State v. Ashley

STATE_V_ASHLEY.92-563; 161 Vt. 65; 632 A.2d 1368

[Filed 08-Oct-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-563


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Franklin Circuit
 James E. Ashley
                                              June Term, 1993



 Edward J. Cashman, J.

 Jo-Ann L. Gross, Franklin County Deputy State's Attorney, St. Albans, for
   plaintiff-appellee

 Robert Paolini of Martin & Paolini, Barre, for defendant-appellant


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



     GIBSON, J.     James Ashley appeals from the trial court's denial of his
 motion for judgment of acquittal following convictions for violation of
 conditions of release, 13 V.S.A. { 7559(e) and V.R.Cr.P. 42, and obstruction
 of justice, 13 V.S.A. { 3015.  We affirm the obstruction-of-justice convic-
 tion, but reverse the conviction for violation of a condition of release.
      On October 3, 1991, defendant was arraigned on charges of sexually
 assaulting a minor.  The district court determined that defendant's future
 appearances could not be assured if he were released on personal recogni-
 zance or by an unsecured bond, and also found that he would pose a danger to
 the public.  The court issued a Conditions of Release Order, which required,

 

 among other things, that defendant post bail and that he "not associate with
 R.B., Lucille Brace, Sara Hughes nor personally contact, harass, or cause to
 be harmed R.B., Lucille Brace, Sara Hughes."  Defendant was unable to post
 bail and remained in custody.
      Between October 3 and November 17, 1991, defendant sent letters to
 Lucille Brace and made telephone calls to her.  On November 18, 1991, the
 State charged defendant under 13 V.S.A. { 7559(e) and V.R.Cr.P. 42 with
 violating a condition of his release when he contacted Lucille Brace by
 letter.  The State also charged obstruction of justice under 13 V.S.A. {
 3015, alleging that defendant endeavored to have Lucille Brace drop the
 sexual assault charges by intimidating her through threatening written and
 oral communications.  Subsequent to his trial on the sexual assault counts,
 defendant was tried and convicted for violating a condition of his release
 and for obstruction of justice.  He received a sentence of four to five
 years on the obstruction charge and a sentence of four to six months for the
 violation of a condition of release, to be served concurrently.
      Defendant appeals on three grounds from the trial court's denial of his
 motion for judgment of acquittal following the jury verdicts.  He claims,
 first, that a defendant can violate conditions of release only if he is
 actually released.  Second, he contends there was no obstruction of justice
 since by the terms of 13 V.S.A. { 3015 the intimidation must be by threat of
 physical force or it must result in actual deterrence of the witness's
 testimony, neither of which were proven by the State.  Third, he claims he
 was prejudiced by the trial court's admission of evidence referring to the
 underlying sexual assault charges.

 

      Our standard for reviewing the denial of a motion for judgment of
 acquittal is whether the evidence, viewed in the light most favorable to the
 State, was sufficient to convince a reasonable trier of fact that the
 defendant was guilty beyond a reasonable doubt.  V.R.Cr.P. 29; State v.
 Venman, 151 Vt. 561, 569-70, 564 A.2d 574, ___ (1989).
                                     I.
       The first ground of appeal requires us to decide whether conditions of
 release are enforceable when a defendant cannot post bail and remains in
 custody.  We look first to the plain meaning of the statute.  Wolfe v.
 Yudichak, 153 Vt. 235, 239, 571 A.2d 592, 595 (1989).  If the meaning is
 plain, we will enforce it according to its terms,  McSweeney v. McSweeney,
 ___ Vt. ___, ___, 618 A.2d 1332, 1334 (1992), giving effect to every word.
 See State v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980).  We will
 read operative sections of a statutory scheme in context and the entire
 scheme in pari materia.  Wolfe, 153 Vt. at 240, 571 A.2d  at 595.
      The authorization for conditions of release is set forth in 13 V.S.A.
 { 7554, which states, in relevant part:

             (a) Any person charged with an offense, other than an
           offense punishable by life imprisonment when the
           evidence of guilt is great, shall at his or her
           appearance before a judicial officer be ordered released
           pending trial in accordance with this section.
               (1) The person shall be ordered released on personal
           recognizance or upon the execution of an unsecured
           appearance bond . . . unless the judicial officer
           determines that such a release will not reasonably
           assure the appearance of the person as required.. . .
               (2) If the judicial officer determines that
           conditions of release imposed to assure appearance will
           not reasonably protect the public, the judicial officer
           may in addition impose the least restrictive . . . or
           the least restrictive combination of the following
           conditions which will reasonably assure protection of
           the public:
               . . . .

