State v. Sharrow

• Decision Date: 07 March 2008
• Docket Number: No. 06-056.,06-056.
• Citation: 949 A.2d 428,2008 VT 24
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Thomas S. SHARROW.

949 A.2d 428

2008 VT 24

STATE of Vermont v. Thomas S. SHARROW.

No. 06-056.

Supreme Court of Vermont.

March 7, 2008.

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Robert Gardner, Law Clerk (on the Brief), Montpelier, for Defendant-Appellant.

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

SKOGLUND, J.

¶ 1. Defendant Thomas S. Sharrow appeals from a conviction for attempted second degree murder following a jury trial in Chittenden District Court. Defendant argues that he was deprived of his right to an impartial jury when the trial court refused to excuse a police officer from the jury for cause. Defendant also argues that the court made a series of erroneous evidentiary rulings. Finally, defendant argues that the trial court erred in admitting evidence of a pending criminal charge without a grant of immunity. We conclude that neither the trial court's refusal to excuse the police officer from the jury nor its failure to grant defendant immunity constituted prejudicial error, and that defendant's evidentiary arguments either lack merit or were not preserved. We therefore affirm.

¶ 2. Defendant was charged with attempted murder after an altercation between defendant and the complainant, his then-girlfriend, that took place in the early morning of October 4, 2003 resulted in her receiving six knife wounds to her head, neck, arm and back. The State's theory of the case was that defendant, upset that the complainant had called the police after he broke into her apartment and assaulted her on the evening of October 3, reentered the complainant's apartment early the next morning and repeatedly stabbed her. In a motion in limine, the State sought to admit four prior incidents of misconduct to provide context for the charged incident, including a July 2003 incident that resulted in charges of aggravated domestic assault against defendant that were still pending at the time of defendant's attempted murder trial. The trial court granted the State's motion as to all four incidents.

¶ 3. Defendant's version of events was different. Defendant asserted that the stab wounds the complainant sustained were the unintended result of a violent struggle that took place after the complainant came at defendant with a knife. Defendant claims that to support his theory of self defense at trial he wanted to elicit testimony about and enter into evidence a short story that the complainant had written and shared with defendant before the charged incident in which a woman stabs her lover with a corkscrew.¹ The State filed a motion to exclude the short story. The trial court barred defendant from introducing the story into evidence or using it to cross-examine the complainant in its decision on the State's motion, but ruled that defense counsel could question defendant about the story when he testified. The trial court also allowed defendant to impeach the complainant by asking whether, in the past, she had made a false report about an ex-boyfriend. The trial court did not, however, allow defendant to ask about specifics of the alleged report.

¶ 4. During the jury draw, defendant challenged for cause a venireperson who was employed as a police officer. Defendant argued that, in the past, the prospective juror had taught some of the law enforcement personnel the State planned to call as witnesses at the police academy and had worked with some of them in his capacity as a police officer. The challenge was denied, and defendant subsequently used his second preemptory challenge to strike the prospective juror. Defendant also challenged another prospective juror for cause on the grounds that she was an auxiliary police officer currently working in a lab with two witnesses from whom the State planned to elicit technical DNA evidence. The trial court excused this prospective juror for cause for this reason.

¶ 5. Defendant first argues that the trial court's failure to excuse the first prospective juror for cause deprived him of his right to an impartial jury. The State argues that defendant has failed to preserve this argument for appellate review. Without deciding whether defendant has, in fact, preserved this argument, we hold that the trial court did not err by failing to excuse the prospective juror for cause.

¶ 6. Criminal defendants have a constitutional right to trial by an impartial jury. U.S. Const. amend. VI ("[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury"); Vt. Const. ch. I, art. 10 ("in all prosecutions for criminal offenses, a person hath a right to ... a speedy public trial by an impartial jury"); see also State v. Holden, 136 Vt. 158, 160, 385 A.2d 1092, 1094 (1978). Trial courts must safeguard this right by excluding from the jury persons who evince bias against the defendant.

