State v. Wool

Decision Date08 July 1994
Docket NumberNo. 93-023,93-023
Citation162 Vt. 342,648 A.2d 655
PartiesSTATE of Vermont v. Kirk WOOL.
CourtVermont Supreme Court

Scot Kline, Chittenden County State's Atty., and Pamela Hall Johnson, Deputy State's Atty., Burlington, for plaintiff-appellee.

Dori Jones, Burlington, for defendant-appellant.

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

ALLEN, Chief Justice.

Defendant Kirk Wool appeals his conviction on two counts of aggravated sexual assault, 13 V.S.A. §§ 3252(a)(1), 3253(a)(3), following a jury trial. We affirm.

At trial, the victim testified as follows. A few minutes past midnight on January 18, 1992, she was walking the short distance home from a friend's house in downtown Burlington. Defendant stopped his car and offered her a ride. The victim did not know defendant, but she accepted the ride because it was snowing and she was carrying a table that a friend had lent her to furnish her new apartment. Defendant drove toward the victim's house, but when they approached her residence he did not stop. Instead, he grabbed the victim in a head-lock and drove to his house several blocks away. Rather than risk harm by resisting defendant, the victim submitted to his control. When they arrived at his house, defendant held the victim's arms behind her back and ushered her inside.

The victim testified that defendant brought her upstairs to his bedroom, locked the door behind them, and ordered her to remove her clothes. He prepared to inject himself with cocaine, and said that he was going to play with her until he had finished the cocaine and would hurt her if she refused to comply. Defendant bound her hands and feet with a leather belt and a dirty towel. Over the next few hours, defendant performed anal intercourse and oral sex on the victim, and forced her to perform oral sex on him. He forced her to lick his feet and anus. The victim also reported being struck on the back, possibly by a stick that defendant had in the room. According to her story, defendant repeatedly injected himself with cocaine during the night. She attempted to reason with him and calm him down by getting him to talk about himself and his family, and talking about herself. Toward morning, defendant "came down" from the drugs and let her leave. He offered to drive her home or get her a taxi, but she declined. She retrieved the table and rug, and returned to her friend's apartment where she had eaten dinner the night before.

Defendant told a very different story. He admitted meeting the victim that night and offering her a ride home. They chatted for the fairly brief drive to her apartment. He asked her to come to his house to watch a movie, and she agreed. On arriving at defendant's house, they sat together in the living room, and then went upstairs to meet his roommates. He discovered that they were not home, contrary to their usual practice and his expectations. They proceeded to his room, where they chatted about themselves and their families. He turned the conversation to sex, and they engaged in consensual foreplay. He denies any intercourse took place, but admits that the victim indicated she wanted him to penetrate her anus with his penis, and that he did so briefly until she indicated discomfort. According to defendant, they spent the rest of the night together engaged in conversation, foreplay-type activity, and mutual masturbation. He maintains that their interaction was completely consensual.

A couple of hours after returning to her friend's apartment, the victim went to the hospital and was given a thorough medical examination by Dr. Misty Porter. The victim explained that she had been bound and raped. According to her trial testimony, Dr. Porter's examination revealed tears in the superficial tissues of the victim's rectum, but uncovered no other cuts or bruises on her body. The doctor performed the standard protocol for gathering evidence of sexual assault in the course of the examination.

Defendant was arrested and charged with two counts of aggravated sexual assault, 13 V.S.A. §§ 3252(a)(1), 3253(a)(3). A public defender was appointed to represent defendant before his arraignment on January 20, 1992. On June 9, 1992, defendant filed a motion requesting to proceed pro se, and the motion was granted after a lengthy colloquy between defendant and the court. The court ordered the public defender, Jerry Schwarz, to act as standby counsel to defendant, which meant that Schwarz should be present in the ensuing proceedings as much as possible, and that he provide defendant the materials and services to take depositions.

On appeal, defendant claims the following errors: (1) denial of investigative services and expert testimony, (2) failure to appoint counsel for defendant at the start of the third day of trial, (3) jury prejudice, and (4) prejudicial remarks by the prosecution during jury voir dire.

