State v. Hendricks
Annotate this Case
State v. Hendricks (2000-205); 173 Vt. 132; 787 A.2d 1270
[filed 16-Nov-2001]
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. 2000-205
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Thomas Hendricks November Term, 2000
David Suntag, J.
Dan M. Davis, Windham County State's Attorney, and Tracy Kelly Shriver, Deputy
State's Attorney, Brattleboro, for Plaintiff-Appellee.
William E. Kraham Brattleboro, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J. Defendant Thomas Hendricks appeals a jury conviction
for second degree domestic assault. Defendant claims that the trial court
erred in: (1) rejecting the plea agreement; (2) taking judicial notice of
family court proceedings between defendant and the victim; (3) admitting
prior bad acts evidence involving the same victim; (4) permitting the
jurors to take notes; and (5) issuing jury instructions. Defendant also
claims the trial court failed to give him credit for time spent in
custody. We affirm with respect to all claims except the last which is
moot. (FN1)
This case arises out of lengthy and volatile relationship between
defendant and Michele Lee (Ms. Lee or the victim), defendant's former
girlfriend of fourteen years. Defendant and Ms. Lee cohabitated, worked
together and had two children. On January 25, 1999, during an argument, Ms.
Lee claimed that defendant grabbed her by the throat and banged her head
against the wall. She stated that when she fought back, defendant pushed
her into the floor, and that when he let her go, she kicked him in the
groin. Ms. Lee left the residence, but returned later to pick up
medication and clothing. When she returned, she stated that defendant
knocked her down to the ground and choked her. A police officer who
interviewed Ms. Lee at the hospital emergency room noted that she was
"visibly upset," and that she had bruises on her neck and numerous
abrasions on the right corner of her mouth and on the right side of her
back.
Defendant's son told the police officer that he had observed the
couple fighting, and that he had intervened to separate them. Defendant,
however, stated that Ms. Lee had kicked him in the groin, bit his finger
and hit him in the head, and that he had merely pushed her away in
self-defense. Defendant had "a small laceration to the left pinky finger
and a lump on the top left side of the head."
The day after the alleged assault, defendant was arraigned on a charge
of second degree aggravated domestic assault, in violation of 13 V.S.A. §
1044(a)(2). (FN2) In April 1999, while the case was pending, defendant
was arraigned on new charges, including one felony count violation of an
abuse prevention order, and two misdemeanor counts for violating his
conditions of release. Defendant initiated contact with Ms. Lee by
sending her a thank you card.
On September 15, 1999, pursuant to a plea agreement, defendant entered
a guilty plea to the
felony charge for violating the relief from abuse order, and to one
misdemeanor count for violating his conditions of release. The State
agreed to dismiss the aggravated domestic assault charge and the second
misdemeanor charge of violation of conditions of release. The State also
agreed to recommend a sentence of eighteen to forty-two months, all
suspended except sixty days. Under the agreement, defendant would, at
sentencing, be free to argue for a lesser sentence.
On September 24, prior to the sentencing hearing, defendant was
charged with three felony violations of the abuse prevention order and one
violation of conditions of release. On September 15, defendant had
approached Ms. Lee outside of family court. The following day, the rear
window of Ms. Lee's friend's automobile was smashed while he was visiting
her at her home. Although there is no evidence that defendant smashed the
window, the next day defendant approached Ms. Lee at her home and said,
"Thank you for leaving your shades up so I know that he wasn't there."
Defendant subsequently contacted Ms. Lee by telephone on more than one
occasion, sent her flowers and a marriage application, and approached her
at her home several times.
At the October 1 sentencing hearing, the State attempted to rescind
its plea agreement. Defendant argued that the State and the court were
bound by the terms of the September 15th agreement. The court refused to
allow the State to withdraw from the plea agreement, but noted, "I haven't
accepted the plea agreement yet. I took [defendant's] plea, deferred
acceptance of the agreement and sentencing until we had the hearing." The
court also informed defendant, prior to the start of the hearing, that it
had taken judicial notice of family court files concerning defendant and
the victim. At the conclusion of the hearing at which both defendant and
the victim testified, the court rejected the plea agreement. The court
gave defendant the opportunity to withdraw his plea, which he chose to do,
and the aggravated domestic assault charge was set for trial.
At trial, the court issued preliminary instructions to the jury on the
essential elements of the offense, and instructed them on their ability to
take notes during the course of the trial. Defense counsel did not object
to either charge. The court provided jurors with pads and pencils,
permitted the jurors to take notes and use them during deliberations. The
court asked the jurors to destroy these notes after trial.
Following a one-day trial, at which the jury heard testimony from a
police officer, the victim, defendant, defendant's son and a neighbor,
defendant was found guilty of second degree domestic assault.