 

                  (C) Impose any other condition found reasonably
           necessary to protect the public, except that a
           physically restrictive condition may only be imposed in
           extraordinary circumstances.
               (3) A judicial officer may as a condition of release
           order that a defendant not harass or cause to be
           harassed a victim or potential witness.
      These provisions evince two primary concerns.  One concern is to assure
 the future appearance of the defendant before the court.  13 V.S.A. {
 7554(a)(1).  The other concern is for the safety of the public.  Id. {
 7554(a)(2), (3); see State v. Wood, 157 Vt. 286, 289, 597 A.2d 312, 313
 (1991).  The court has broad discretion in setting conditions of release,
 see State v. Parda, 142 Vt. 261, 263, 455 A.2d 323, 324 (1982), but a court
 may not use forfeiture of bail as a punitive measure to enforce other
 conditions of release.  State v. Cardinal, 147 Vt. 461, 465, 520 A.2d 984, 987 (1986).  A court may revoke the right to bail altogether, however, if
 it determines that no conditions of release will assure the defendant's
 appearance at trial, id., or if it finds that the defendant has violated
 certain conditions of release, among them the intimidation or harassment of
 a victim or potential witness.  See 13 V.S.A. { 7575(1); Wood, 157 Vt. at
 290, 597 A.2d  at 313.
      The statutory scheme unequivocally contemplates the release of an
 accused person who is awaiting trial.  13 V.S.A. { 7554(a) (person charged
 with offense "shall . . . be ordered released pending trial in accordance
 with this section") (emphasis added).  Our decisions confirm this intention.
 See, e.g., Wood, 157 Vt. at 289, 597 A.2d  at 313 ("imposition of bail in an
 amount that cannot be raised by an accused, in order to obtain his incarcer-
 ation, is precisely what the law forbids").

 

      Our reasoning in Wood reflects an understanding that the public safety
 provisions of 13 V.S.A. { 7554 are satisfied if a defendant remains in
 custody.  In that case, the trial court had imposed high bail for the
 purpose of preventing intimidation or harassment of the victim.  We held
 that this was an impermissible use of bail as a condition of release, since
 high bail "would only protect the victim and the integrity of the judicial
 process if it could not be met."  Id.  Subsequently, we examined 13 V.S.A. {
 7554 and the more recently enacted { 7575 in State v. Sauve, ___ Vt. ___,
 621 A.2d 1296 (1993), and our discussion there clearly shows our
 understanding that preventive detention is the last resort envisioned by the
 statutes.  Id. at ___, 621 A.2d  at 1301 (revocation of bail under 13 V.S.A.
 { 7575(3) inappropriate where court found only that complaining witness was
 "'in danger of contact by the defendant'").
       Defendant could not meet bail in this case and was in custody when he
 contacted Lucille Brace by letter and telephone.  He contends that no vio-
 lation of conditions of release could occur if he were still in custody,
 and therefore the State could not prove an essential element of its case.
 The trial court denied defendant's motion for judgment of acquittal,
 reasoning that the release condition was intended to safeguard the witness
 and must therefore apply regardless of defendant's custody status.
      The court was correct in stressing concern for the public safety.  We
 think, however, that the intent of the law is to protect the public from
 defendants who have been released from custody.  The word "release" would be
 superfluous under the trial court's construction of the statute.  In
 addition, the language of 13 V.S.A. { 7554(c), which states that "a warrant
 for [the defendant's] arrest will be issued immediately upon any such

 

 violation," cannot be harmonized with the trial court's reasoning.  The
 language makes sense only assuming the defendant is on release.
      The State, adopting the trial court's construction of the statute,
 notes that 13 V.S.A. { 7554(d)(2), which permits an appeal of conditions of
 release within five days, does not mention the custody status of a defend-
 ant, and contends that this indicates an intention that the conditions are
 to apply regardless of the custody status.  Similarly, the State argues that
 the separate penalty provisions of 13 V.S.A. { 7559(d) (penalty for failure
 to appear) and { 7559(e) (penalty for violation of condition of release)
 reflect an intent that a condition of release may be violated even if the
 defendant is not released.  We disagree.  When read in pari materia with the
 other statutory provisions, the omission of reference to a defendant's
 custody status in a particular subsection is not significant.
      Neither party has sought to survey the practices of other
 jurisdictions.  We note that other states have generally interpreted their
 bail and release laws in a manner consistent with the legislative intent we
 find in Vermont's statutory scheme.  See, e.g., State v. Ayala, 610 A.2d 1162, 1169 (Conn. 1992) (imposition of conditions of release is to assure
 appearance in court and safety of public); State v. Flores, 653 P.2d 875,
 877 (N.M. 1982) ("The whole purpose for 'conditions of release' is to place
 limitations on a person not in custody.") (emphasis in original).
      Federal decisions based on the Bail Reform Act are also consistent with
 our approach.  The ultimate safeguard envisioned by the Bail Reform Act is
 the detention of an accused person when no conditions of release will assure
 the public safety.  Courts have not held defendants liable for violations of
 conditions of release when they are already in custody.  See United States

