State v. Rolls

• Decision Date: 28 February 2020
• Docket Number: No. 18-274,18-274
• Citation: 229 A.3d 695
• Parties: STATE of Vermont v. Brandon ROLLS
• Court: Vermont Supreme Court

229 A.3d 695

STATE of Vermont

v.Brandon ROLLS

No. 18-274

Supreme Court of Vermont.

February 28, 2020

Ian C. Sullivan, Rutland County Chief Deputy State's Attorney, Rutland, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Delaney Law Group, Barre, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.), Specially Assigned

REIBER, C.J.

¶ 1. Following a jury trial, defendant Brandon Rolls was acquitted of the charged offense of aggravated sexual assault of a minor but convicted of the lesser-included offense of sexual assault. On appeal, he argues that the trial court erred in its jury instructions, mandating reversal of his conviction and sentence. We affirm.

I. Facts

¶ 2. The State charged defendant with aggravated sexual assault of a minor. Following a four-day trial, the State requested a jury instruction on the lesser-included offense of sexual assault. Defense counsel objected, arguing that defendant had the right to waive a lesser-included-offense instruction. The trial court overruled the objection, explaining that it must provide a lesser-included-offense instruction upon either party's request if the evidence supports the instruction, as it did in this case. Defense counsel did not object to the language the court proposed for the lesser-included-offense instruction. The court subsequently instructed the jury as follows:

If you decide that the State has not proven each of the essential elements of aggravated sexual assault, then you must consider whether [defendant] is guilty of the offense of sexual assault. Or if you are unable to agree upon a verdict considering the charge of aggravated sexual assault after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the offense of sexual assault.

¶ 3. After deliberating from around 5:00 p.m. to 7:00 p.m., the jury sent a note to the court stating, "At this time we cannot give you a verdict." The court responded in writing by asking the jury to "clarify the intent of the note." The court further stated in its response:

[I]n the event that the note is intended to indicate an inability to reach a unanimous verdict, the court would ask that you discuss whether you believe that further deliberations may result in a unanimous verdict ... as well as discuss whether you believe that ending deliberations at this time and returning to deliberate in the morning may result in a unanimous verdict. If you do not believe that further deliberations will assist you in arriving at a unanimous verdict, then you should report this to the court.

Neither party objected to this response.

¶ 4. Around ten minutes later, the jury sent a note to the court stating, "We cannot come to a unanimous verdict and we don't feel we will even with further deliberations." Defense counsel initially argued that the court should not respond with further instruction to the jury but instead should have the jury brought out to announce they could not reach a verdict and declare a mistrial. However, after further discussion, the court proposed a supplemental instruction to which neither party objected. The court accordingly had the jury return to the courtroom and charged them as follows:

Your verdict must be unanimous. It is either guilty or not guilty by twelve people. If in your good consciences, you cannot reach a unanimous verdict then you report to the court that you cannot do so and you become known as a hung jury. In other words, you are saying that you cannot reach a unanimous verdict one way or the other.

As I told you before, each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, you shouldn't hesitate to reexamine your own views and change your opinion if you are convinced that it is wrong, but do not surrender your honest opinion as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the purpose of returning a verdict.

If you can reach a unanimous verdict, do so. But do not give up your individual judgment as judges of the facts in this case. Take as much time as you need to discuss the case and the court is going to send you back to deliberate further.

Again, if you would like to suspend deliberations at this time and reconvene ... tomorrow morning for deliberations to resume, we will proceed in that manner. Should you wish to continue further into the evening with deliberations, we can also order food for you if you so request.

But at this time, the court would ask that you return to deliberate for an additional period of time and your foreperson will notify us in accordance with the court's instruction as to where things stand.

The jury then reconvened for around five minutes, after which they sent the court a note stating that they wanted to leave at that time and return for further deliberations in the morning. The next morning, after deliberating for around one hour, the jury declared defendant not guilty of aggravated sexual assault and guilty of the lesser-included charge of sexual assault.

¶ 5. Defendant filed a motion for a new trial pursuant to Vermont Rule of Criminal Procedure 33, which the trial court denied. Defendant was sentenced to serve ten to twenty years in prison. He now appeals his conviction and sentence.