I.
Defendant first contends that he is entitled to specific performance
of the plea agreement under V.R.Cr.P. 11. Criminal Rule 11(e)(2)
provides:
[T]he court, before entry of the plea, may accept or reject the
agreement, or defer its decision as to acceptance or rejection
until there has been an opportunity to consider the presentence
report. The plea agreement shall not be binding upon the court
nor shall it limit the court in the judgment and sentence to be
imposed unless the court accepts the plea agreement under
subdivision (e)(3) of this rule.
Rule 11(e)(3) requires the court, upon accepting the plea, to "inform the
defendant that it will embody in the judgment and sentence the disposition
provided for in the plea agreement or a less onerous disposition."
V.R.Cr.P. 11(e)(3). The next subsection provides that:
If the court rejects the plea agreement or defers decision upon
it, the court shall inform the parties of this fact, advise the
defendant personally in open court that the court is or may not
be bound by the plea agreement, pursuant to Rule 32(d) afford a
defendant who has already pleaded the opportunity to then
withdraw his plea.
V.R.Cr.P. 11(e)(4).
Defendant contends that the court accepted the plea agreement at the
September 15th hearing. However, the court, after finding the pleas to be
knowing and voluntary, stopped short of accepting and entering judgment on
them. Defendant cites to the court comment that the State's sentence
recommendation is "the worst that could happen to you at the sentencing
hearing," in order to establish that the pleas were accepted. However,
the court also stated "[t]his isn't settled until we come back and do the
sentencing," and thereby clearly deferred acceptance pending a sentencing
hearing.
We have previously rejected the argument that acceptance of the plea
agreement must be presumed unless the court explicitly rejects the
agreement or defers its decision. State v. Delisle, 162 Vt. 293, 300, 648 A.2d 632, 641 (1994). While we reiterate that it is "better practice" for
the court - when it intends to defer a decision as to rejection or
acceptance of a plea agreement until there has been an opportunity to
consider the presentence report - to explicitly say so, we have not always
required courts to follow subsection 11(e)(4) to the letter. See e.g., id.
On the basis of this record, we cannot find that the court accepted the
plea agreement, nor will we presume, as a matter of law, that it did.
Accordingly, we reject defendant's assertion that he is entitled to
specific performance of a plea agreement that the court did not accept.
II.
Defendant next contends that the trial court erred because, prior to
sentencing, it reviewed family court files concerning defendant and the
victim, "without prior notice to the parties." Defendant's claim is
premised on an inaccurate factual representation. In fact, the court
specifically advised the State and defendant that it would be reviewing
relevant family court files prior to sentencing. The court stated,
[y]ou should also know . . . I've also called for the Family Court
files up here so I'd have a chance to look at those records. . .
. the rule requires that you know whatever it is I'm looking at.
. . . you may want to take a look at this, unless you're aware of
what's in there. . . . If you do want to take a look at them, and
then because of what's in there you want more time, you can tell
me that too.
Defendant concedes that he neither accepted the court's invitation to
take the time to review the materials, nor objected to the court's review
of them. Because defendant failed to object, he must demonstrate that the
court committed plain error in order to prevail. V.R.Cr.P. 52(b); State v.
Forant, 168 Vt. 217, 219, 719 A.2d 399, 401 (1998). "Plain error will be
found only in rare and extraordinary cases where the error is obvious and
strikes at the heart of defendant's constitutional rights or results in a
miscarriage of justice." State v. Streich, 163 Vt. 331, 353, 658 A.2d 38,
53 (1995).
Defendant's plain error theory apparently rests on the assumption that
the court's review of the family court files caused it to reject a plea
agreement that it was otherwise bound to accept. Even if we assume review
of the family court files was error, it cannot plausibly be maintained that
the error was "plain" where the court was not bound to accept the plea
agreement in the first instance. Moreover, there was ample evidence,
apart from the family court records-including the victim's testimony,
defendant's criminal record, and the fact that he was charged with felony
violation of an abuse prevention order and violation of his conditions of
release between the plea and sentencing hearings-to support the court's
decision to reject the plea agreement. Defendant's claim of plain error
is without merit.
III.
A. Bad Acts Evidence
Defendant next claims that the court erred in admitting prior bad acts
evidence that should have been proscribed under V.R.E. 404(b) and 403.
"We will reverse the trial court's decision to admit this evidence only if
the court withheld or abused its discretion . . . and a substantial right
of defendant was affected by the alleged error." State v. Kelley, 163 Vt.
325, 328, 664 A.2d 708, 710 (1995).
