State v. Sauve

STATE_V_SAUVE.94-670; 164 Vt 134; 666 A.2d 1164

[Filed 11-Aug-1995]

  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. 94-670


State of Vermont                                       Supreme Court

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

Larry Sauve                                            June Term, 1995



Mary Miles Teachout, J.

       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


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


       JOHNSON, J.   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 an 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 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, 493 A.2d 513, 521 (N.J. 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).(FN1)  The fairness ideal embodied in these laws has ancient roots. 
  People v. Richert, 446 N.E.2d 419, 420, 459 N.Y.S.2d 734, 735 (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, 460 N.Y.S.2d 572, 573 (App. Div. 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 limiting dismissals under such a law to situations involving
  want of prosecution or de minimis violations.(FN2)  Indeed, the State has not
  cited any jurisdiction that has applied a standard of review other than
  abuse of discretion when reviewing a trial court's decision whether to
  dismiss a case in the interest of justice.  But cf. State v. Swenson, 809 P.2d 1185, 1187 (Idaho Ct. App. 1991) (in reviewing Rule 48 dismissal,
  standard is whether trial court erred as matter of law).

       To the contrary, the case law from other jurisdictions indicates that
  trial courts have the discretion to dismiss prosecutions in furtherance of
  justice on a case-by-case basis when it would

 

  be fundamentally unfair to continue the prosecution.  Echols, 793 P.2d 
  at 1077.  Nevertheless, because of separation-of-powers considerations and
  the public's interest in the prosecution of those charged with criminal
  offenses, the trial court's discretion to dismiss cases in the interest of
  justice is necessarily limited.  Generally, trial courts may dismiss
  prosecutions in furtherance of justice against the wishes of the prosecutor
  only in rare and unusual cases when compelling circumstances require such a
  result to assure fundamental fairness in the administration of justice.
  State v. Brumage, 435 N.W.2d 337, 340-41 (Iowa 1989); see Abbati, 493 A.2d 
  at 521-22 (although prosecutor's discretion to reprosecute defendant is
  subject to power of court, trial court must defer to prosecutor's decision
  when fundamental fairness does not compel dismissal); State v. Hadsell, 878 P.2d 444, 446-47 (Or. Ct. App. 1994) (dismissal under
  furtherance-of-justice statute is reserved for "severe situations" because
  dismissal of charging instrument frustrates public interest in prosecution
  of crimes to promote protection of public and rehabilitation of offenders).

       The following factors are among those set forth in other
  jurisdictions, either by statute or judicial decision, for the trial courts
  to consider in deciding whether to dismiss a case in furtherance of
  justice: (1) the seriousness and circumstances of the charged offense; (2)
  the extent of harm resulting from the offense; (3) the evidence of guilt
  and its admissibility at trial; (4) the likelihood of new or additional
  evidence at trial or retrial; (5) the defendant's history, character, and
  condition; (6) the length of any pretrial incarceration or any
  incarceration for related or similar offenses; (7) the purpose and effect
  of imposing a sentence authorized by the offense; (8) the impact of
  dismissal on public confidence in the judicial system or on the safety and
  welfare of the community in the event the defendant is guilty; (9) the
  existence of any misconduct by law enforcement personnel in the
  investigation, arrest, or prosecution of the defendant; (10) the existence
  of any prejudice to defendant as the result of the passage of time; (11)
  the attitude of the complainant or victim with respect to dismissal of the
  case; and (12) any other relevant fact indicating that judgment of
  conviction would serve no useful purpose.  See N.Y. Code of Crim. Proc. §
  210.40(1); Brumage, 435 N.W.2d  at 341 (adopting factors applied in
  California and New

 

  York).  We agree that, where relevant, the trial court should consider
  such factors, which weigh the respective interests of the defendant, the
  complainant, and the community at large.

       The above factors overlap to some degree with guidelines set forth by
  jurisdictions holding that trial courts have authority to dismiss cases
  with prejudice following successive hung juries when reprosecution would
  violate precepts of fundamental fairness.  In Abbiati, for example, the New
  Jersey Supreme Court reversed the appellate court's refusal to uphold the
  trial court's dismissal of kidnapping and aggravated sexual assault charges
  following two hung juries, holding that the judiciary's interest in
  creating just remedies and in assuring the overall efficient administration
  of the criminal justice system provides the trial court with the authority
  to dismiss prosecutions following multiple hung juries.  493 A.2d  at 517. 
  The Court remanded the case for the trial court to consider the following
  factors in determining whether dismissal was the proper remedy: (1) the
  number of prior mistrials and the outcome of the juries' deliberations, if
  known; (2) the character of the prior trials in terms of length,
  complexity, and similarity of evidence presented; (3) the likelihood of any
  substantial difference in result in a subsequent trial, if allowed; (4) the
  trial court's own evaluation of the relative strength of each party's case;
  (5) the professional conduct and diligence of counsel, particularly the
  prosecuting attorney; (6) the seriousness of the offense; (7) the public's
  concern for the effective and definitive conclusion of criminal
  prosecutions; (8) the status of the defendant; and (9) the impact of
  retrial upon the defendant in terms of untoward hardship and unfairness. 
  Id. at 521-22; see Ex parte Anderson, 457 So. 2d 446, 450 (Ala. 1984)
  (listing similar guidelines); State v. Moriwake, 647 P.2d 705, 712-13 (Haw.
  1982) (same).

