State v. Koveos

State v. Koveos  (98-248); 169 Vt. 62; 732 A.2d 722

[Filed 5-Feb-1999]



       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. 98-248


State of Vermont	                    Supreme Court

                                            On Appeal from
     v.	                                    District Court of Vermont,
                                            Unit No. 2, Chittenden Circuit

Emmanuel E. Koveos	                    September Term, 1998


James R. Crucitti, J.

       Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall
  Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

       Karen Shingler, Burlington, and Nathan Z. Dershowitz and Victoria B.
  Eiger of Dershowitz &   Eiger, P.C., New York, New York, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.  Defendant appeals from a judgment entered in the
  Chittenden District Court  on a jury verdict finding him guilty of lewd or
  lascivious conduct with a child in violation of 13  V.S.A. § 2602.  He
  seeks a new trial because: (1) one of the jurors who heard the case was not 
  qualified for service; (2)  the court admitted videotaped testimony of a
  particular witness; (3) the  court warned defendant that presentation of
  certain testimony would open the door to character  evidence under V.R.E.
  404(b); and (4) the trial judge had contact with jurors during their 
  deliberations without defendant or his counsel being present.  We conclude
  that all of these asserted  errors were either affirmatively waived or
  insufficiently preserved to require us to disturb the verdict. 
  Accordingly, we affirm.

       Defendant does not challenge the sufficiency of the evidence admitted
  at trial in support of  the verdict of guilty.  This evidence concerned an
  incident that took place on January 22, 1997 at the  Greek Orthodox church
  in Burlington, where defendant was serving as a priest.  Consistent with
  the 

 

  verdict, the evidence permitted the jury to find that defendant touched a
  12-year-old girl in a lewd  and lascivious manner while giving her a Greek
  lesson at the church.  Two other children, sisters  ages nine and eight,
  were also participating in the lesson.  Defendant testified at trial and
  stated, inter  alia, that he regarded the victim as his "grandchild" and
  never touched her with the purpose of  gratifying himself sexually.

       The jury was drawn on February 2, 1998, and the trial commenced that
  day.  The jury  returned its verdict four days later.  The trial court
  subsequently denied two defense motions for a  new trial and sentenced
  defendant on May 21, 1998 to incarceration of six months to five years,
  with  all but six months suspended in favor of probation.  Defendant filed
  a timely notice of appeal.  The  trial court denied defendant's motion for
  a stay of execution, a determination subsequently affirmed  by this Court.

       Defendant's first contention is that he is entitled to a new trial
  because the foreperson of the  jury was not a resident of Chittenden County
  as required by 12 V.S.A. § 64.  This statute provides  that a person is
  disqualified from serving on a jury if the person is not "a resident of the
  county."  Defendant first brought this issue to the attention of the trial
  court in his second motion for new trial  filed on April 6, 1998, two
  months after the jury returned its verdict.  The court thereafter conducted 
  an evidentiary hearing and determined that (1) the juror in question had
  been a resident of Chittenden  County when the jury pool was assembled in
  July 1997, (2) she moved to neighboring Franklin  County the following
  month, and (3) a jury questionnaire she filled out, received by the court
  on the  Thursday before the Monday on which she was chosen for the jury in
  this case, disclosed her change  of residence.

       For purposes of our analysis, we will assume that the juror in
  question would have been  disqualified from service had defendant raised
  the issue during jury selection.(FN1)  We hold that

 

  defendant has waived this issue by not raising it prior to the impanelment
  of the jury.