¶ 7. "Traditionally, challenges for cause have been divided into two categories: (1) those based on actual bias, and (2) those grounded in implied bias." United States v. Torres, 128 F.3d 38, 43 (2d Cir.1997). In Vermont, we recognize both actual (or fixed) bias and implied bias as proper grounds for challenges for cause. See e.g., State v. Grega, 168 Vt. 363, 369-70, 721 A.2d 445, 450-51 (1998) (evaluating whether juror had fixed bias); State v. Percy, 156 Vt. 468, 478-79, 595 A.2d 248, 253-54 (1990) (evaluating both whether juror had fixed bias and whether this Court should infer bias); State v. Kelly, 131 Vt. 358, 360-61, 306 A.2d 89, 90 (1973) (evaluating whether trial court should have inferred bias). Courts must sustain a party's challenge for cause where the prospective juror demonstrates fixed bias or where the law infers that the prospective juror is biased. See Percy, 156 Vt. at 478-79, 595 A.2d at 253-54. Defendant argues that the court erred by denying defendant's for-cause challenge of the prospective juror on the basis of a perceived fixed bias. In the alternative, defendant urges us to hold that the law should infer that the prospective juror is biased.

¶ 8. A prospective juror has a fixed bias when, through his or her answers to questions posed on voir dire, the potential juror evinces a state of mind inconsistent with deciding the case fairly. Id. at 478, 595 A.2d at 253; see also Jones v. Shea, 148 Vt. 307, 309, 532 A.2d 571, 573 (1987) (holding that a potential juror is subject to challenge for cause if, under examination, the juror "exposes a state of mind evincing a fixed opinion, bias, or prejudice" (quotation omitted)). A prospective juror's statement that he may have trouble putting aside his prejudices, making a decision based only on the evidence, or applying a burden of proof or law with which he disagrees indicates fixed bias. See State v. Santelli, 159 Vt. 442, 446, 621 A.2d 222, 224 (1992) (juror who stated that a refusal to take a breath test was proof positive of the defendant's guilt and that juror would not listen to the defendant's explanation as to his reasons for refusal demonstrated fixed bias); State v. McQuesten, 151 Vt. 267, 270, 559 A.2d 685, 686 (1989) (jurors who acknowledged possible inability to put aside prejudices against persons accused of driving under the influence demonstrated fixed bias); Holden, 136 Vt. at 161, 385 A.2d at 1094 (juror who "expressed her belief that a defendant had an obligation to prove his innocence" demonstrated fixed bias). And while "[k]nowing a witness does not automatically require removal of a prospective juror," a potential juror has a fixed bias when he "indicates an inclination to believe or disbelieve the testimony of someone he knows." State v. Doleszny, 146 Vt. 621, 622, 508 A.2d 693, 694 (1986). In Doleszny, for instance, we held that a prospective juror who expressed doubt concerning his ability to impartially weigh testimony of a key prosecution witness whom he knew personally demonstrated fixed bias. Id.

¶ 9. On the other hand, where a prospective juror has stated that he can judge the case fairly, or has at least failed to state that he could not, we have been reluctant to conclude that the potential juror had a fixed bias as a matter of law. In State v. Hohman, for instance, we held that a prospective juror who was familiar with an earlier trial of the defendant did not necessarily demonstrate fixed bias where she said that she could be impartial despite her knowledge. 138 Vt. 502, 511-12, 420 A.2d 852, 858 (1980), overruled on other grounds, Jones, 148 Vt. at 309, 532 A.2d at 572. We have even been reluctant to hold that a potential juror's opinion that police officers are more truthful than others demonstrated fixed bias as a matter of law in cases where "[t]he juror never stated that he would automatically assume that a police officer is speaking truthfully." Percy, 156 Vt. at 480, 595 A.2d at 255. While a juror's stated confidence in his own impartiality is not dispositive of the question of fixed bias, "in the absence of an indication of bias in the record we will not upset the determination of the trial judge, based, as it was, upon the actual observation of the juror." Id. at 479, 595 A.2d at 254 (quotation omitted).

¶ 10. The record reflects that the prospective juror had been a police officer for more than twenty-five years, had taught at the police academy for thirteen years, was currently employed by the Colchester Police Department, and knew — in those various capacities — several of the Burlington police officers the State planned to call as witnesses. On voir dire, the prospective juror also indicated that he was familiar with domestic violence cases and taught classes about domestic violence at the police academy and elsewhere. The following exchange between defense counsel and the prospective juror took place on voir dire:

MR. GRIFFIN: ... So, how — you indicated, and I...