State v. Lambert

State v. Lambert (2001-390); 175 Vt. 275; 830 A.2d 9

2003 VT 28

[Filed 28-Mar-2003]


       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.


                                 2003 VT 28

                                No. 2001-390


  State of Vermont	                        Supreme Court

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

  Felicia Lambert	                        May Term, 2002


  Ben W. Joseph, J.

  William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
    General, Montpelier, for Plaintiff-Appellee.

  Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for
    Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund, JJ.


       ¶  1.  DOOLEY, J.   Defendant Felicia Lambert appeals from a
  judgment of conviction, based on a jury verdict, of domestic assault and
  cruelty to a child under the age of ten.  She contends the trial court
  erroneously: (1) denied her right to a fair and impartial jury by
  improperly dismissing one of the jurors after impanelment; (2) failed to
  instruct the jury on all of the elements of the crime of cruelty to a
  child; and (3) imposed a sentence with no minimum term.  We affirm the
  judgment of conviction, reverse the sentence for cruelty to a child, and
  remand for resentencing.
   
       ¶  2.  Defendant was charged with one count of aggravated domestic
  assault, in violation of 13 V.S.A. § 1043, and one count of cruelty to a
  child under ten years of age, in violation of 13 V.S.A. § 1304.  The
  charges stemmed from an incident involving her son.  Additional facts will
  be stated where pertinent to the claims on appeal.

       ¶  3.  Jury selection was held, and fourteen jurors were selected,
  two to serve as alternates.  On the first day of the trial, before the jury
  was sworn, one juror was excused at her own request and without objection
  because her daughter had been involved in a serious accident.  The State
  then requested that an additional juror be struck because of facts that had
  been brought to the prosecutor's attention following jury selection. 
  Specifically, a local reporter had told the prosecutor that this particular
  juror was an officer of a church that ran a day care center.  The reporter
  stated that the church's day care provider had recently been accused of
  pinching some of the children in her care, that the juror had attended the
  daycare provider's sentencing hearing on another charge of child abuse with
  respect to a foster child in her care, and that the juror had expressed
  surprise to the reporter that what the daycare provider had done was
  considered a crime.
   
       ¶  4.  The trial judge called the juror into the courtroom and
  questioned him about the allegations.  The juror acknowledged attending the
  sentencing hearing, but denied knowing the defendant in the case.  He
  explained that he had attended only out of curiosity because he had been
  called for jury duty in a child abuse case.  He acknowledged that he had
  talked with the reporter, but recalled that he had expressed surprise only
  that the media was interested in the case.  When asked whether he
  understood that child abuse is a crime, he responded, "Oh, absolutely." 
  When asked whether he "support[ed]" child abuse being a crime, the juror
  appeared to construe the question as pertaining to a particular case,
  responding that his opinion would depend on the evidence.  When asked
  whether he supported the sentencing in the case that he had observed, he
  responded that he could not answer because he knew nothing about the case. 
  Defense counsel declined the court's offer to question the juror, but
  opposed the State's request that he be excused.

       ¶  5.  The court dismissed the juror, explaining that the decision
  was based on a concern the juror had "formed some opinions" and had not
  previously disclosed his attendance at the sentencing hearing, which would
  have would have afforded the State the opportunity to seek dismissal for
  cause, or to exercise a peremptory challenge.  No additional jurors were
  selected so the trial proceeded through to verdict with the twelve
  remaining jurors.

       ¶  6.  At the close of evidence, the trial court instructed the jury
  on the charged crimes, including instructions on accomplice liability,
  attempt, and any lesser included offenses.  The court also provided the
  jury with a written copy of the instructions for reference during
  deliberations.  Defendant made no objection following the instructions. 
  The jury found defendant guilty of domestic assault and cruelty to a child. 
  Following a contested sentencing hearing, the court sentenced defendant to
  serve twenty-four months on the charge of cruelty to a child, and one to
  twelve months on the charge of domestic assault, to be served
  consecutively.  This appeal followed.

       ¶  7.  Defendant first contends the trial court committed reversible
  error by allowing the State to challenge a juror after the jury had been
  impaneled and granting the challenge on inadequate grounds, thereby
  depriving her of the right to a fair and impartial jury by the particular
  tribunal she had selected.  See State v. Villeneuve, 155 Vt. 360, 363, 584 A.2d 1123, 1125 (1990) (recognizing defendant's "valued right to have his
  trial completed by a particular tribunal" once jeopardy attaches) (internal
  quotation marks and citations omitted).  The State responds that dismissal
  of the juror was in, effect, a peremptory challenge by the State, which it
  argues may be exercised at any time prior to the jury being sworn.
   
       ¶  8.  We need not reach the merits of defendant's argument.  We
  will not reverse a criminal conviction for an error we find to be harmless. 
  See V.R.Cr.P. 52(a); State v. Kinney, 171 Vt. 239, 244, 762 A.2d 833, 838
  (2000).  In this case, defendant suffered no prejudice from the dismissal
  of the juror.