       Defendant rests his argument on two nineteenth century cases in which
  this Court held that  the qualification of individual jurors to serve could
  be challenged even post-trial if defendant did not  know of the
  disqualifying circumstances earlier.  See  Briggs v. Town of Georgia, 15
  Vt. 61 (1843)  (juror disqualified because he did not meet then-applicable
  requirement that he be a freeholder);   Quinn v. Halbert, 52 Vt. 353 (1880)
  (juror disqualified because he was not a citizen).  The rationale  is
  explained in Quinn:

    The defendant, by the Constitution, had the right to a trial by jury,
    which  means a legal jury, or a jury of those who could be lawfully called
    to act  in that capacity.  The defendant, not being made aware of the 
    disqualification until after the trial was closed, did not waive it. . . . 
    [I]n  the early case of Briggs v. Georgia, supra, this court held that such 
    objection was not waived by failure to challenge, and we think correctly. 
    The jurors, being elected in the manner already stated [i.e. by election 
    at town meeting upon nomination of board of civil authority], are presumed
    to be legal jurors, and under our practice it is rarely, if ever, that a
    juror has been asked whether he was an alien or a citizen.  At the present
    day, when in some portions of the country it is very difficult, under the
    laws as administered, to obtain well-qualified, intelligent jurors, we
    think there should be at least no forced construction of the statute that
    will lower the standard relative to their selection and qualifications. 
    Nor should a party having the right to a trial by jury be compelled to
    abide the result of a trial by others than legal jurors, unless he has
    knowingly submitted to such a trial. 


  Id. at 366-67.  As defendant emphasizes, we have never overruled Quinn
  by decision.


       The information available to challenge juror qualifications and the
  law on preservation of  challenges have, however, developed substantially
  since Quinn.  With the adoption of the Vermont  Rules of Criminal
  Procedure, we have specifically required that any challenges to prospective
  jurors  "for cause" be made before the jury is impaneled.  See V.R.Cr.P.
  24(b).  There is no exception from

 

  this requirement for statutory qualifications.  Criminal Rule 24 also
  authorizes parties and their  attorneys to examine prospective jurors prior
  to their selection.  See id. 24(a).  Moreover, we have  adopted jury
  selection rules that require prospective jurors to complete a questionnaire
  on their  qualifications for jury service.  See Rules on Qualification,
  List, Selection and Summoning of All  Jurors Rule 4(b) (1993).  Our general
  policy is now that "[t]he right to challenge a juror is waived  by a
  failure to object before the jury is impaneled if the basis for the
  objection is known or might,  with reasonable diligence, have been
  discovered during voir dire."  In re Nash, 158 Vt. 458, 467,  614 A.2d 367,
  372 (1991).  Once the jury is impaneled, the law presumes the jury is
  beyond  challenge.  See Lattrell v. Swain, 127 Vt. 33, 37, 239 A.2d 195,
  198 (1968).

       Our recent decisions reflect a strong policy against finding
  categories of errors as plain per se,  such that preservation is not
  required for appellate intervention.  See State v. Roy, 151 Vt. 17, 23, 
  557 A.2d 884, 888 (1989).  Consistent with this policy, we have overruled
  past decisions that have  recognized errors without preservation.  See
  State v. Loveland, 165 Vt. 418, 422, 684 A.2d 272,  275 (1996).

       We see no reason to ignore the general preservation requirement in
  these circumstances.  The  rationale of Quinn is no longer persuasive.  The
  decision was not reflected in the drafting of Criminal  Rule 24(b). 
  Moreover, as the facts of this case demonstrate, defendant had ample
  opportunity to  determine the facts he now believes are important.  By the
  date of the jury draw, the jury  questionnaire had reached the court.  If
  it had not been filed, defendant could have insisted on  compliance with
  the questionnaire requirement before going forward with jury selection, or
  asked  the qualification questions during voir dire.


       Because the challenge to the qualification of the juror was not made
  prior to the impanelment  of the jury, we review it only for plain error. 
  See V.R.Cr.P. 52(b).  "Plain error exists only in  extraordinary situations
  where it is obvious and strikes at the heart of defendant's constitutional
  rights  or results in a miscarriage of justice."  See State v. Forant, 167
  Vt. ___, ___, 719 A.2d 399, 401  (1998) (citation and internal quotation
  marks omitted).  Defendant has demonstrated no prejudice or 

 

  violation of his constitutional rights.  Because cases may be heard outside
  the circuit where the case  is filed, it is common for jurors to be
  residents of counties other than that in which the offense  occurred.  In
  examining a related issue, we have noted that people's attitudes do not
  "differ along  county lines."  Murphy, 134 Vt. at 109, 353 A.2d  at 349. 
  There is no plain error.

