State v. Crepeault

State v. Crepeault  (96-523); 167 Vt. 209; 704 A.2d 778

[Filed 31-Oct-1997]


       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. 96-523


State of Vermont                             Supreme Court

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

Helen Crepeault                              September Term, 1997


Alan W. Cheever, J.

       Jan R. Paul, Essex County State's Attorney, St. Johnsbury, for
  plaintiff-appellee

       Charles S. Martin of Martin & Associates, Barre, for
  defendant-appellant

PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Gibson, J.
          (Ret.), Specially Assigned


       MORSE, J.   Defendant Helen Crepeault appeals her conviction by jury
  of sexually assaulting one of her sons when he was under the age of ten. 
  13 V.S.A. § 3253(a)(8).  She contends her conviction should be reversed for
  two reasons: (1) her motion for judgment of acquittal was mistakenly
  denied, and (2) the prosecution failed to disclose a conflict of interest.
  We reverse.

       This case began when defendant's son, J.C., revealed that defendant
  had sexually assaulted him on a regular basis starting when he was four
  years old and continuing until he was removed from defendant's home at the
  age of eleven and placed in the custody of the Department of Social and
  Rehabilitation Services (SRS).  He was fifteen at the time of trial. J.C.
  testified that defendant had repeatedly forced him to put his penis in her
  vagina, to lick her vagina, and to submit to her sucking on his penis. 
  According to the State, it was J.C.'s learning of defendant's pregnancy
  with her eighth child, and his concerns for the safety of the baby, that
  induced him to come forward.  J.C.'s older brother, P.C., like his other
  siblings, had also been

 

  removed from defendant's home and placed in SRS custody.  Before that time,
  however, he stated that he had witnessed defendant and J.C. repeatedly
  engaged in sexual intercourse and oral sex when J.C. was eight or nine
  years old.  Defendant testified on her own behalf, denying that she had
  ever sexually abused or threatened any of her children.

       The information charged defendant with four counts of aggravated
  sexual assault.  The first three counts alleged that defendant had
  committed certain specific sex acts with a minor under the age of ten,
  contrary to 13 V.S.A. § 3253(a)(8), and further alleged that the victim had
  been subjected to repeated nonconsensual acts as part of a common scheme
  and plan, in violation of 13 V.S.A. § 3253(a)(9).  The underlying sexual
  act alleged in the first count consisted of "forcing [the victim] to put
  his penis in her vagina"; in the second count, of "placing [defendant's]
  mouth on [the victim's] penis"; and in the third count, of "forcing [the
  victim] to put his tongue in her vagina."  The fourth count, unlike the
  first three, did not allege a specific sexual act, but rather charged
  defendant with having generally "committed a sexual act" upon a victim
  under the age of ten, and further alleged that defendant had threatened to
  cause imminent serious bodily injury to the victim, contrary to 13 V.S.A. §
  3253(a)(6).

       The theory underlying the information was apparently to convict
  defendant of aggravated sexual assault for having committed the three
  specific sexual acts alleged, with separate enhancements based upon the
  victim's age, the defendant's common scheme and plan, and the threat to
  cause imminent serious bodily injury.  Each of the first three counts
  contained the age and common-scheme enhancements.  The fourth count was
  apparently included for the purpose of adding the serious bodily injury
  enhancement, and included a generic charge of aggravated sexual assault to
  substitute for the specific sexual acts alleged in the first three counts.

       Special verdicts submitted to the jury attempted to track the
  information.  Each count was subdivided into two parts -- "A" and "B" --
  and a space for the jury to check "Guilty" or "Not Guilty" followed each
  subpart.  Part A of the first three counts alleged the specific sexual acts
  as set forth in the information, while Part B set forth the aggravating
  factor of repeated acts

 

  pursuant to a common scheme and plan.   Part A of the fourth count
  contained the general aggravated sexual assault allegation, while part B
  alleged the aggravating factor of serious bodily injury.  Thus the jury was
  essentially asked to make eight separate determinations of guilt or
  innocence.  Defendant specifically declined any lesser-included offense
  instructions.  The jury returned not guilty verdicts on parts A and B of
  count 1 (sexual intercourse), count 2 (fellatio), and count 3
  (cunnilingus), but guilty as to part A of count 4 (general sexual assault
  upon a victim under ten) and not guilty of Part B (threat to cause serious
  bodily injury).  Following the verdict, defendant moved for judgment of
  acquittal, arguing that the not guilty verdicts on counts one through three
  necessarily acquitted her of count four, which was premised upon the
  specific sexual acts set forth in the earlier counts.  The trial court
  denied the motion.  Defendant contends on appeal that this was error.  She
  also asserts, based upon newly discovered evidence, that the judgment must
  be reversed because of the prosecutor's failure to disclose a conflict of
  interest which tainted the proceedings.