       Other courts have applied these or similar factors and reached varying
  results.  In State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978), the Tennessee
  Supreme Court affirmed the dismissal of an indictment for murder following
  three hung juries, observing that the trial court had the inherent
  authority to terminate the prosecution under the traditional notions of
  fair play and substantial justice when repeated trials resulted in
  deadlocked juries and the chances of future conviction were extremely
  unlikely.  The court cautioned, however, that the trial judge's

 

  discretion to dismiss a prosecution on such grounds ought to be
  applied "only in the most urgent circumstances."  Id.  Similarly, in
  Moriwake, the Hawaii Supreme Court affirmed the dismissal of an indictment
  for manslaughter after two hung juries, reasoning that judicial power is
  properly invoked when a trial court dismisses an indictment with prejudice
  following the declaration of one or more mistrials because of deadlocked
  juries, regardless of whether the defendant's constitutional rights are
  implicated.  647 P.2d  at 712; see also United States v. Ingram, 412 F. Supp. 384, 386 (D.D.C. 1976) (disallowing reprosecution of defendant
  following two hung juries in which twenty-one out of twenty-four jurors
  voted for acquittal); Anderson, 457 So. 2d  at 451-52 (affirming trial
  court's decision not to dismiss indictment on murder charge after three
  hung juries); Kirby, 460 N.Y.S.2d  at 573 (reinstating murder indictment
  after it had been dismissed by trial court following three hung juries).

       Without doubt, the repeated reprosecution of a defendant for the same
  crime following hung juries where no new evidence exists raises issues
  concerning traditional notions of fundamental fairness and substantial
  justice.  Repeated trials involving the same offense can frustrate the
  search for truth and the effective administration of justice by depleting
  the resources of the parties, by imposing hardships on witnesses, and by
  fostering the perfunctory presentation of stale testimony, the exaggeration
  of subtle differences in witnesses' recollections to challenge their
  credibility, and the tailoring of testimony based on the jury's perceived
  reaction in prior trials.  See Ingram, 412 F. Supp.  at 386.  On the other
  hand, the State, the victim, and the public at large all have an interest
  in obtaining a conclusive outcome in a criminal prosecution, particularly
  when a serious crime is involved.  See Anderson, 457 So. 2d  at 449.

       In reaching its determination regarding dismissal of a case following
  one or more hung juries, the trial court must generally defer to the
  prosecutor's decision to retry the case, but if fundamental fairness
  compels dismissal, the court is authorized to do so.  The court's authority
  to dismiss is not limited to particular reasons or types of cases.  In
  those cases where the State's evidence is adequate to survive a motion to
  dismiss for insufficient evidence, but one or more juries have refused to
  convict, the trial court must determine whether dismissal is compelled by

 

  weighing all the relevant circumstances and factors, many of which are
  listed above.  We decline to preclude dismissal following only one hung
  jury or to require dismissal after a particular number of hung juries.  Nor
  can we possibly outline all the circumstances in which dismissal would be
  appropriate.  The decision is left to the trial court's discretion, given
  the unique circumstances of each case.  Because the trial court is in a
  better position to weigh the relevant factors, we review its decisions
  under an abuse-of-discretion standard, keeping in mind that the trial
  court's discretion is itself limited by the deference it must normally give
  to the prosecutor's decision to retry a case.

                                  III.

       Considering the above guidelines and standards relative to the facts
  and circumstances of this case, we conclude that the trial court abused its
  discretion in granting defendant's motion to dismiss following the hung
  jury.  The court ruled that dismissal was required to serve the ends of
  justice because of (1) the possible effect on the victim of having to
  testify again; (2) the fact that the court would not change its evidentiary
  rulings, and thus the evidence would be unchanged at a second trial; and
  (3) the age of the evidence in the case.  Although the factors cited by the
  trial court are all relevant to its determination, they are outweighed by
  other relevant factors.