       Defendant's next claim of error relates to the admission of a
  videotape deposition of the elder  of the two sisters who had been present
  during the Greek lesson around which this case centers.   During discovery,
  defendant sought to depose the sisters but, acting pursuant to V.R.Cr.P.
  15(f)(2)  & (3), the trial court restricted the deposition to written
  questions submitted to the deponents'  attorney.  In seeking a protective
  order that would prohibit the depositions, the sisters' father  submitted
  an affidavit that stated that neither sister "has any personal first-hand
  knowledge material  to the proof of or defense to any essential element of
  any crime in which Mr. Koveos may or may  not have been involved."

       Following this ruling, the parties agreed that defense counsel could
  depose the older sister  as long as defendant was not present and the
  videotape could be used at trial in lieu of live testimony.  During her
  deposition, which was taken before a judge, the sister gave testimony that
  was highly  favorable to the State and, notwithstanding her father's
  affidavit, involved firsthand knowledge of  the events in issue.  Over the
  objection of defendant, the State used the video deposition at trial.

       Defendant's primary argument is that the trial court committed plain
  error in admitting the  deposition.  In defendant's view, he was denied his
  right to confront the witness because he was  prohibited from attending the
  deposition and because the deposition was used in lieu of the testimony  of
  an available witness.  We fail to see how the admission was error at all. 
  Defendant specifically  agreed to the procedure that allowed admission of
  the deposition, without the live testimony of the  sister.  Our rule
  authorizes the parties to agree on the "use of a deposition."   V.R.Cr.P.
  15(l).   Although defendant may have been misled to some degree by the
  father's affidavit, there is no  suggestion that the State participated in
  the misrepresentation of the sister's knowledge.  Defendant  took the risk
  that the testimony would be adverse.

       By motion in limine, made before trial, defendant also objected to the
  admission of parts of  the deposition, asserting that the testimony
  involved was hearsay, conclusory or speculative.   Although the trial judge
  believed that defendant had waived these objections by not raising them to 
  the judge presiding at the deposition, he nevertheless redacted some of the
  sister's testimony in a  ruling he described as preliminary.  As redacted,
  the video deposition was shown to the jury, and  defendant made no further
  objection to its contents.  On appeal, defendant argues that the deposition 
  contained answers that "were conclusory, speculative, based upon hearsay,
  and/or repetitions of  hearsay."  He also argues that any probative value
  in the evidence is far outweighed by the danger  of unfair prejudice to the
  defendant.

       The criminal rules incorporate the provisions of the civil rules on
  the necessity of objections  to the admission of deposition testimony into
  evidence.  See V.R.Cr.P. 15(i).  The civil rule requires  that certain
  objections be made at the time of the deposition: objections to the form of
  questions or  answers; and objections to any error "which might be
  obviated, removed, or cured if properly  presented."  V.R.C.P. 32(d)(3)(B). 
  Especially as to answers defendant is now claiming are  speculative or
  conclusory, we believe defendant had an obligation to make an objection, or
  motion  to strike, at the time of the deposition to give the witness an
  opportunity to reframe the answer.  See,  e.g., Kirschner v. Broadhead, 671 F.2d 1034, 1038 (7th Cir. 1982) (objection that answer was  unresponsive
  must be made at the deposition); Werre v. David, 913 P.2d 625, 633 (Mont.
  1996)  (objection that answer was conclusory must be made at time of
  deposition).


       An example of the deposition testimony to which defendant should have
  objected was the  witness's discussion of why she felt defendant's conduct
  with the victim constituted abuse.   According to the trial transcript, the
  witness agreed that the term "abuse" applied to defendant  rubbing the
  victim's back over a twenty-minute period because it made the victim
  uncomfortable and  upset.  Rather than asking that this characterization be
  stricken, defendant's lawyer used it to follow  up to obtain a more precise
  description of what the sister saw.  As a result of the term's repetitive 
  use, it became difficult for the trial court to edit the video.  In fact,
  at least in the edited video, it was