                                     I.

       We turn first to defendant's contention that the court erred in
  denying her post-verdict motion for judgment of acquittal.

       Despite the use of the special-verdict form, it is readily apparent
  that the general charge of aggravated sexual assault in subpart A of count
  four was not submitted to the jury as a separate and independent offense. 
  It was based, rather, upon the assumption that defendant might be convicted
  of one or more of the sexual acts alleged in the first three counts, and
  was included solely to carry the additional serious-bodily-injury
  enhancement in count four. Although the State contests this interpretation
  of the verdict form, the record leaves no room for doubt.

       As noted, the only sexual acts charged in the information were
  intercourse, fellatio, and cunnilingus.  Defendant was acquitted of all
  three of these.  The affidavit of probable cause in support of the
  information was consistent with the charging document, describing only the
  three

 

  specific sexual acts set forth in counts one through three.(FN1)  The State's
  efforts at trial were similarly focused on establishing through the
  testimony of the victim and witnesses that defendant had repeatedly
  compelled J.C. to engage in sexual intercourse and oral sex.  In her
  closing argument to the jury, the prosecutor summarized the State's case by
  referring specifically, and exclusively, to the three sexual acts alleged
  in counts one through three:

    [Defendant] forced [the victim] to engage in sexual intercourse. 
    [Defendant] forced [the victim] to engage in oral sex.  She forced him to
    engage in oral sex on her body and she performed oral sex on him. 
    [Defendant] threatened this child that she would kill him or burn down the
    house unless he did what she wanted him to do.

       In her rebuttal argument, the prosecutor repeated the essence of the
  State's allegations, again referring solely to the specific charges in the
  first three counts:

    The question remains, how do you explain that [the victim's brother]
    testified that he saw it all happen. . . . [T]hink about what was happening
    to [the victim].  He was either being forced to have sexual intercourse
    with his mother; being forced to perform oral sex or receiving oral sex. .
    . . And I suggest to you that there is no possible way for these two boys
    to have gotten together to dream this up.

       Nowhere in the State's information, affidavit, or argument is there
  any allegation that defendant committed any prohibited sexual acts within
  the meaning of 13 V.S.A. § 3252(1) other than those set forth in counts one
  through three, of which defendant was specifically found to be not guilty. 
  Having thus been acquitted of the only specifically proscribed acts as to
  which she was charged and tried, it is axiomatic that defendant cannot have
  been simultaneously convicted of the same acts under the guise of a general
  charge.  Under these circumstances, the guilty verdict on the general
  charge of aggravated sexual assault was inconsistent with the prior
  verdicts and must be reversed.  See State v. Robar, 157 Vt. 387, 396, 601 A.2d 1376, 1381 (1991) (where trial record is legally insufficient to
  support guilty verdict, conviction must be reversed and judgment of
  acquittal entered).

 

       We can only assume that the jury's guilty verdict on the generic
  charge of aggravated sexual assault was in fact a "compromise" verdict,
  rendered not on the information and evidence actually presented, but on a
  general feeling that defendant must have been guilty of some wrongdoing. 
  There was certainly substantial evidence that J.C.'s home life was marked
  by extreme dysfunction, turmoil, and unhappiness, and this may well have
  led the jury -- despite being unconvinced of the truth of the specific
  allegations of sexual misconduct -- to find defendant guilty of something. 
  This was manifestly improper, nevertheless, and cannot be condoned in our
  system of justice.  See Edwards v. State, 34 So. 2d 173, 174 (Ala. 1948)
  (guilty verdict on lesser-included offense unsupported by evidence was "a
  compromise verdict which the law does not approve or contemplate").

