State v. Villeneuve

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-015


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 3, Lamoille Circuit

Dennis A. Villeneuve                         February Term, 1990



Ronald F. Kilburn, J.

Joel Page, Lamoille County State's Attorney, Hyde Park, for plaintiff-
  appellee

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
  Defender, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     ALLEN, C.J.   Defendant was convicted, after a jury trial, of assault
and robbery in violation of 13 V.S.A. { 608(b).  He argues on appeal that
the trial court violated his right to trial by jury by discharging a juror
without adequate inquiry and without finding a basis for removal.  We agree
and reverse for a new trial.
     In response to questioning at voir dire, the juror in question, Laura
Lehouillier, indicated that she was not acquainted with one of defendant's
alibi witnesses, Lisa Burt, though she acknowledged knowing other witnesses,
including defendant and his family.  After closing arguments but before the
jury charge, the trial judge conducted a conference in chambers because a
court officer expressed certain concerns about Lehouillier's presence on the
jury panel.  A discussion on the record in chambers addressed whether
witness Burt might have attended a party at the home of juror Lehouillier
the night the alleged assault and robbery occurred, based on a statement in
witness Burt's deposition referring to "a Lehouillier party in Johnson."
The following discussion then took place:
            MR. PAGE [prosecutor]:  My feeling would be we've
         made it this far; we've got two alternates who have sat
         through arguments and both seem to be competent.  Why
         jeopardize the jury process with a possible wild card if
         it looks like there could be the problem?

            THE COURT:  That was my concern since I got the
         information.  That's why I didn't let the jury go to
         lunch yet.  I didn't want the opportunity for mingling.
         Can you, Court Officer Trombly, shed any more light on
         what you heard?

            MS. TROMBLY:  Not any more of what I heard.  Maybe my
         observation but that's all.

            THE COURT:  Well?

            MS. TROMBLY:  Just things that I just observed and I
         don't know if that should count or not.

            THE COURT:  What have you observed?

            MS. TROMBLY:  Well, I observed that whenever Mr. Page
         speaks, I view as though she doesn't want to listen to
         what he's saying, but when Mr. Curtis [defense counsel]
         speaks, she's all smiles, and you know, not that that
         makes any difference except for the fact that it's
         almost as though she didn't want to hear anything bad
         about Dennis.  But only good.

            MR. VILLENEUVE [defendant]:  I've never seen her
         before in my life except for in school years ago.
         That's all I can say about the whole situation.

            THE COURT:  Well, and nobody is suggesting -- hope
         you understand that you have nothing to do with this.
         But it's of a sufficient concern at this point for me to
         excuse her.  As long as there's the remote possibility
         that she might have some reason lurking in the
         background why she could not be impartial, one way or
         the other.

            MR. CURTIS:  Why don't we ask her?

            MR. PAGE:  I don't want to.

            THE COURT:  Trouble with asking her, you draw
         attention to her, and I think that, in and of itself,
         might interfere with her ability to deliberate, having
         attention drawn to her.  That would be my concern.

A further examination of court officer Trombly revealed that she had not
obtained the information that triggered her concern about juror Lehouillier
by overhearing the remarks of anyone on the jury.  The source of some of
Officer Trombly's information was her daughter, who she said had attended
school with Lehouillier.  And the focus of Trombly's concern was not a party
at the home of juror Lehouillier, but rather Trombly's belief that the juror
was well acquainted with defendant.
     Nevertheless the court stated:
            THE COURT:  All right.  I've asked to have two court
         officers to keep jury security so that the jury won't
         have contact with outsiders during the trial.  You were
         brought in as a Court Officer because you're trained to
         do that, to observe the jury.  You observed something,
         apparently, that concerned you about jury integrity; is
         that correct?

            MS. TROMBLY:  That's right.

            THE COURT:  You were concerned enough about it to
         mention it to your boss, the Sheriff.  All right.
         That's enough for me to excuse the juror.  And if you
         folks want to make any further record, feel free to.  I
         realize that you might do it -- you might not do it that
         way, but I feel obligated to do it that way.