Prior to trial, the State gave notice to defendant of its intent to
utilize prior bad act evidence pursuant to V.R.E. 404(b). Specifically,
the State sought to use two previous incidents of physical violence
between defendant and the same victim. One incident (the 1993 assault)
resulted in defendant's conviction, and satisfied one element of the
current charge under 13 V.S.A. § 1044(a)(2), requiring a prior domestic
assault conviction. The second incident (the 1997 assault) constituted
uncharged misconduct alleging that defendant assaulted the victim in front
of their daughters by beating her head into the ground. The State
asserted that the evidence of defendant's prior bad acts of domestic
violence was admissible to show the context in which the violence between
defendant and Ms. Lee took place, and as a response to defendant's
anticipated claims of self-defense and accidental injury. Defendant filed
a motion in limine to bar the use of the uncharged misconduct evidence.
While conceding that "[t]here will be a defense that approaches a
self-defense concept," defendant claimed the introduction of prior
uncharged misconduct evidence would impermissibly establish that defendant
had a propensity for assaultive conduct. Prior to the start of trial on
November 4, 1999, the court heard argument from the parties on defendant's
motion in limine, and denied defendant's motion, thus permitting the State
to introduce evidence of the 1993
and 1997 incidents. (FN3)
In denying defendant's motion, the trial court explained, "I think
those two prior incidents, aside from the fact one is really an element of
the crime, the conviction itself, but more than the conviction the facts
as described to me now . . . are admissible under Sanders for context
purposes." We agree. In State v. Sanders, 168 Vt. 60, 62, 716 A.2d 11,
13 (1998), we held that prior domestic assaults may be properly admitted
to give context to a domestic violence charge because "[a]llegations of a
single act of domestic violence, taken out of its situational context, are
likely to seem incongruous and incredible to a jury." (internal citations
omitted).
This case presents exactly the circumstances to which the reasoning of
Sanders applies. The jury was presented with a single act of domestic
violence. Defendant asserted that his actions during the incident were in
self-defense, and that injuries to the victim occurred either in defending
himself or as a result of the victim's previous accidental fall.
In reviewing the trial court's admission of evidence under Rule
404(b), we must determine whether the evidence was relevant and material
to the action. Sanders, 168 Vt. at 62, 716 A.2d at 13. Here the
introduction of two prior instances of defendant's abuse of the same victim
was not to show defendant's propensity to commit such abuse, but rather,
"to provide the jury with an understanding of defendant's actions on the
date in question." Id.
Upon deciding the evidence of prior bad acts is relevant and material,
we must then determine whether the trial court abused its discretion in
deciding that the introduction of such evidence was more probative than
prejudicial under V.R.E. 403. Although "[e]vidence tending to
inculpate the defendant always carries with it some prejudice," Kelley,
163 Vt. at 329, 664 A.2d at 711, the trial court did not abuse its
discretion by deciding that the evidence in question was more probative
than prejudicial.
B. Bad Acts Instruction
Defendant also claims that the court did not give a proper limiting
instruction regarding the prior bad acts. Specifically, defendant
contends that the court did not properly instruct the jury: (1) that the
State bore the burden of proving by a preponderance of the evidence that
defendant committed the prior bad acts; (2) that the jury may not consider
the evidence as tending to show defendant's character, or that he acted in
conformity with that character in committing the alleged crime; or, (3)
the limited purpose for which the prior bad acts were admitted.
The court offered to "take any . . . language" suggested by counsel at
the charge conference for the final charge. In its final charge, the
court instructed:
Evidence has been introduced in this case concerning allegations
of prior violent incidents between the Defendant and [victim].
You should distinctly understand that the Defendant is not on
trial for any actions other than the charged offense. This other
evidence was permitted to be introduced only for you to consider
the context of the relationship between the Defendant and
[victim] out of which the present allegations arose.
Because defendant did not object to the court's instruction after the
charge, nor request specific language, we review the court's determination
under the plain error standard. V.R.Cr.P. 52(b); see also State v.
Holcomb, 156 Vt. 251, 256, 590 A.2d 894, 897 (1991) ("failure to give a
limiting instruction . . . in the absence of a request or objection, will
be grounds for reversal only on a finding of plain error.")
In State v.Wheel, 155 Vt. 587, 603, 587 A.2d 933, 943 (1991), this
Court adopted the United
States Supreme Court holding that "evidence of prior bad acts may be
admitted for the purposes stated in Rule 404(b) without a preliminary
finding by the trial court that the act actually occurred." (citing
Huddleston v. United States, 485 U.S. 681, 688 (1988)). In fact, the trial
court's determination is limited to finding "whether there is sufficient
evidence for the jury to reasonably conclude that the prior act took
place," not that "the act took place by a preponderance of the evidence."