       The State attempts to uphold the conviction on the theory that count
  four was actually intended to serve as a "catch-all" count for any sexual
  act not specifically charged but nevertheless proved at trial.  There are
  three flaws in this reasoning.  First, it is belied by the record, which
  reveals a consistent governmental focus -- from charge to verdict -- upon
  the specific sexual acts set forth in counts one through three.  Second, it
  overlooks the fundamental requirement that an information set forth "the
  essential facts constituting the offense charged." V.R.Cr.P. 7(b).  We have
  adopted a "common sense" approach to the notice requirement, State v.
  DeLaBruere, 154 Vt. 237, 276, 577 A.2d 254, 275-76 (1990), holding that the
  information may be read in conjunction with the probable-cause affidavit to
  determine its sufficiency.  State v. Brown, 153 Vt. 263, 272, 571 A.2d 643,
  648 (1989).  Here, neither the information nor the affidavit of probable
  cause gave any indication of the State's intent to rely on any sexual acts
  other than those specifically charged.  And finally, even if we were to
  overlook the notice deficiency, the evidence does not support the State's
  theory that the jury convicted defendant of uncharged sexual acts.   The
  only evidence cited by the State consists of isolated statements in J.C's
  testimony to the effect that defendant forced him to "touch her vagina." 
  It is unclear from the context whether the victim actually meant an
  "intrusion . . . into the genital . . . opening,"

 

  as the definition of "sexual act" requires.  13 V.S.A. § 3251(1).  The act
  was not charged and thus neither party was alerted to the necessity to seek
  clarification.  In any event, we are not persuaded that these few remarks,
  without more, were sufficient to sustain a conviction of aggravated sexual
  assault.

       As there was no valid basis for the verdict of guilt, it follows that
  the conviction must be reversed, and a judgment of acquittal entered. 
  Robar, 157 Vt. at 396, 601 A.2d  at 1381.

                                II.

       Normally our decision to reverse the judgment would render it
  unnecessary to reach defendant's additional claims.  We depart from our
  usual practice today in order to address an issue of particular concern not
  only to this Court, but in our view to the fundamental integrity of the
  bench, the bar, and the administration of justice in Vermont.

       The material facts are not in dispute.  In 1989, Tom Paul, a deputy
  state's attorney who assisted in this prosecution, represented defendant in
  a CHINS (child in need of support) proceeding concerning C.C., an older
  sister of the victim here.  Tom Paul represented defendant in the CHINS
  proceeding from the first hearing in December 1989 through the merits and
  disposition hearing in January 1990.  Tom Paul is the spouse and law
  partner of Jan Paul, the Essex County State's Attorney and the lead
  prosecutor in this case.  The law firm of Jan and Tom Paul had routinely
  represented parties in juvenile cases pursuant to a contract with the
  defender general.

       The disposition report prepared by SRS in the CHINS matter addressed
  not only C.C.'s individual problems and behavior, but also discussed family
  issues affecting defendant's other children.  An attached disposition
  report relating to an earlier SRS intervention in the matter of L.C.,
  another of J.C.'s sisters, provided substantial details concerning the
  family history, discussed relationships among the parents and children, and
  referred to allegations of prior sexual assaults against L.C.  Defendant
  was not a suspect in these assaults.  According to Tom and Jan Paul,
  neither of them realized that Tom had previously represented defendant
  until, in

 

  the course of preparing for the criminal trial, Jan came upon Tom's name in
  defendant's SRS files.  She immediately apprised Tom, who claimed that he
  had no recollection of defendant. Neither of the Pauls disclosed Tom's
  prior representation of defendant to defense counsel or to the court. 
  Defense counsel did not discover these facts until after trial.

       The prosecution's failure to disclose the fact of Tom's previous
  representation casts serious doubt upon the fairness of these proceedings. 
  Indeed, absent other grounds requiring reversal, we might be compelled to
  reverse the judgment on this basis alone.

       The ethical precepts that an attorney scrupulously avoid representing
  conflicting interests and maintain and preserve client confidences apply
  with equal force to a prosecuting attorney. State v. Miner, 128 Vt. 55,
  61-62, 258 A.2d 815, 819 (1969).  These principles require that a
  prosecutor refrain from participating in a criminal case against a former
  client in a matter involving the former representation.  See id at 62, 258 A.2d  at 819 ("Fidelity to these standards prohibits an attorney from
  engaging in a criminal proceeding against an accused he has formerly
  represented in the subject matter of the prosecution.").