       The trial court's principal reason for granting defendant's motion to
  dismiss was the possible effect of retrial on the victim.  The court's
  concern for the victim is laudable, and we recognize that the court saw the
  victim testify firsthand; however, notwithstanding the trial court's
  comment that research shows that children are negatively affected by having
  to recount episodes of sexual abuse multiple times, there was no expert or
  other testimony by either party at the hearing on defendant's motion to
  dismiss regarding the possible effect on this particular victim of having
  to testify again.  Further, the prosecutor stated that another attorney for
  the State and the victim's advocate had met with Opal, and that Opal was
  ready to go forward with another trial despite her difficulty in
  testifying.  Finally, apart from the victim's desires, there remains the
  public's interest in a conclusive prosecution concerning very serious
  charges.

 

       The trial court stated that the State had failed to show that it was
  in Opal's interest or in the interest of society at large to continue
  prosecution of the case.  Assuming arguendo that defendant is guilty of the
  charged crime, society's interest in further prosecution is obvious.  In
  addition, the burden of setting forth factors sufficiently compelling to
  justify dismissal under Rule 48(b)(2) lies with defendant.(FN3)  See People
  v. Morrisey, 614 N.Y.S.2d 686, 693 (Crim. Ct. 1994). Defendant is the
  moving party claiming that the facts and circumstances compel dismissal by
  the trial judge, who must state the reasons for the dismissal in the event
  the motion is granted.  See V.R.Cr.P. 48(c) (trial court must state reasons
  for dismissal over objection of prosecutor).

       The trial court's other two reasons do not carry controlling weight. 
  First, even assuming the State's evidence remains essentially the same,
  which is open to some question,(FN4) there has been only one trial thus far,
  and the trial court denied defendant's motion for judgment of acquittal
  based on insufficiency of the evidence, both at the end of the State's case
  and at the end of the trial.  Thus, there is a reasonable possibility of
  conviction upon a second trial.  Second, the age of the evidence at a
  second trial is a relatively insignificant factor when one considers that
  the statute of limitations for sexual offenses against children was
  recently extended to permit prosecution to be commenced within the earlier
  of the date the victim attains the age of twenty-four years or six years
  from the date the offense is reported, 13 V.S.A. § 4501(c), and that
  defendant failed to show how he would be prejudiced by further delay.  Cf.
  State v. Delisle, ___



  Vt. ___, ___, 648 A.2d 632, 644 (1994) (fourteen-year delay in
  bringing indictment did not violate defendant's due process rights). 
  Considering the relevant factors, particularly the fact that there has been
  only one prior trial, the seriousness of the charged offense, the absence
  of any prosecutorial misconduct, and the lack of any showing of prejudice
  that would result to defendant from retrial, the court abused its
  discretion in dismissing the case with prejudice over the objection of the
  prosecutor.

       Reversed and remanded.

                            FOR THE COURT:

                            ________________________________________
                            Associate Justice


  -----------------------------------------------------------------------------
                              Footnotes

  FN1.  At least ten states besides Vermont have enacted a statute or
  implemented a criminal rule authorizing trial courts to dismiss criminal
  prosecutions sua sponte in furtherance of justice. Alaska R. Crim. P.
  43(c); Cal. Penal Code § 1385; Idaho R. Crim. P. 48(a)(2); Iowa R. Crim. P.
  27(1); Minn. Laws § 631.21; Mont. Code Ann. § 46-13-401; N.Y. Code of Crim.
  Proc. § 210.40; Okla. Stat. tit. 22, § 815; Or. Rev. Stat. § 135.755; Utah
  R. Crim. P. 25; Wash. R. Crim. P. 8.3.


  FN2.  The Washington Supreme Court has required a showing of arbitrary
  action or government misconduct before a trial court may dismiss a
  prosecution in the interests of justice.  State v. Blackwell, 845 P.2d 1017, 1022 (Wash. 1993).  Like other jurisdictions, we decline to limit the
  trial court to dismissals under those circumstances.  See State v. Brumage,
  435 N.W.2d 337, 340-41 (Iowa 1989).


  FN3.  Defendant argues that the burden was on the State to show a
  "manifest necessity" to be provided another opportunity to convict him. 
  This argument is misplaced.  The "manifest necessity" standard is
  applicable in cases where the defendant claims retrial would place him in
  double jeopardy.  "[W]ithout exception, the courts have held that the trial
  court may discharge a genuinely deadlocked jury and require the defendant
  to submit to a new trial."  Arizona v. Washington, 434 U.S. 497, 509
  (1978).  For the "manifest necessity" standard to be met, however, the jury
  deadlock must not be premature, such as when further deliberations might
  have produced a fair verdict.  Id.  In a case such as this, where the
  defendant has acquiesced in or failed to challenge the propriety of the
  trial court's declaration of a mistrial, the "manifest necessity" standard
  has been met.  See In re Anderson, 457 So. 2d 446, 449 (Ala. 1984).


  FN4.  We decline to address the multiple evidentiary issues
  collaterally raised in this appeal.