State v. Sauve, 94-670

• Citation: 164 Vt. 134,666 A.2d 1164
• Decision Date: 11 August 1995
• Docket Number: No. 94-670,94-670
• Parties: STATE of Vermont v. Larry SAUVE.
• Court: United States State Supreme Court of Vermont

Page 1164

666 A.2d 1164

164 Vt. 134

STATE of Vermont v. Larry SAUVE.

No. 94-670.

Supreme Court of Vermont.

Aug. 11, 1995.

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

Charles S. Martin of Martin & Paolini, Barre, for defendant-appellee.

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

JOHNSON, Justice.

In this appeal, we consider the scope of V.R.Cr.P. 48(b)(2), which authorizes the trial court, in furtherance of justice, to dismiss a criminal prosecution with prejudice to the refiling of charges. In this case, the trial court dismissed sexual assault charges against defendant over the prosecutor's objection after the jury failed to reach a verdict following a five-day trial. We conclude that the court abused its discretion in dismissing the case.

I.

In May 1993, defendant was charged with sexual assault of a minor, Opal W., who was five or six years old at the time the assaults allegedly occurred, between September 1985 and December 1986. According to the amended complaint, defendant was living with the victim's mother when he sexually assaulted Opal on two occasions, once with the aid of another woman named Janice. At trial, the State presented the testimony of Opal, her mother, her foster mother, and a state police investigator who was present during an interview of Opal in 1992. Opal had great difficulty testifying, and the trial court limited or excluded much of the proposed testimony of the other witnesses regarding what Opal had told them about the alleged assaults. The defense presented the testimony of Janice, a police investigator, and a friend of Opal's in an attempt to show inconsistencies between Opal's trial testimony and her statements at a prior deposition. Closing arguments centered almost exclusively on Opal's credibility.

After approximately eight hours of deliberation, the jury reported that there was no reasonable probability of reaching a unanimous verdict, and the court declared a mistrial. During the eight hours of deliberation, portions of the trial testimony were read back to the jury at its request. Following the mistrial, the State amended the information to charge penile/vaginal contact rather than insertion, and to allege Janice's presence rather than assistance at the second assault. Defendant then filed a motion to dismiss in furtherance of justice under Rule 48(b)(2). A hearing was held, after which the court granted defendant's motion, ruling as follows:

The trial in this matter was conducted completely and correctly. The jury had a full opportunity to reach a verdict and was unable to find the defendant guilty beyond a reasonable doubt.

The rulings on the admissibility of evidence have been reviewed and would not be changed during a second trial.

The court is concerned about the effect on Opal [ ], a very troubled young lady, about participating in such a trial for a second time. The research on the effect on children of participating in court processes with respect to sexual abuse prosecutions indicates that the process alone on recounting stories multiple times has an effect whether or not the alleged incidents took place. The Court is mindful of the effect on Opal of recounting the incidents involving this difficult period in her life yet again.

The Court is also mindful of the age of the evidence in this case.

The State reminded the Court that it has a responsibility to balance the interests of the defendant against the rights of society, but the State has not made a strong showing in this case of why it is in the interest of society to try this case a second time when the jury was unable to reach a verdict after the first trial.

The impact on Opal [ ] is significant here and the State has not been able to persuade the Court that it is in the interest of Opal individually as a member of society or society at large to try this case at this time, several years after the alleged incident. Opal has had the benefit during the intervening time of significant help. The court is concerned about the possible impact of having to have her testify again.

In addition to balancing the interests, the court is also responsible for the integrity of the process as a whole. And for the reasons just stated, after taking all of these factors into consideration, the Court does conclude that this case is in fact one of the rare cases in which, to serve the ends of justice, it is appropriate to dismiss the case with prejudice. Therefore, the case is dismissed.

On appeal, the State argues that the trial court erred in dismissing the charges because (1) abuse of discretion is an inappropriate standard for reviewing dismissals with prejudice in furtherance of justice, and (2) the factors relied on by the court do not support dismissal of the charges.

II.

The State first argues that an abuse-of-discretion standard is appropriate only when the trial court dismisses cases for want of prosecution. According to the State, dismissal of prosecutions with prejudice in the interest of justice implicates the separation-of-powers doctrine, and this Court rather than the trial court is better suited to weigh the competing interests of the judicial and executive branches.

