burclaff, 138 Vt. 461, 418 A.2d 38 (1980); State v. Christman, 135 Vt. 59, 370 A.2d 624 (1977), required him to rely upon the entire affidavit in determining the scope of the charges against him. We disagree.

In two of the cases cited, Burclaff, supra, and Christman, supra, this Court observed that use of an affidavit to cure minimal defects in informations did not violate federal or state constitutional requirements that a defendant be informed of the nature of the charge with sufficient particularly to permit preparation of his defense. In State v. Phillips, supra, 142 Vt. at 289-90, 455 A.2d at 328-29, the information had merely recited statutory language without identifying which facts, in an affidavit containing a "morass" of factual assertions, comprised the violations; this ambiguity required defendant to "sort out" at her peril the acts that supported the alleged crimes. These cases do not support defendant's claim of double jeopardy. The information in defendant's earlier trial specified the January 31 "dog collar" assault. That information was neither ambiguous nor technically flawed, and it permitted defendant to determine exactly the specific charge against him--a charge that was distinct from both of the charges filed in the second case.

Defendant also argues for collateral estoppel of identical issues litigated and lost by the State in the first case. He claims that, because the court dismissed the first case after concluding that the identity of defendant as the assailant was not sufficiently shown, the State was estopped to identify defendant as the assailant in the second case. We again disagree.

For an issue of fact or law to be conclusive in a subsequent action, the same essential issue must have been litigated and determined in the first judgment. C. Wright, Federal Courts § 100A, at 682 (4th ed. 1983). Although both cases alleged assaults by defendant upon his wife, different dates and acts were involved, and there was no identity of issues suitable for preclusion.

II.

Defendant next argues that several incidents during the trial show that the prosecutor intentionally "salted" the trial with prejudicial material.

Two of the incidents about which defendant complains were not objected to below: one concerned an answer given by a witness describing her observations of certain injuries to defendant's wife; the other, remarks made by the prosecutor in closing argument, allegedly implying a continuing course of misconduct on the part of defendant. We will not review claims raised initially on appeal unless they amount to plain error. V.R.Cr.P. 52(b). We have frequently stated that plain error will be found only in a rare and extraordinary case where the error is an obvious one and so grave and serious as to strike at the very heart of a defendant's constitutional rights or adversely to affect the fair administration of justice. E.g., State v. Mecier, 145 Vt. 173, 178, 488 A.2d 737, 741 (1984); State v. Anderkin, 145 Vt. 240, 245, 487 A.2d 142, 144 (1984). The incidents referred to above were not of this caliber and do not rise to the level of plain error; thus we will not address them.

Defendant also objects to a line of questioning addressed by the prosecutor to a defense witness on cross-examination, suggesting that the witness and defendant shared a philosophy regarding the victim's duty to "obey." Defendant claims the questions implied a continuing course of misconduct by defendant. The State contends that these questions were designed to impeach the witness, who had denied seeing any attack by defendant, although the victim had testified that the witness had sat and watched.

At trial, defendant justified his objection only upon the ground that the questions on cross-examination exceeded the scope of direct examination. V.R.E. 611(b). The trial court, having been given no opportunity to rule upon defendant's "continuing-course-of-misconduct" objection, allowed the witness's denial that he shared defendant's "philosophy" to stand, and the testimony then turned to other issues. We find no error. Defendant's objection, properly resolved on one ground, does not preserve its claim on appeal on new grounds. State v. Bissonette, 145 Vt. 381, 392, 488 A.2d 1231, 1237-38 (1985); V.R.E. 103(a)(1).

Defendant also complains about a question from the prosecutor after defendant had testified that he had never seen his wife injured. On cross-examination the prosecutor asked if he had never seen her with a black eye. The court sustained defendant's objection to this question, refusing to "let the State in the back door with prior uncharged incidents." Defendant's attorney had previously discussed with the court the need to avoid reference to any other assaults by defendant, and the court had instructed both counsel to this effect.

At a post-trial hearing, the court evaluated defendant's motion for a new trial in light of State v. Goshea, 137 Vt. 69, 76, 398 A.2d 289, 294 (1979) (reversing conviction because prosecutor suppressed exculpatory evidence, then stressed its absence during closing argument), and State v. Lapham, 135 Vt. 393, 406-08, 377 A.2d 249, 257-58 (1977) (reversal based partly upon prosecutor's "studied purpose to arouse the prejudices of the jury"). The court concluded that insufficient evidence of prejudice had been shown and denied defendant's motion for new trial.

Defendant claims that the prosecutor's conduct, as a whole, deprived him of a fair trial. Our function on appeal is to determine whether the trial court abused its discretion in denying defendant's motion for a new trial. State v. Dezaine, 141 Vt. 335, 338, 449 A.2d 913, 914 (1982). Absent a showing that discretion was abused or its exercise unreasonably withheld, this Court will not reverse. State v. LeBeau, 144 Vt. 315, 319, 476 A.2d 128, 130 (1984).

Defendant asserts that prejudice was shown by the fact that he was convicted. He claims that, had only properly admitted evidence been considered by the jury in weighing the credibility of the witnesses, he would have been acquitted.

As this Court has stated on two prior occasions, Goshea, supra, 137 Vt. at 76, 398 A.2d at 294, and Lapham, supra, 135 Vt. at 406, 377 A.2d at 257, a high standard of conduct is expected of the prosecutor as the government's servant of the law. The trial court, in applying these authorities, declined to reverse. In our review of the record, we are not persuaded that the court erred in failing to find that the prosecutor had a "studied purpose" to arouse unfair prejudice. Nor are we persuaded that the court erred in failing to find the remarks so unfairly prejudicial as to require a new trial. Defendant has failed to carry his burden to demonstrate that the court abused its discretion.

III.

Defendant's final argument is that the court erred in refusing his request to expunge two statements from the presentence investigation report (hereafter, PSI), which was prepared by the Corrections Department pursuant to V.R.Cr.P. 32(c). Defendant claims admission of the statements violated the rule in State v. Williams, supra, 137 Vt. at 364, 406 A.2d at 377, prohibiting "the use of mere assertions of criminal activities in any way in aid of determining disposition."...