State v. Rideout

• Decision Date: 20 July 2007
• Docket Number: No. 2005-310.,2005-310.
• Citation: 933 A.2d 706,2007 VT 59
• Parties: STATE of Vermont v. Robert J. RIDEOUT.
• Court: Vermont Supreme Court

933 A.2d 706

2007 VT 59

STATE of Vermont v. Robert J. RIDEOUT.

No. 2005-310.

Supreme Court of Vermont.

July 20, 2007.

Robert Simpson, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Bane, for Defendant-Appellant.

Thomas D. Anderson, United States Attorney, Carol L. Shea, Chief, Civil Division, and Heather E. Ross, Assistant U.S. Attorney, Burlington, for Amicus Curiae United States of America.

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

¶ 1. REIBER, C.J.

Defendant Robert Rideout appeals from his convictions for lewd and lascivious conduct with a child and furnishing drugs to a child, and from the sentences imposed thereon. Defendant argues that: (1) the trial court erred in failing to enforce a subpoena against a federal officer, (2) a supplemental jury instruction confused the jury and shifted the burden of proof, and (3) the trial court improperly relied on adult convictions obtained when defendant was a minor in finding that he was a habitual criminal. We affirm.

¶ 2. The record reveals the following facts. Defendant was born on May 5, 1963. In 1979, when he was sixteen, defendant was convicted of four felonies: two counts of breaking and entering, 13 V.S.A. § 1202; one count of receiving stolen property, 13 V.S.A. § 2561; and one count of armed robbery, 13 V.S.A. § 608(b). All were adult convictions, although defendant was a minor at the time. In 1986, when he was twenty-three, defendant was convicted of the felony of escape, in violation of 13 V.S.A. § 1501(a)(1), and in 1992 he was convicted of possession of a firearm by a felon, 18 U.S.C. §§ 922(g)(1) & 924(e)(1)(2), also a felony. Defendant was imprisoned on this last conviction until the fall of 2003, soon after which the events underlying his current convictions ensued. In the summer of 2004, defendant was charged with two counts of lewd and lascivious conduct with a child, 13 V.S.A. § 2602, and one count of dispensing a regulated drug to a minor, 18 V.S.A. § 4237(a). The three 2004 offenses were all charged under 13 V.S.A. § 11, Vermont's habitual-criminal statute, which provides for enhanced sentences—up to life imprisonment—upon conviction of a fourth or subsequent felony.

¶ 3. The 2004 charges arose from events that occurred when defendant's daughter, then age fifteen, moved in with him after his release from prison. The first lewd-and-lascivious-conduct charge stemmed from an incident, between Thanksgiving and Christmas of 2003, in which daughter awoke to find defendant lying next to her touching her vagina through her underwear. The second lewd-and-lascivious-conduct charge arose from an incident, in April 2004, when daughter awoke to find defendant holding her hand on his penis. The charge of dispensing a regulated drug to a minor was based on defendant's repeated provision of marijuana to his daughter during late 2003 and early 2004. During this period, defendant was on unsupervised release, with conditions, stemming from his 1992 felony firearm-possession conviction. His release conditions required that he submit to regular drug tests, and defendant was never found to be in violation of those conditions, but the record is silent as to whether he failed any drug test.¹

¶ 4. On April 25, 2005, the night before trial was to begin, defendant served his federal probation officer with a subpoena to appear at trial on April 27. The following day, the United States Attorney's Office moved to quash the subpoena, on the ground that a federal court rule required service fifteen days in advance of the requested appearance, a specific description of the testimony sought, and a recitation of the reasons the information sought was unavailable from other sources. After much back-and-forth, the trial court neither granted the motion to quash nor attempted to enforce the subpoena.

¶ 5. At trial, defendant's daughter testified that she had lived with her aunt while defendant was serving time on the firearm-possession conviction. Defendant was released from prison and returned to Vermont in the fall of 2003, and daughter moved in with defendant in November 2003, after she had a series of arguments with her aunt. For the first few weeks, defendant and daughter lived in a house with friends. Defendant slept on the couch at first, but later began sleeping in the same bed as daughter. One night, daughter testified, she woke up to find defendant kneeling next to the bed, massaging her vagina with his hand. On two or three other nights, daughter testified, she awoke to find defendant pressed up against her with his hand on his penis.