Rule 48(b) provides that the trial "court may dismiss the indictment or information, (1) If the prosecution does not bring the defendant to trial within such time as the Supreme Court may provide by Administrative Order; or (2) If the court concludes that such dismissal will serve the ends of justice and the effective administration of the court's business." Subsection (b)(2) is based on the January 1970 proposed, but unadopted, amendments to Federal Rule of Criminal Procedure 48. Reporter's Notes, V.R.Cr.P. 48. In 1989, the following sentence was added to V.R.Cr.P. 48(b): "Unless the court directs that the dismissal is with prejudice, the dismissal shall be without prejudice."

The State reasons as follows in arguing that we should not apply an abuse-of-discretion standard in reviewing trial court decisions to dismiss criminal prosecutions in furtherance of justice: (1) we have applied an abuse-of-discretion standard in the past when reviewing Rule 48 dismissals, see State v. Snide, 144 Vt. 436, 440, 479 A.2d 139, 142 (1984), but only for want of prosecution, and only before the 1989 amendment to Rule 48 permitted dismissals with prejudice; (2) the Advisory Committee Note to the 1970 proposed amendments to the federal rule indicated that dismissals would not be with prejudice and cited examples of dismissals only in cases involving de minimis violations or the prosecution's failure to bring matters promptly to disposition, see 48 F.R.D. 553, 640-41 (1970); (3) the Reporter's Notes to V.R.Cr.P. 48 incorporated the proposed federal rule's Advisory Committee Note; (4) the discussion and cases cited in the Reporter's Notes to the 1989 amendment to V.R.Cr.P. 48 refer only to dismissals for want of prosecution; and (5) expanding the remedy of dismissal with prejudice beyond cases involving want of prosecution, particularly if this Court reviewed the application of that remedy under an abuse-of-discretion standard, would offend the separation-of-powers doctrine.

The State's convoluted argument reads too much into the relevant rules and their accompanying notes. Neither V.R.Cr.P. 48 nor the Reporter's Notes to that rule restrict application of the remedy of dismissal with prejudice to de minimis cases or cases involving want of prosecution. Nor do the Reporter's Notes suggest that the examples contained therein constitute an exclusive list of the situations in which the court can dismiss cases with prejudice. Subsection (b)(1) of Rule 48 covers dismissals for want of prosecution, while subsection (b)(2) is worded in general terms--ends of justice and effective administration of court business--to cover exceptional situations arising out of particular facts that are not susceptible to being labeled under a specific category. Further, the sentence indicating when dismissals are with or without prejudice is placed following subsection (b)(2); there is no indication that the remedy of dismissal with prejudice is applicable only when dismissals are for particular reasons, or that a different standard of review applies depending on the basis for the dismissal.

We acknowledge that separation-of-powers principles are implicated when a court dismisses a criminal prosecution with no opportunity for the State to refile charges. But while the prosecution is generally granted broad discretion in deciding whether to initiate criminal prosecutions, see State's Attorney v. Attorney General, 138 Vt. 10, 13, 409 A.2d 599, 601 (1979), the executive's power to dismiss or to follow through with a prosecution has not been completely unfettered by judicial oversight. See State v. Abbati, 99 N.J. 418, 493 A.2d 513, 521 (1985) (although independence of prosecutor's office has always been accorded wide deference, historically it has never been regarded as free from judicial supervision). Indeed, many states require judicial consent for dismissal of cases, and many other states besides Vermont authorize trial courts to dismiss criminal prosecutions on their own motion in furtherance of justice. State v. Echols, 793 P.2d 1066, 1071 (Alaska Ct.App.1990). ¹ The fairness ideal embodied in these laws has ancient roots. People v. Rickert, 58 N.Y.2d 122, 459 N.Y.S.2d 734, 735, 446 N.E.2d 419, 420 (1983). Yet, despite the number of jurisdictions with similar longstanding laws, the State has not cited, and we have not found, any case striking down such a law as an unconstitutional violation of the separation-of-powers doctrine. Cf. People v. Kirby, 92 A.D.2d 848, 460 N.Y.S.2d 572, 573 (1983) (trial court's inherent authority to terminate prosecution to assure integrity of its judgment is traceable to separation-of-powers principle). Nor have we found any case...