Wheel, at 603-4, 587 A.2d at 943 (citing Huddleston, 485 U.S. at 690).
There is thus no requirement that the State prove the commission of the
prior acts by a preponderance of the evidence.
The trial court's charge on the prior bad acts evidence limits its use
to "the context of the relationship between the Defendant and [victim] out
of which the present allegations arose." Although the court did not
specifically include language regarding character evidence, its charge
defined the limited scope for which the evidence was to be used. We find
no plain error here, where the court admitted prior bad acts evidence to
show context, and issued limiting instructions requiring jurors to
consider it for that purpose alone. See Holcomb, 156 Vt. at 256, 590 A.2d
at 897 (general charge limiting consideration of the alleged act is
sufficient).
IV.
Defendant next argues that it was plain error for the trial court to
permit the jury to take notes. As both parties concede, there is no
statute, judicial decision or procedural rule in Vermont expressly
prohibiting or permitting juror note-taking. However, we note that a
majority of jurisdictions "have held that the decision to permit jurors to
take notes should be left to the sound discretion of the trial court."
People v. Hues, 704 N.E.2d 546, 548 (N.Y. 1998) (listing numerous federal
and state appellate court decisions); see also Corti v. Lussier, 140 Vt.
421, 423, 438 A.2d 1114, 1115 (1981) (noting endorsement of juror
note-taking by the American Bar Association, Standards for Criminal
Justice, Standard 15-3.2 and Comment, Taking Note of Note-Taking, 10
Colum. J. L. & Soc. Prob. 565, 587 (1974)).
In its decision to permit juror note-taking at the discretion of the
trial court, the Hues court required cautionary instructions both at the
start and conclusion of a trial, reminding jurors about the potential
distraction of taking notes, and over-reliance on one's notes or on the
opinion of another juror who took notes. Hues, 704 N.E.2d at 549-50. The
court further suggested that instructions should remind the jury of the
availability of the court's verbatim transcript as a preferable record.
Id. at 550.
In the instant case, the court's preliminary and closing instructions
included the recommendations suggested by the court in Hues. The court
stated:
You may take notes during the trial if you wish. Pads and pencils
will be made available. You may also have those notes with you
when you deliberate at the end of the case, however please be
cautious of the following: [i]t is possible that you may miss
hearing some testimony if taking notes at the time. Watching a
witness as he or she testifies and noting the demeanor of the
witness is something you may consider in determining the
credibility of that witness. Lastly, when in deliberations at
the end of the case, do not rely on the recollection of a juror
who took notes about the testimony of a witness solely because
the juror took notes. As we all know, notes can be wrong. Keep
in mind that every word spoken in the courtroom is recorded
verbatim and can be replayed for you during deliberations if
necessary.
There was no error, much less plain error.
V.
In his final claims, defendant contends that the court erred in
refusing to instruct the jury with regard to the credibility of police
witnesses, and in instructing the jury on the essential elements of the
offense prior to trial. We note, in evaluating these claims, that jury
instructions fall within the ambit of the trial court's discretion. Knapp
v. State, 168 Vt. 590, 591, 729 A.2d 719, 720
(1998)(mem.).
At trial, defendant requested an instruction as to the credibility of
a police officer's testimony. The court declined to instruct the jury
specifically as to the weight to be accorded to a police officer's
testimony, but included in its charge language regarding the credibility of
witnesses generally. It stated:
It is not the quantity of witnesses that should determine your
decision, but rather the quality of their testimony. You can
believe all that a witness says or you can believe part of it or
you can disbelieve all of it . . . Keep in mind that how much
weight to give the testimony of any witness is entirely your
decision.
Defendant did not object to this instruction after the charge. We find no
abuse of discretion in the court's charge to the jury regarding the
credibility of witnesses.
Defendant cites no authority for the proposition that it is improper
for a court to issue preliminary instructions to the jury on the essential
elements of the offense, and concedes that due to his failure to object,
we must review the court's instruction for plain error. Defendant's
argument does not raise a meritorious claim of error, much less plain
error.
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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Footnotes
FN1. At oral argument, the State conceded that the trial court had failed
to award defendant credit for time served to which he was entitled
pursuant to 13 V.S.A. § 7031(b), and subsequently the parties entered into
a stipulation in which defendant was awarded appropriate credit.
FN2. Defendant had a prior domestic assault conviction, entered in November
1993, and two convictions for violation of an abuse prevention order, in
1993 and 1994, incidents all involving Ms. Lee.
FN3. Defendant stipulated to the 1993 conviction of domestic assault but
sought to bar testimony about the facts.
------------------------------------------------------------------------------
Concurring
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. 2000-205
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Thomas Hendricks November Term, 2000
David Suntag, J.