 

 v. Tortora, 922 F.2d 880, 890 (1st Cir. 1990) (Bail Reform Act inapplicable
 to crimes defendant may commit in prison); United States v. Phillips, 732 F. Supp. 255, 267 (D. Mass. 1990) ("[T]he issue that must be addressed is
 whether the defendant's release would pose a danger to the community that
 would not exist if the defendant were held in pretrial preventive
 detention.") (emphasis in original).
      We are mindful of the trial court's concern for public safety, but do
 not think we need to read the statutes as the court did in order to find
 safeguards against intimidating contact by incarcerated defendants.  Such
 conduct is generally proscribed under 13 V.S.A. { 1701 (extortion and
 threats) as well as the obstruction-of-justice statute, 13 V.S.A. { 3015.
 The State charged the defendant with the latter crime and he was convicted.
      We hold that the State's evidence did not fairly and reasonably tend to
 show defendant's guilt on the charge of violation of a condition of his
 release when, in fact, he was still in custody at the time the alleged
 violation occurred.  For this reason, the court should have granted the
 motion for judgment of acquittal.
                                     II.
      Defendant next claims that the State failed to show that Lucille Brace
 was actually put in fear or deterred from testifying due to his written and
 oral communications.  He admits that the testimony established that Lucille
 Brace was "scared" by his communications, but argues that she could not
 "actually" have been in fear if she was undeterred from testifying.  This
 reasoning ignores the fact that one can very well be afraid, yet still
 carry on despite that fear.  In any event, defendant's claims are not in
 accord with the pertinent law.

 

      Vermont's obstruction-of-justice statute states, in relevant part, that
 "[w]hoever corruptly, or by threats or force, or by any threatening letter
 or communication, intimidates or impedes any witness . . . shall be
 imprisoned not more than five years or fined not more than $5000.00, or
 both."  13 V.S.A. { 3015.  In its charge to the jury, the court defined
 "intimidate" as "to make afraid or to force or to deter with threats or with
 violence."  Both the statute and the charge make it necessary only that the
 witness be made afraid or deterred, not that the witness be both afraid and
 deterred.  See United States v. Maggitt, 784 F.2d 590, 593 (5th Cir. 1986)
 (in prosecution for witness tampering under federal statute, it is not
 necessary to prove actual intimidation of witness, only that defendant
 endeavored to influence by threats); United States v. Murray, 751 F.2d 1528, 1534 (9th Cir.) (effort to prevent communication with law enforcement
 officer was sufficient; actual prevention not necessary to convict), cert.
 denied sub nom. Moore v. United States, 474 U.S. 979 (1985).  The evidence
 was uncontroverted that the letters and telephone calls from defendant did
 make the witness Lucille Brace afraid, and thus intimidated her.
      Defendant also misreads the statute in claiming that the jury would
 have to find there was a threat of physical force before it could render a
 guilty verdict.  The statute proscribes intimidating or impeding a witness
 "by threats or force"  13 V.S.A. { 3015 (emphasis added).  In his letters,
 defendant expressed in direct statements and by innuendo the possibility
 that his testimony and the testimony of others at trial would harm the
 witness's reputation and could result in her losing custody of her
 daughter.  These communications posed a threat to the witness even though
 they did not include physical harm or force.  See Black's Law Dictionary

 

 1480 (6th ed. 1990) (defining "threat" as "[a] communicated intent to
 inflict physical or other harm . . . .  A declaration of intention . . . to
 inflict punishment, loss, or pain on another").
      The State's evidence on the charge of obstruction of justice was
 sufficient to show that defendant had intimidated a witness in this case by
 his oral and written threats.  The trial court properly denied the motion
 for judgment of acquittal.
                                    III.
      Finally, defendant claims that the trial judge erred in allowing the
 State to introduce evidence of the underlying crime of sexual assault on a
 minor.  Discretionary rulings regarding the admission of evidence by a trial
 court judge will be upheld if there is a reasonable basis for the ruling.
 State v. Goodrich, 151 Vt. 367, 375, 564 A.2d 1346, 1351 (1989).
      The Conditions of Release Order signed by defendant indicated that the
 charges against him were for sexual assault on a minor.  In addition, the
 letters defendant wrote to Lucille Brace contained references to the events
 giving rise to the criminal charges against him.  Before the start of the
 trial, defendant objected to the admission of evidence alluding to the
 charges.  The record shows that the judge undertook a balancing analysis
 pursuant to V.R.E. 403 to determine if the probative value of the evidence
 was substantially outweighed by the danger of unfair prejudice.  He con-
 cluded that it was not and that the evidence was admissible since a jury
 could not determine whether the witness would be intimidated by the
 communications from defendant without considering the totality of the
 circumstances under which the communications were received.  We find no
 abuse of discretion in the judge's decision to admit the evidence.

 

      The conviction for obstruction of justice is affirmed.  The denial of
 defendant's motion for judgment of acquittal on his conviction for violation
 of a condition of release is reversed and judgment of acquittal is entered
 on this charge.




                                              FOR THE COURT:

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