I.
A.

On July 8, 1992, defendant filed a motion requesting in part that the court approve an investigator to research an expert witness to respond to Dr. Porter's examination report of the victim. The motion was denied. Defendant maintains that denial of the services of an investigator and expert witness, at public expense, contravened his constitutional rights to present evidence and call for witnesses in his defense, and his rights under the Public Defender Act (PDA), 13 V.S.A. §§ 5201-5277. Defendant makes the constitutional claims for the first time on appeal; therefore, we do not consider them. State v. Prue, 138 Vt. 331, 331-32, 415 A.2d 234, 234 (1980).

Defendant bases his claim of entitlement to investigative and expert witness services at public expense on § 5231 of the PDA. The State contends that defendant failed to raise the statutory claim as well as the constitutional claim. Specifically, the prosecution argues that defendant did not direct the court's attention to the PDA in arguing that he had the right to investigative and expert witness services, even though he did not accept a public defender. In considering this claim of nonpreservation, we acknowledge that defendant exercised his constitutional right to represent himself at trial, and was aware that "he [might] conduct his own defense ultimately to his own detriment." Faretta v. California, 422 U.S. 806, 834-35, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562 (1975); accord State v. Dragon, 135 Vt. 168, 169, 376 A.2d 12, 13 (1977); cf. Olde & Co. v. Boudreau, 150 Vt. 321, 322, 552 A.2d 793, 794 (1988) (court responsible to insure only that pro se litigant not be unconscionably disadvantaged).

Aside from exceptional instances of plain error, a party must make a timely objection to preserve an issue for review. State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330, 333 (1987). This rule ensures that the trial court first addresses correctable error, and facilitates the development of a record for appeal. State v. Kasper, 137 Vt. 184, 190, 404 A.2d 85, 89 (1979). The preservation rule promotes fair trials and minimizes mistrials and retrials, because it guarantees that attorneys will not reserve trial court errors for first airing on appeal in the event of an unfavorable outcome. Id. at 190-91, 404 A.2d at 89.

In his motion, defendant reiterated that he was found indigent, that there had been no change in his financial status, and that he had waived appointed counsel. Defendant went on to request "that the Court appoint an investigator for the purpose of researching an 'expert witness'--defense would call to testify in his defense of Complainant's story as related to (State's medical exam and report of) State's Witness Misty Porter M.D." In a hearing on the motion held July 17, 1992, the following exchange occurred:

THE COURT: Well, the ... problem is you've asked for a number of things to take place pretrial, and it's still going to be impossible for you to accomplish it, and Mr. Schwarz [defendant's former counsel, acting as "standby counsel"] might be able to accomplish some of those things.

THE DEFENDANT: I'm not sure what you would be referring to, Judge.

THE COURT: Well, investigator, for instance.

THE DEFENDANT: Okay.

THE COURT: I mean, we don't pay for an investigator. So that would not be something that's doable.

....

THE DEFENDANT: I think what I detailed was for a specific reason. It wasn't that I wanted an investigator to run around town. It was for a specific reason, and that was to research a professional witness with regards to responding to the medical report.

THE COURT: That would be more possible with Mr. Schwarz, than if he wasn't in, because if he's not in, then there is just no resources available.

....

THE COURT: I think that we understand. So those are--that's what you're missing if you go on your own, or you can have some limited services from Mr. Schwarz [as standby counsel], or you can have all of the services.

Defendant never cited the PDA in support of his contention that he was entitled to defense-related services at public expense. He argued, however, that he would have been afforded these services had he accepted the public defender, and should not be penalized by his decision to exercise his right to represent himself. Defendant raised the issues embodied in the language and contents of the statute--the right to a public defender and associated services of a constitutionally adequate defense. Cf. Rowe v. Brown, 157 Vt. 373, 378, 599 A.2d 333, 336 (1991) (statutory remedy need not be cited at trial if party "clearly and adequately describe[s] the relief sought at trial"). Moreover, the court's ruling illustrates that the court squarely addressed the issue and reasoned that an indigent's right to a defense paid from the public fisc is an "all or nothing" proposition. Defendant raised the issue of assistance, and the court considered and ruled on it, leaving an ample record for appellate review. Therefore, the issue has been preserved and may be examined on appeal.

B.

Section 5231 of the Vermont Public Defender...

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