¶ 6. Defendant makes two arguments on appeal: (1) the trial court's instruction as to when the jury could consider the lesser-included offense, called the "transition" instruction, was in error; and (2) under the circumstances of the case, the court impermissibly coerced the jury to return a verdict when it provided a supplemental instruction that the jury continue deliberations.

II. Lesser-Included-Offense Instruction

¶ 7. We first address defendant's challenge to the trial court's transition instruction. "A defendant is entitled to jury instructions that are full, fair, and correct on all issues, theories, and claims presented by the evidence." State v. Swift, 2004 VT 8A, ¶ 12, 176 Vt. 299, 844 A.2d 802 (quotation omitted). "In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole were misleading or inadequate to aid the jury's deliberations." State v. Trombley, 174 Vt. 459, 460, 807 A.2d 400, 403 (2002) (mem.) (quotation omitted). Defendant did not object to the language of the transition instruction in the trial court, so we review for plain error. See State v. Yoh, 2006 VT 49A, ¶¶ 36, 39, 180 Vt. 317, 910 A.2d 853. "Error will be assigned only when the entire charge undermines our confidence in the verdict, and only in extraordinary cases will we find plain error." State v. Lambert, 2003 VT 28, ¶ 14, 175 Vt. 275, 830 A.2d 9 (quotation omitted).

¶ 8. Defendant argues that the trial court erred in providing the jury with both a "hard" and a "soft" transition instruction and that the court's error caused him prejudice. A "hard" transition instruction directs jurors to consider a lesser-included offense only if they agree that the defendant was not guilty of the charged offense; this is also called a "more rigorous" transition instruction or an "acquittal first" instruction. See State v. Powell, 158 Vt. 280, 283, 608 A.2d 45, 46-47 (1992) (describing "more rigorous" charge as one that instructs jury "to move on to the lesser offenses only if it had a reasonable doubt as to the elements of the greater"); Commonwealth v. Roth, 437 Mass. 777, 776 N.E.2d 437, 449 n.14 (2002) (describing instruction that "prohibit[s] the jury from even considering any lesser included offense unless and until they have unanimously decided that the defendant is not guilty of the offense as charged" as "hard transition instruction" (emphasis and quotation marks omitted)); State v. Finneman, 2018 ND 203, ¶ 11, 916 N.W.2d 619 (describing instruction that "requires an acquittal of the offense charged before consideration of lesser-included offenses" as "acquittal first instruction" (quotation marks and quotation omitted)). A "soft" transition instruction informs the jury that they may consider the lesser-included offense if they cannot agree on the greater offense. People v. LePage, 397 P.3d 1074, 1077 (Colo. App. 2011) (explaining that "soft transition" does not require jury to "unanimously acquit the defendant of the greater offense before considering the lesser included offenses" (quotation marks omitted)). A soft transition instruction may also be called a "less rigorous," "reasonable efforts," or "unable to agree" instruction. See Powell, 158 Vt. at 283, 608 A.2d at 47 (describing "less rigorous" charge as one that "allows the jury to move on to lesser-included offenses if it is unable after all reasonable efforts to reach verdict on the greater offense" (quotation omitted)); Green v. State, 119 Nev. 542, 80 P.3d 93, 95 & n.12 (2003) (per curiam) (describing instruction that "jurors ... may consider a lesser-included offense if they have reasonably tried, but failed, to reach a verdict on the primary charge" as "unable to agree instruction" or "reasonable efforts instruction" (quotation marks and quotation omitted)).

¶ 9. We conclude the trial court did not err in providing both the more rigorous and less rigorous instructions, rather than one or the other, in the absence of defendant's request.¹ We have previously held that either transition instruction is correct as a matter of law. Powell, 158 Vt. at 284, 608 A.2d at 47 (explaining this Court has adopted rule in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978), which held that "neither charge [is] wrong as a matter of law" (quotation omitted)). The defendant has the right to choose which instruction the court will provide. Id. (reasoning defendant should have right to choose transition instruction because "it is [defendant's] liberty that is at stake" (quotation and alteration omitted)); see also State v. Duff, 150 Vt. 329, 336, 554 A.2d 214, 218 (1988) (explaini...