       This Court has not had occasion since Miner to explore the subject of
  a prosecuting attorney's participation in a criminal case against a former
  client.  The issue has been extensively litigated elsewhere, however, and
  general rules have been developed and widely applied.  See generally
  Annotation, Disqualification of Prosecuting Attorney in State Criminal Case
  on Account of Relationship with Accused, 42 A.L.R.5th 581 (1996)
  (collecting cases); S. Brenner & J. Durham, Towards Resolving Prosecutor
  Conflicts of Interest, 6 Geo. J. Legal Ethics 415 (1993) (examines
  evolution of, and current standards governing, conflicts of interest
  resulting from prosecutor's prior representation of defendants).  Most
  states and federal courts today apply a standard derived from Rule 1.9 of
  the Model Rules of Professional Conduct. Under that provision, "[a] lawyer
  who has formerly represented a client shall not thereafter represent
  another person in the same or a substantially related matter in which that
  person's interests are materially adverse to the interests of the fomer
  client unless the former client

 

  consents after consultation."  Model Rules of Professional Conduct, Rule
  1.9(a) (emphasis added).

       "`Substantiality' is present if `the factual contexts of the two
  representations are similar or related.'"  Trust Corp. v. Piper Aircraft,
  701 F.2d 85, 87 (9th Cir. 1983) (quoting Trone v. Smith, 621 F.2d 994, 998
  (9th Cir. 1980)).  Thus, "determining whether an attorney's current
  representation involves a substantially related matter to that of a former
  client requires an analyis of the facts, circumstances, and legal issues of
  the two representations."  State ex rel. McClanahan v. Hamilton, 430 S.E.2d 569, 572-73 (W. Va. 1993).  Once a substantial relationship between the
  matters is found, "the court need not inquire into whether the attorney in
  fact received confidential information, because the receipt of such
  information is presumed." State v. Jones, 429 A.2d 936, 939-40 (Conn.
  1980), overruled on other grounds, State v. Powell, 442 A.2d 939 (1982);
  see also Smith v. Whatcott, 757 F.2d 1098, 1100 (10th Cir. 1985) ("Once a
  substantial relationship has been found, a presumption arises that a client
  has indeed revealed facts to the attorney that require his
  disqualification."); State v. Allen, 539 So. 2d 1232, 1234 (La. 1989) ("So
  long as the affected party can show that the matters involved in the
  previous representation are substantially related, . . . [t]he aggrieved
  party need not prove that [the lawyer] actually obtained confidential
  information."); McClanahan, 430 S.E.2d  at 573 ("Once the former client
  establishes that the attorney is representing another party in a
  substantially related matter, the former client need not demonstrate that
  he divulged confidential information to the attorney.").

       The purpose of the presumption is to avoid "`put[ting] the former
  client to the Hobson's choice of either having to disclose his privileged
  information in order to disqualify his former attorney or having to refrain
  from the disqualification motion altogether.'"  McClanahan, 430 S.E.2d  at
  574 (quoting Government of India v. Cook Indus., 569 F.2d 737, 740 (2d Cir.
  1978)); see also Smith, 757 F.2d  at 1100 (the presumption "`is intended to
  prevent proof that would be improper to make'") (quoting In re Corrugated
  Container Antitrust Litigation, 659 F.2d 1341,

 

  1347 (5th Cir. 1981)); Jones, 429 A.2d  at 940 ("The court cannot inquire
  into whether the lawyer did in fact receive confidential information during
  his previous employment . . . because . . . [that] . . . would destroy the
  very same confidences which [the rule] protects.").  In addition to
  safeguarding client confidentiality, the presumptive disqualification
  serves "to avoid any appearance of impropriety."  Smith, 757 F.2d  at 1100.

       These principles apply where the prosecutor has previously represented
  the defendant in a substantially related civil, as well as criminal,
  action.  See, e.g., Jones, 429 A.2d  at 940 (prosecutor disqualified from
  criminal prosecution of defendant whom he had represented twelve years
  earlier in personal injury action); Allen, 539 So. 2d  at 1235 (prosecutor's
  previous representation of defendant in bankruptcy proceeding disqualified
  him from subsequent prosecution of defendant for arson); Lykins v. State,
  415 A.2d 1113, 1115 (Md. 1980) (state's attorney disqualified from
  prosecuting defendant whom he had formerly represented in divorce action);
  McClanahan, 430 S.E.2d  at 574-75 (prosecutor's previous representation of
  defendant in divorce action disqualified him from participating in criminal
  prosecution for assault); see generally Annotation, supra, at 641-54
  (collecting cases).