¶ 6. Defendant and daughter ultimately left the friends' house and lived for a time in a nearby motel. While there, defendant sometimes slept in the same bed with daughter, who testified that she woke up more than once to find defendant "right on the side of [her]" masturbating. When defendant and daughter moved out of the motel, they lived with another family friend for about two months before moving into a one-bedroom apartment of their own in Burlington. Soon after they moved into the apartment, according to daughter's testimony, she awoke one night to find defendant sitting next to her in her bed, holding her hand on his penis. Daughter testified that she moved back in with her aunt the following day, in April 2004.

¶ 7. Soon after daughter moved back in with her aunt, both provided sworn statements to a detective at the Chittenden Unit for Special Investigations (CUSI) who testified at trial. Defendant's mother also provided a sworn statement to CUSI. The defense and the prosecution were both properly provided with copies of the sworn statements. Defendant's mother appeared as a defense witness at trial and testified that she had observed defendant and daughter to have a "normal" parent-child relationship, and that she could not recall a conversation with defendant in which he admitted to furnishing marijuana to daughter and to "treating [daughter] like a wife" The prosecution used the CUSI statement to impeach the veracity of this testimony. Daughter testified for the prosecution at trial. On cross-examination, the defense did not refer to any inconsistencies between daughter's CUSI statement and her testimony at trial.

¶ 8. After the close of the evidence, the jury was charged without objection and retired to deliberate. During the course of its deliberations, the jury questioned the court regarding the lewd-and-lascivious conduct charge, requested playback and transcripts of certain testimony, and finally asked the following questions:

Is there any way we can have information confirming that [daughter's] Court testimony is consistent with the statement made to CUSI?

Did the Defense find any inconsistencies between [daughter's] Court testimony and the statements made to CUSI? If yes, can we know what?

Following a conference with counsel, detailed more fully below, the court issued a supplemental instruction responding to the questions. The jury subsequently returned guilty verdicts on the two lewd-and-lascivious-conduct charges.

¶ 9. Defendant was ultimately convicted of the two counts of lewd and lascivious conduct with a child and a single count of dispensing a regulated drug to a minor, and was sentenced under the habitual-criminal statute, 13 V.S.A. § 11, to two concurrent sentences of twenty to fifty years. This appeal followed.

I. The Subpoena

¶ 10. Defendant first asserts that the trial court violated his right, under the Sixth Amendment to the United States Constitution and Chapter I, Article 10 of the Vermont Constitution, to call witnesses on his own behalf when it refused to enforce his subpoena of the federal probation officer. Defendant averred that the officer would testify that defendant had not been found in violation of probation during a period when a condition of his probation was that he submit to regular drug tests. This testimony, however, was peripherally relevant at best, particularly in light of defendant's admission at trial that he had regularly smoked marijuana during the period in question and had at times provided it to his daughter, and the testimony of an acquaintance to whom defendant had bragged that he knew how to beat the drug tests. Further, the State averred that police officers had found, among defendant's other possessions, a device designed to dispense "clean" urine through a tube to beat the tests, which evidence would have been subject to admission if the officer had testified. In the face of these facts, the officer's testimony would have served no exculpatory purpose, as defendant's counsel expressly recognized, even had it been deemed relevant. At best, it might have supported a conclusion that defendant violated the conditions of his probation, but was not caught.

¶ 11. Further, whether defendant violated his federal probation is a matter of public record, and the information sought from the officer was therefore readily available from other sources. Finally, defendant's subpoena seeking the probation officer's appearance was not timely filed under the federal court's rules. See Testimony of Judiciary Personnel and Production of Judiciary Records in Legal Proceedings, adopted by the Judicial Conference of the United States in March 2003, available at http://www.uscourts.gov/courts/regulations.htm.

¶ 12. Compulsory process is mandated, under the Sixth Amendment and Article 10, only where "the witness[] to be called will offer testimony which is competent, relevant and material to the defense." State v. Kennison, 149 Vt. 643, 649, 546 A.2d 190, 194 (1987); State v. Roberts, 154 Vt. 59, 66 n. 3, 574 A.2d 1248, 1250 n. 3 (1990) ("The protection provided the accused by the . . . confrontation clause contained in Chapter I, Article 10 is no greater in scope than that afforded by the Sixth Amendment to the federal constitution...