State v. Rougeau

• Decision Date: 22 March 2019
• Docket Number: No. 2019-037,2019-037
• Citation: 2019 VT 18
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Bernard D. Rougeau

2019 VT 18

State of Vermont
v.
Bernard D. Rougeau

No. 2019-037

Supreme Court of Vermont

February Term, 2019
March 22, 2019

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Bennington Unit, Criminal Division

William D. Cohen, J.

Robert F. Plunkett, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, Montpelier, Katherine Lamson, Bennington County Public Defender, and Richard P. Burgoon, Jr., Law Clerk (On the Brief), Bennington, for Defendant-Appellant.

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

¶ 1. CARROLL, J. Defendant appeals the trial court's requirement that he post $100,000 cash or surety bond to mitigate any potential risk that he flee from prosecution. See 13 V.S.A. § 7554(a)(1)(E). He is currently held in custody for failure to post bail while he awaits trial on three counts: aggravated assault on a law enforcement officer by threatening with a deadly weapon (13 V.S.A. §§ 1024(a)(5), 1028(a)(1)), reckless endangerment (13 V.S.A. § 1025), and interference with access to emergency services (13 V.S.A. § 1031). He challenges the imposition of bail and the amount of bail imposed. We affirm.

¶ 2. The following facts are based on the affidavit of probable cause and representations made by counsel during the bail-review hearing.¹ In October 2018, defendant's

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sister telephoned the state police to report that defendant was suicidal and had cut himself. Defendant lived at his mother's house. Police dispatched officers to that location, and, while those officers were en route, other officers telephoned the house. Defendant's mother answered the call and confirmed that defendant was inside the residence, he was intoxicated, and, indeed, he had cut himself. During the call, defendant was heard yelling in the background and he purportedly disconnected the call before it had finished. Minutes after the call was cut off, dispatch called the home back. Defendant's mother answered, and she reported that defendant had fled from the residence carrying a long-gun firearm. Before leaving he said, "I'm not going with them they are going to kill me."

¶ 3. The police arrived at the home and an officer located defendant outside, emerging from the surrounding woods. He was armed. According to the affidavit of probable cause, the officer warned him to drop the weapon, yet defendant advanced toward the officer, still holding the gun. Then defendant raised the firearm. In that moment, according to the affidavit, the officer shot defendant in the abdomen.

¶ 4. Defendant was taken into custody and airlifted to Albany Medical Center to treat his wounds. In November 2018, he waived extradition from New York and was arraigned in Vermont on the above-three counts.

¶ 5. At the arraignment, defense counsel argued that defendant did not pose a risk of flight from prosecution, and if he did then a low amount of bail should be imposed. Counsel explained that defendant was a lifelong resident of the town of Bennington; he was a thirteen-year employee of Kaman Composites in Bennington, where he was paid $16.75 per hour; "[h]is entire family. . . includ[ing] his daughter, his mother, and his sister" live in the Bennington area; and he had waived extradition from New York. The State argued that defendant's charges involved a "mental health break," threats of self-harm, and a firearm. Moreover, "an individual who flees into the woods with a firearm, indicating to his mother that he wants to be shot by the police, poses a significant risk of flight." The State also recounted defendant's criminal history,

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which involved felony convictions for arson, DUI III, multiple contempt-of-court convictions, and a failure to appear. The court ruled that defendant posed a risk of flight and set bail at $100,000 cash or surety bond based on defendant's criminal record, the seriousness of the offense, and the nature and circumstances of the offense.

¶ 6. Defendant moved for a bail-review hearing. At the hearing, defense counsel argued that defendant posed a greater risk to himself in this case than to anyone else, unlike other possible circumstances involving the same charges, and currently there was not great evidence of defendant's guilt.² Counsel reiterated defendant's strong personal and family ties to the community and explained that his good character was demonstrated by his history of employment and his loving relationship with his daughter. Counsel explained that if defendant were released, he would reside at his residence alone because his mother had moved out. Also, counsel noted that defendant's health depends upon the maintenance of a colostomy bag and if he were to flee from prosecution after being released, he would be putting himself in "grave danger." While noting that defendant has prior convictions for violating conditions of release and one failure-to-appear charge on his criminal history record, counsel explained that defendant's record also showed that he had successfully completed probation and that the failure-to-appear charge was an isolated incident, not an intentional attempt to evade prosecution.

¶ 7. Defense counsel represented to the court that neither defendant nor his family could afford to post $100,000 cash or surety bond and requested that the court "rely on the public-defender application" when assessing defendant's financial means. The court stated that in its view, it is "a bad policy" to use this form for any purpose other than deciding whether an individual qualifies for a public defender. Defense counsel then represented to the court that defendant has no savings, and that he had lost his job in the aftermath of the events giving rise to this case.

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¶ 8. The State argued that defendant's alleged interference with access to emergency services, his statement that he believed that the police were going to kill him, and his assertion that he wanted the police to shoot him are acts suggesting that defendant posed a risk of flight. The State conceded that a defendant's "ability to pay" should be analyzed. The State also argued that defendant has a lengthy criminal record, which includes two felony convictions, six misdemeanor convictions—four of which are violations of court orders—and the failure-to-appear conviction. And, according to the State, although defendant was suicidal during this offense, he also raised a loaded gun at an officer.

¶ 9. The court denied defendant's request to reduce or eliminate bail. It explained that the circumstances of the offense involved the police's seeking to locate defendant at his home to ensure his well-being; defendant was not there, but he then emerged from the surrounding woods holding a long gun. When requested by police to drop the weapon, he continued to walk forward and raised the weapon. The court also found that defendant's mental condition at the time of the incident was unstable and could not be relied upon. Additionally, the defendant had prior convictions for noncompliance with court orders. Last, defendant had a failure-to-appear conviction, though the court noted that it was fifteen years old.

¶ 10. The court assessed defendant's financial means, including that his mother owns a home in Pownal. Rather than consider the information in the public-defender application, the court stated it would take defense counsel's representation that defendant is "not a person of means." The court also acknowledged that defendant has strong familial ties to Bennington County and consistent employment despite having recently been fired. These factors mitigate the risk of flight from prosecution to a degree. However, the court concluded that despite several factors suggesting that little or no bail should be imposed—including defendant's lack of funds—the "overriding issue in this case is the seriousness of the offense and the facts and circumstances of the offense." These factors create a risk of flight from prosecution. The court therefore denied defendant's motion to remove or reduce bail.

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¶ 11. Defendant is unable to post bail and is currently in pretrial custody. He appealed the trial court's bail determination and makes four arguments. First, that he does not present a risk of flight from prosecution, and therefore no bail should be imposed on him. Second, that the amount of bail set by the trial court constituted an abuse of discretion. Third, that the trial court abused and withheld its discretion by refusing to consider proof of his limited financial means in the form of the public-defender application. Fourth, that the court should interpret the amended-pretrial-release statute to prohibit the setting of bail above the maximum fines for an accused's charges.

¶ 12. We reject these arguments with one exception: under the circumstances of this case, the trial court should have considered—although it need not accept the veracity of or rely upon the information contained within—the public-defender application in its analysis. However, because the court here accepted counsel's representation that defendant's financial means were limited, the refusal to consider the public-defender application was harmless. We therefore affirm.

¶ 13. The Legislature recently amended the statute governing pretrial detention and release under which courts may impose bail. 13 V.S.A. § 7554; 2017, No. 164 (Adj. Sess.), § 3 (eff. July 1, 2018). Under the old statute, when deciding whether to impose bail, courts were to consider whether a defendant posed a risk of not appearing in court. 13 V.S.A. § 7554 (2017)....