Dan M. Davis, Windham County State's Attorney, and Tracy Kelly Shriver, Deputy
State's Attorney, Brattleboro, for Plaintiff-Appellee.
William E. Kraham Brattleboro, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J., concurring. The concurring opinion of Justice Skoglund
prompts this additional concurring opinion on the important question of
the scope of the character evidence rule of V.R.E. 404 in domestic assault
criminal cases. Although I am concerned that the prohibition on the
misuse of character evidence as expressed in V.R.E. 404(a) should not be
undermined by the use of specious alternative rationales for admission, I
do not believe that concern should govern in the narrow circumstances of
the admission of prior incidents of domestic violence with the same victim
as testified to by that victim. Thus, I cannot join in Justice Skoglund's
call that we reject the reasoning of State v. Sanders, 168 Vt. 60, 716 A.2d 11 (1998) or that we amend V.R.E. 404 to adopt the Sanders holding in
the evidence rule.
At the outset, I believe that following Justice Skoglund's analysis
requires us to overrule State v. Sanders, a very recent unanimous opinion
of this Court. Although Justice Skoglund points out two possible
alternative rationales for Sanders, neither is adopted by the opinion. The
first is that the prior bad act evidence was relevant to show that the
victim felt intimidated and threatened by defendant's action. We
explicitly decided not to reach or ground the decision in Sanders on that
rationale. See 168 Vt. at 62, 716 A.2d at 13. The second is that the
evidence was admissible because the victim in Sanders recanted her
statement describing the domestic assault for which defendant was charged.
In fact, the Sanders opinion indicates that the victim recanted only her
statements about the prior abuse. Id. at 61, 716 A.2d at 12. Although we
discussed the recantation evidence as supporting the context rationale, it
would not make sense to read Sanders as allowing evidence of prior bad
acts only if the victim recants her statement that the prior bad acts
occurred.
I believe that Sanders is a narrow opinion, as I discuss below. For
three reasons, I would not overrule it.
First, the evidence here and in Sanders is "character" evidence only
in the broadest sense of the word. It shows only that defendant has a
violent relationship with this victim. See generally 22 Wright & Graham,
Federal Practice & Procedure: Evidence § 5233 (1978 & Supp. 2001)
(discussing alternative definitions of character). It is not intended to
show that defendant is violent generally or that he is violent in
relations with women generally. Thus, we noted in Sanders that the "purpose
of establishing defendant's history of abusing the victim is not to show
his general character for such abuse, but to provide the jury with an
understanding of defendant's actions on the date in question." 168 Vt. at
62, 716 A.2d at 13.
I note there is a tendency here to confuse propensity evidence with
character evidence. We
could say that a bank robber has a propensity to rob banks with lots of
money, rather than a broke savings and loan, but we would not call that a
character trait. Rule 404(a) restricts character evidence and not
propensity evidence. Rule 404(b) does prohibit propensity evidence but
only in instances where the evidence shows a character trait. See V.R.E.
404(b) (evidence of other wrongs is inadmissible to "prove the character
of a person in order to show that he acted in conformity therewith"). If
our evidence rules prohibited all propensity evidence, some of the most
important and probative evidence in many criminal trials would be
excluded.
Second, as the concurring opinion points out through its citation to a
number of law review articles, acts of domestic violence rarely occur in
isolation, and Sanders is specifically limited to domestic violence cases.
More important, jurors know this dynamic. They understand that after
fourteen years together, a couple does not get into an extremely violent
episode in which the husband is banging the wife's head against the wall
solely because of a dispute over her screening his calls and with no
history of such actions. In the jurors' experience, the event they are
hearing about is highly unlikely without a context. If we exclude the
context evidence, we invite the jurors to speculate over the real cause of
the dispute, and they may speculate that she did something to "deserve"
his retaliation under the circumstances or that she exaggerated the nature
and severity of his violence. As Sanders points out, the lack of context
is a particular problem in the all-too-frequent situation where she
recants her claim that he battered her in the instance before the court.
168 Vt. at 63, 716 A.2d at 13.
I do not believe we face the same circumstances for most other crimes.
I doubt there is a serious risk that jurors will speculate that a bank
robbery did not occur, because they haven't heard about others. Even with
a well-known DUI recidivism problem, I doubt that jurors' deliberation is
affected by lack of evidence about prior incidents. It is no accident that
advocates for battered women are particularly seeking a broad policy of
admissibility in this area. See L. De Sanctis, Bridging the Gap Between
the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale
J.L. & Feminism 359 (1996); Comment, Beating Again and Again and Again: Why
Washington Needs a New Rule of Evidence Admitting Prior Acts of Domestic
Violence, 75 Wash. L. Rev. 973 (2000); Comment, The Search for the Truth:
Admitting Evidence of Prior Abuse in Cases of Domestic Violence, 20 U.