Without questioning her, the court excused juror Lehouillier during a lunch
recess, replaced her with the first alternate juror, and noted her absence
without explanation when the trial resumed.  Defendant objected during the
in-chambers conference to replacing juror Lehouillier.  The jury returned a
guilty verdict, and defendant was sentenced to a term of seven to fifteen
years, with three years to serve and the balance suspended.
     Defendant argues that the trial judge violated his right to trial by
jury by discharging juror Lehouillier without first making inquiry on the
record into the necessity for the discharge and without explaining the
reasons for the discharge.  He grounds his claim initially on the broad
language in Chapter I, Article 10 of the Vermont Constitution that a
criminal defendant has the right to be tried by a common law jury, "without
the unanimous consent of which jury, he cannot be found guilty."  Defendant
also relies on guarantees of the right to trial by jury in state criminal
prosecutions for serious offenses under the Sixth and Fourteenth Amendments
to the United States Constitution.
     Once a jury is empaneled and sworn, jeopardy attaches, and a defendant
has a "'valued right to have his trial completed by a particular tribunal.'"
State v. Corey, 151 Vt. 325, 330, 561 A.2d 87, 90 (1989) (quoting Arizona v.
Washington, 434 U.S. 497, 503 (1978)).  The court's discretion in dis-
qualifying a juror after empaneling must be exercised with care and
deliberation, given the importance of defendant's presumptive right to be
tried by the jury duly empaneled.  As the court suggested in People v.
Hamilton, 60 Cal. 2d 105, 128, 393 P.2d 412, 425, 32 Cal. Rptr. 4, 17
(1963), the power of the court to remove a juror in proper circumstances
"does not mean that either side is entitled to have removed from the panel
any qualified and acting juror who, by some act or remark made during the
trial, has given the impression that he favors one side or the other."
V.R.Cr.P. 24(d) provides that alternates shall replace jurors "who, prior to
the time the jury retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties."  Implicit in this rule is
the requirement that the court make findings on disqualification after due
inquiry on the record.  Cf. People v. Cargill, 70 N.Y.2d 687, 688-89, 512 N.E.2d 313, 314, 518 N.Y.S.2d 792, 793 (1987) (before it can discharge a
juror, court "must be convinced, after a probing and tactful inquiry, that
the sworn juror will be unable to deliberate fairly and render an impartial
verdict.").
     There is no indication that the court was swayed by court officer
Trombly's remarks that juror Lehouillier seemed sympathetic to defendant.
But the absence of any examination of the juror leaves the issue open to
question.  If sanctioned as acceptable practice, removing jurors without
examination on the record would erode confidence in the jury system as fair
and impartial because it allows the appearance or possibility of
manipulating the jury panel membership based on an individual juror's
demeanor or behavior during trial.  The only way to guarantee a defendant's
right to an impartial panel is to choose that panel under rules calculated
to promote fairness and then to bar removal, except for demonstrated cause
with findings on the record.
     The court in People v. Buford, 69 N.Y.2d 290, 299, 506 N.E.2d 901, 905-
06, 514 N.Y.S.2d 191, 195-96 (1987) set forth a procedure in accordance with
New York law that effectively addresses the requirements of Chapter I,
Article 10 of the Vermont Constitution:
         In reaching its conclusion, the trial court must
         question each allegedly unqualified juror individually
         in camera in the presence of the attorney and defendant.
         Counsel should be permitted to participate if they
         desire.  In a probing and tactful inquiry, the court
         should evaluate the nature of what the juror has seen,
         heard, or has acquired knowledge of, and assess its
         importance and its bearing on the case.  In this
         context, the court should carefully consider the juror's
         answers and demeanor to ascertain whether her state of
         mind will affect her deliberations.  The trial court's
         reasons for its ruling should be placed on the record.
         In concluding that a juror is grossly unqualified, the
         court may not speculate as to possible partiality of the
         juror based on her equivocal responses. Instead, it must
         be convinced that the juror's knowledge will prevent her
         from rendering an impartial verdict.

     In the present matter, the court did not question juror Lehouillier and
rested its discretion, in its own words, on the "remote possibility that she
might have some reason lurking in the background why she could not be
impartial, one way or the other."  Remote possibility is not enough to
support an exercise of discretion.  It was unclear from the in-chambers
conference with counsel and defendant whether a witness had been at a party
at the juror's home the night the alleged assault and robbery occurred.  The
personal connections between the juror and defendant, and between the juror
and some of the other witnesses in the case, were made clear from
questioning of Lehouillier prior to seating her on the jury and could not
have been the basis for discharge.  The court and counsel could have
examined the juror carefully as to her overall ability to serve impartially
on the jury in the event a connection to witness Burt had been
substantiated.  Discharge of the juror without an adequate inquiry by the
court and specific findings supporting the reason for the court's action
violated Chapter I, Article 10 of the Vermont Constitution.  Consequently,
the judgment based on the verdict in the case must be reversed and the
matter remanded for a new trial.  Our decision makes it unnecessary to
consider the other grounds raised by defendant.
     Reversed and remanded.

                                        FOR THE COURT:




                                        Chief Justice