       Applying these principles here, we are confronted with a patent
  conflict of interest.  The subject matter of Tom Paul's prior
  representation of defendant in the CHINS proceeding concerned defendant's
  parenting abilities and her relationships with C.C. and her other children.
  In the course of that representation, Tom could have been privy to any
  number of client confidences concerning defendant's treatment of the
  children.  Although the immediate focus of the criminal prosecution focused
  specifically on defendant's alleged sexual abuse of J.C., it also involved
  underlying questions relating to the nature of her relationships with all
  of her children and the extremely troubled family dynamics.  Indeed, the
  crux of the defense case was that J.C. had been physically abused by his
  father and had fabricated tales of sexual abuse by defendant out of
  resentment at her inability to protect him.  The prosecution's tactical
  ability to assess the credibility of the defense claims, and to decide
  which of J.C.'s seven siblings to call as

 

  witnesses, could have been informed by confidential communications between
  defendant and her former attorney.

       The conclusion that the two matters were substantially related,
  therefore, is self-evident. As such, we need not inquire into what, if any,
  confidential information in the prosecutor's possession may have worked to
  defendant's disadvantage, as that is presumed.  Jones, 429 A.2d  at 939-40. 
  Indeed, it is not our intention to explore the veracity of the prosecutor's
  representation that he had no independent recollection of the earlier CHINS
  proceeding.  That is not the issue.  Our concern is for the integrity of
  the legal process, which suffers as much from the appearance as the
  substance of impropriety.  See Sharplin v. State, 330 So. 2d 591, 594
  (Miss. 1976) (rule of presumptive disqualification is based not only on
  possible erosion of attorney-client privilege, but "draws upon the broader,
  more exacting ethical obligations . . . to avoid impropriety as well as the
  appearance thereof"). In a small rural state like Vermont, where multiple
  ties to a case are apt to occur, we must be especially sensitive to any
  appearance of conflict or bias.  Fair or not, it is not enough that our
  public prosecutors be ethical in fact. They must be above any suspicion of
  wrongdoing.

       We thus conclude that where, as here, the prosecuting attorney becomes
  aware that she or an associate has previously represented the defendant,
  there is a duty to disclose these circumstances to the court and defense
  counsel.  See Gray v. State, 469 So. 2d 1252, 1255 (Miss. 1985) ("Where a
  potential issue regarding disqualification exists, the proscution shares
  equally with the defendant the duty of bringing the matter to the attention
  of the trial court."). It is only through such disclosure that the trial
  court may explore the nature of the potential conflict to determine whether
  disqualification of the prosecutor or other steps may be necessary to
  ensure a fair and impartial trial.  It is not sufficient, as the State here
  urges, to disclose materials (the SRS files) containing evidence of the
  prior representation and assume that it will be discovered.  As the State
  concedes, the SRS files in this matter were voluminous, and it was far from
  certain that the defense would find counsel's name inconspicuously buried
  in the reams

 

  of reports, notes, and pleadings.  A criminal trial is not a game of
  hide-and-seek.  It is in no one's interest, least of all the State's, to
  withhold such information and put the entire proceeding at risk.

       Indeed, it is apparent that the prosecutor's conduct here tainted the
  proceedings and the judgment, possibly beyond repair.  We note that other
  courts have not hestitated to reverse a judgment of conviction where the
  prosecutor had previously represented the defendant in a substantially
  related matter.  See, e.g., Reaves v. State, 574 So. 2d 105, 107 (Fla.
  1991) (reversal of murder conviction required where prosecutor had
  previously represented defendant against grand larceny charges); Whitaker
  v. Commonwealth, 895 S.W.2d 953, 956 (Ky. 1995) (prosecutor's previous
  representation of defendant required reversal of murder conviction and
  remand for new trial ); Allen, 539 So. 2d  at 1235 (arson conviction
  reversed on basis of prosecutor's prior representation of defendant in
  bankruptcy proceeding); Sharplin, 330 So. 2d  at 594 (manslaughter
  conviction reversed on appeal because of prosecutor's previous
  representation of defendant in divorce proceeding).

       Because of our decision to reverse on other grounds, we are relieved
  of the necessity to consider whether reversal is compelled here by the
  prosecutor's previous representation of defendant in a substantially
  related matter.   We emphasize, nevertheless, our concern that such
  conflicts pose a substantial risk to the integrity of the bench and bar, a
  risk that prosecutors in future cases should not ignore, as was done here.

       Reversed.

                              FOR THE COURT:


                              _______________________________________
                              Associate Justice



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


FN1.  Although the affidavit further alleged that defendant had
  "played with [the victim's] penis until it became erect," this does not
  fall within the definition of "sexual act" for purposes of the sexual
  assault statute, and was not charged as such.  See 13 V.S.A. § 3251(1).