Haw. L. Rev. 221 (1998).
Finally, admission here does not seriously raise the risk of abuses
underlying Rule 404(a). The risk is that the jury will give undue weight
to evidence of prior criminal conduct and convict on the offense before
them because the defendant is shown to be the type of person who would
commit the crime, or to punish for the prior, uncharged, behavior. See 22
Wright & Graham, supra, § 5239, at 436-38. This case is a swearing
contest between the victim, with the physical evidence on her side, and
defendant. All depends on the relative credibility of the parties to the
events. It is logically possible, but highly unlikely, that the jury
would believe the victim about the prior violence, disbelieve her about
the violence involved in the charge before it, but convict defendant anyway
because he is a bad actor who must have done something or because the jury
wants to punish him for the prior violence. If the jury is unlikely to
misuse the evidence in this way, it makes no sense to exclude it.
On the other hand, excluding the evidence leads to an inadequate
credibility determination. The jury knows that the victim is not telling
all she knows and may determine she lacks credibility because of the
incompleteness of the testimony. As we noted in Sanders, a single act of
domestic violence taken out of its situational context is likely to be
seen as incredible.
I recognize that the calculus may be different when the state offers
an additional witness to prove the prior uncharged misconduct. As we held
in State v. Winter, 162 Vt. 388, 401, 648 A.2d 624, 632 (1994), that
situation should be addressed by applying V.R.E. 403, evaluating the
State's need for the additional witness in light of the other evidence and
the likely effect on the trial.
I think State v. Sanders is correctly decided. I would not overrule
it.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Concurring
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. 2000-205
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Thomas Hendricks November Term, 2000
David Suntag, J.
Dan M. Davis, Windham County State's Attorney, and Tracy Kelly Shriver, Deputy
State's Attorney, Brattleboro, for Plaintiff-Appellee.
William E. Kraham, Brattleboro, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J., concurring. I concur with the majority's opinion but
write separately to express my concerns about its justification for
admitting evidence of defendant's prior assaults on the victim. I believe
that the prior assaults were admissible to refute defendant's claims of
self-defense and accidental injury to the victim. However, I do not
believe that they were admissible in this case to provide "context" for
the charged offense. In all other respects, I join the majority's opinion.
In response to the State's motion to admit the prior assaults, defense
counsel acknowledged that "we will probably be getting into some issue of
self-defense." That turned out to be an understatement. In his opening
argument, defense counsel told the jurors that "the heart of this case" is
"whether or not a man who is kicked in the groin acts recklessly in trying
to get the person who
kicked him away and to leave that scene." Defense counsel also told the
jurors that the injuries the victim claimed defendant had inflicted upon
her, for which she received emergency room treatment, were actually
incurred the day before the incident when the victim fell down while trying
to assist an infirm defendant into the house. Defendant's trial testimony
was consistent with these statements, depicting the victim as the
aggressor during the incident in question and claiming that his hand made
contact with the victim's mouth only when he raised it in an effort to
deflect her blows.
Evidence Rule 404(b) prevents the introduction of other crimes, wrongs
or acts to prove the character of a person, and to suggest that, with
respect to the charge the defendant is facing, he or she acted in
conformity with that character - he did it before; therefore, he must have
done it this time. If bad acts are admitted to show only some propensity
to commit the charged offense, they are unequivocally inadmissible. The
rule permits the admission of such evidence, however, if it is probative
of any other fact that is of consequence to the determination of the case,
such as intent, plan, opportunity, identity or absence of mistake or
accident. The controlling question is "whether the evidence is relevant .
. . 'does it tend to prove any fact material to the issues in the case?'"
State v. Catsam, 148 Vt. 366, 380-81, 534 A.2d 184, 194 (1987) (quoting
State v. Howard, 108 Vt. 137, 152, 183 A. 497, 504 (1936)). And, if
relevant, does its probative value substantially outweigh its prejudicial
effect? V.R.E. 403.
Here, I see no reversible error in the trial court's decision to admit
the evidence, given the positions defendant took at trial. Evidence of
the prior assaults on this victim were relevant to refute claims of
accident or self defense. See State v. Elvin, 481 N.W.2d 571, 575 (Minn.
Ct. App. 1992) (evidence of prior assaults against same victim admissible
to refute defendant's claim that injuries were caused by accident); Wilson
v. State, 14 P.3d 912, 918-19 (Wyo. 2000) (evidence of prior bad acts
against domestic assault victim admissible to refute claims of self-defense
or accident).
Defendant put the claim of self-defense and accidental injury in issue, and
thus made the evidence of his prior assaultive behavior relevant. (FN1)
Admittedly, the evidence strikes fairly close to demonstrating a
character trait of the defendant to abuse his wife. Yet this fact alone
does not make it inadmissible. If, as here, the evidence is properly
offered for a permissible purpose, then it need not be excluded simply
because it also implicates the character of the accused.
I do not accept, however, the majority's position that the prior
assaults were admissible to provide "context" for the charged offense. In
reaching this conclusion, I recognize that there is a trend across the
country toward leniency in admitting prior assaults against victims of
domestic violence because of the nature of the crime and the difficult
proof problems posed by conflicting accounts of domestic violence.
Domestic abuse is a prevalent crime with a high recidivism rate; yet, the
offense often goes unreported, and when it is reported, the victim is often
the only witness. Fuzzard v. State, 13 P.3d 1163, 1168 (Alaska Ct. App.
2000). In many cases, domestic assault prosecutions come down to a
credibility contest between the alleged abuser and the victim. Like child
abuse, domestic violence is rarely a single, isolated act. Rather, it is a
recurring and escalating pattern of behavior in which each episode of
abuse is interconnected through the abuser's ultimate goal of obtaining
control over the victim. J. Aiken & J. Murphy, Evidence Issues in Domestic
Violence Civil Cases, 34 Fam. L. Q. 43, 56 (2000); see also State v.
Sanders, 168 Vt. 60, 62, 716 A.2d 11, 13 (1998) (domestic violence is
controlling behavior aimed at gaining victim's compliance through repeated
incidents of abuse).
With greater understanding of the pathology of abusive relationships,
courts have shown an increased willingness to permit historical evidence
of domestic violence. In certain circumstances, it would be unfair to
allow the jury to evaluate the victim's credibility - for example, when the
victim has acted in a manner seemingly at odds with the claim of abuse -
without a full knowledge of the dynamics of the relationship between the
accuser and the accused. See State v. Clark, 926 P.2d 194, 206 (Haw.
1996); State v. Grant, 920 P.2d 609, 614 (Wash. Ct. App. 1996).
Consequently, both courts and legislatures have been more receptive in
recent years to allowing the admission of prior assaults in domestic
assault prosecutions. Some jurisdictions have made explicit rule changes
that permit the admission of prior assaults in domestic assault cases for
any reason as long as the probative value of the evidence outweighs its
prejudicial impact. See Cal. Evid. Code § 1109 (2001); Minn. Stat. §
634.20; Col. Rev. Stat. § 18-6-801.5 (finding that admission of prior
assaults on domestic assault victim is necessary in some cases because of
cyclical nature of offense). Other jurisdictions have simply taken a more
expansive view of the Rule 404(b) exceptions in the context of domestic
assault cases to achieve a similar result without a rule change. See
Comment, Beating Again and Again and Again: Why Washington Needs a New Rule
of Evidence Admitting Prior Acts of Domestic Violence, 75 Wash. L. Rev.
973, 1000-01 (2000) (noting that some courts have stretched Rule 404(b)
exceptions in domestic assault cases, "thereby warping the definitions of
these exceptions for other crimes"); Comment, The Search for Truth:
Admitting Evidence of Prior Abuse in Cases of Domestic Violence, 20 U.
Haw. L. Rev. 221, 240-53 (1998) (discussing trends in admitting evidence
of prior assaults in domestic assault prosecutions); State v. Hedger, 811 P.2d 1170, 1174 (Kan. 1991) ("Evidence of a discordant marital relationship
is admissible, independent of [Rule 404(b)], to show the ongoing
relationship between the parties.").
Nevertheless, this Court has explicitly stated that "we have no
special exception to Rule
404(b) for sexual misconduct cases, neither have we adopted special, more
liberal, interpretations of Rule 404(b) to allow the admission of prior
bad act evidence in such cases, especially when we would not admit similar
evidence in other cases." State v. Winter, 162 Vt. 388, 392, 648 A.2d 624,
622 (1994). The closest we have come to a special rule is allowing the
State to show that the act charged in a child sexual abuse prosecution "is
only one of a continuous series of acts" with the same victim. Id. at
393, 649 A.2d at 627. In such cases, we "allow the victim to tell enough
of the story to preserve its integrity as a credible one." State v.
Forbes, 161 Vt. 327, 333, 640 A.2d 13, 16 (1993). But that is only
appropriate where the "context" of historical events "is so interwoven with
the crime [that] it cannot be separated without skewing the event made the
subject of the charge." Id. That situation is not present in this case.
Nor is this a case in which the "context" evidence was admitted
because the victim was dead and unavailable to testify as to the true
nature of the relationship, or because the victim recanted her complaint
of abuse, refused to testify, or behaved in a way that made her claim of
assault seem incongruous. "Context" evidence has been most often admitted
as relevant due to situations such as these. For example, in State v.
Green, 652 P.2d 697, 701 (Kan. 1982), the defendant, on trial for murder
of his wife, claimed that someone else killed his wife before he arrived on
the scene. Evidence of his prior assaults against his wife was probative
on the issue of identity and was admitted "to establish the relationship
of the parties, the existence of a continuing course of conduct between
the parties, or to corroborate the testimony of the complaining witnesses
as to the act charged." In Grant, evidence of prior assaults by the
defendant on the victim was admitted to explain why the victim permitted
contact with the abuser after the assault and then minimized the degree of
violence after being contacted by the abuser from jail. "Ms. Grant's
credibility was a central issue at trial. The jury was entitled to
evaluate her credibility with full knowledge of the dynamics of a
relationship marked by domestic violence and the effect such a relationship
has on the victim." 920 P.2d at 614. In State v. Kelly, 624 N.E.2d 733,
735 (Ohio Ct. App. 1993), the victim was permitted to testify that the
reason she did not try to escape or retaliate was because she knew, based
on nine years of abuse, that the defendant would either physically abuse
or kill her. Moreover, the reason she did not scream when the defendant
forced her and their sons into the car and abducted them was because of an
earlier incident when he beat her for screaming. Id. And finally, in
Clark, prior incidents of domestic violence between the victim and the
defendant were admitted to show "the basis for [the victim's] recantation
at trial." 926 P.2d at 206; see Smith v. State, 669 A.2d 1, 5 (Del. 1995)
(evidence of repeated acts of violence admitted to establish course of
conduct to show victim's lack of consent to sexual intercourse and to
explain why she recanted her prior statements and testified that sexual
relations were consensual).
Like the trial court, the majority relies on the reasoning in State v.
Sanders for admitting the two prior assaults based on "context." But, in
that case, we held that the prior bad act evidence went to prove that
defendant meant to intimidate and threaten the victim (FN2) - and "to put
the victim's recantation of prior statements into context for the jury."
Sanders, 168 Vt. at 62-63, 716 A.2d at 13 (noting that "[v]ictims of
domestic abuse are likely to change their stories out of fear or
retribution, or even out of misguided affection"). (FN3) Given the
victim's recantation of her prior statements,
Sanders is exactly the type of case in which to provide the jury with
"context" evidence. That is certainly not the situation here. The victim
in this case did not equivocate in her testimony about the charged
assault. Indeed, she testified fully in support of the State's case. This
was a credibility contest between the two witnesses to the event. There
was no need to paint a picture of the relationship between defendant and
his wife in order for the jury to make its assessment of who was more
credible.
I believe that the "context" rationale is an appropriate approach in
certain cases, such as in Sanders. Applied in this case, however, the
rationale has no purpose and simply becomes an excuse to admit all
evidence of prior assaults against victims of domestic violence. If that
is the path we are to take-and I am not convinced that it is the right
path in all cases-it should be done through the rule amendment process
rather than by dubious or incomplete analysis that warps the existing rules
for other crimes. In this case, we should affirm admission of the prior
assaults to refute defendant's claims of self-defense and accidental
injury, without rationalizing their admission based on "context."
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. The majority notes that one incident, the 1993 assault, satisfied an
element of 13 V.S.A. § 1044(a)(2) requiring a prior domestic assault
conviction. Because defendant stipulated to the conviction, however, this
reasoning cannot support the introduction of the details of that prior
assault.
FN2. Sanders was charged with first-degree aggravated domestic assault
under 13 V.S.A. § 1043(a)(2), which requires proof of intent to "threaten"
the victim. As applicable in Sanders, 13 V.S.A. § 1042, domestic assault,
is defined as "wilfully causes a family or household member to fear
imminent serious bodily injury."
FN3. My Brother Dooley and I disagree on what was recanted in Sanders. The
facts of the case make clear that the victim denied not only the
substantive facts of her prior sworn statements concerning the two "prior
bad acts" that the court admitted, but, on the witness stand, she
specifically recanted prior statements concerning the charged offense,
claiming on the stand that the defendant did not have a knife and denying
that she believe he was going to kill her. Thus, allowing "prior bad act"
evidence was appropriate to provide "context" to aid in the jury's
understanding of the recantation. It may be that the decision in Sanders
imprecisely sets forth these factual underpinnings. If I am wrong in my
understanding of Sanders, then this concurrence comes too late and the
Court has already adopted a special exception to Rule 404(b) for sexual
misconduct cases.
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