       ¶  9.  The court acted under its power to replace jurors who "become
  or are found to be unable or disqualified to perform their duties." 
  V.R.Cr.P. 24(d); see also Villeneuve, 155 Vt. at 363, 584 A.2d  at 1125
  (court may remove a juror in the course of trial in "proper
  circumstances"); State v. Calloway, 157 Vt. 217, 220, 596 A.2d 368, 371
  (1991) (concluding that "the court has the power on its own to excuse
  persons drawn . . . and it is an area of trial court discretion aimed at
  giving both sides a fair trial").  There is no question that having been
  alerted to questions about the juror's impartiality, the court was
  authorized to explore and determine the juror's competence to serve on the
  jury.

       ¶  10.  Thus, the only possible error is that the court acted without
  adequate grounds.  We do not believe this error, if any, would be
  sufficient for us to reverse the conviction.  As we explained in Calloway:

    defendant does not have a right to any specific juror; his right
    is to a fair and impartial jury.  Absent some showing of
    prejudice, we would not reverse a criminal conviction merely
    because potential jurors were improperly excused.

  157 Vt. at 220-21, 596 A.2d  at 371 (internal citations omitted).  That
  defendant here suffered no prejudice from the juror's dismissal - even if
  erroneous - is readily apparent.  Defendant had ample opportunity to voir
  dire the alternate who replaced the dismissed juror, and plainly determined
  that the alternate was acceptable.  See V.R.Cr.P. 24(d) (alternate jurors
  "shall be drawn in the same manner, shall have the same qualifications,
  shall be subject to the same examination and challenges . . . as the
  regular jurors").  Absent any claim or showing of impartiality on the part
  of the alternate, there is no basis to find that defendant was deprived of
  a fair and impartial jury.  See United States v. Agramonte, 980 F.2d 847,
  850 (2d Cir. 1992) (although court dismissed juror during trial and
  appointed alternate without holding requisite inquiry, reversible error
  cannot be found absent assertion that "the alternate juror who completed
  the trial was not impartial"); Strickland v. State, 46 S.W.3d 554, 557
  (Ark. Ct. App. 2001) (appellant's failure to allege or demonstrate bias on
  part of alternate who replaced juror removed by trial court after jury was
  impaneled and sworn precluded reversal of judgment ); Dailey v. State, 828 So. 2d 340, 343-44 (Ala. 2001) (trial court's error in granting state's
  challenge for cause is harmless where the jury that heard the case was
  impartial); Wagner v. State, 560 S.E.2d 754, 760 (Ga. Ct. App. 2002)
  (assuming that trial court wrongfully dismissed prospective juror, "the
  error affords no ground for appeal if, in the end, [the defendant's] case
  was heard by a competent and unbiased jury") (internal citation omitted);
  State v. Santana, 14 P.3d 378, 384 (Idaho Ct. App. 2000) (although trial
  court erred in dismissing juror after jury was empaneled and appointing
  alternate, error was harmless absent claim and showing that jury which
  heard case was biased).  Defendant here has made no such claim or showing.
   
       ¶  11.  We emphasize that this was not a case in which an error with
  respect to the grant or denial of a challenge for cause led to a
  discrepancy in the availability of peremptory challenges.  See State v.
  Doleszny, 146 Vt. 621, 623, 508 A.2d 693, 694 (1986) (reversible error if
  court improperly denies defense challenge for cause and defense uses a
  peremptory challenge to remove this juror, thereafter uses up all
  peremptory challenges, and then seeks unsuccessfully to challenge another
  juror); see also State v. McQuesten, 151 Vt. 267, 269-70, 559 A.2d 685, 686
  (1989) (same).  We have held that this kind of error cannot be considered
  harmless.  See State v. Santelli, 159 Vt. 442, 445-7, 621 A.2d 222, 224-25
  (1992).  In this case, the prosecution had not used up its peremptory
  challenges and did not gain a new juror who the defense could not
  challenge.  Thus, we distinguish this case from People v. LeFebre, 5 P.3d 295 (Colo. 2000) in which the court's erroneous decision to remove a juror
  for cause "in effect granted the prosecution an additional peremptory
  challenge," id. at 303, and was found "inherently prejudicial because it
  allowed the prosecution an unfair tactical advantage in shaping a jury
  biased in its favor."  Id. at 308.  Any error here did not result in a
  tactical advantage for the State.  Accordingly, any error in dismissing the
  juror was harmless and does not require reversal of the judgment.

       ¶  12.  Defendant next contends the court erroneously failed to
  instruct the jury on two separate elements of the crime of cruelty to a
  child, specifically the requirements that defendant have custody of her son
  at the time of the alleged acts, and that defendant actually assault her
  son as charged. (FN2)   Defendant acknowledges that she failed to object to
  the instructions as given, see V.R.Cr.P. 30 (party must object to charge
  before jury retires to deliberate in order to assign error on appeal with
  respect to the charge), but argues that she is entitled to reversal without
  regard to prejudice because the omission amounted to a directed verdict for
  the State on those two elements in violation of her constitutional right to
  trial by jury under Article 10 of the Vermont Constitution.  She argues
  that under State v. West, 164 Vt. 192, 199-202, 667 A.2d 540, 544-48 (1995)
  and State v. Coita, 153 Vt. 18, 21, 568 A.2d 424, 426 (1989), an Article 10
  error must result in a reversal of her conviction without a showing of
  prejudice and without preservation.  See State v. Loveland, 165 Vt. 418,
  420, 684 A.2d 272, 274 (1996) (West allows challenge on appeal to invalid
  jury trial waiver without preservation).  In Loveland, however, we declined
  to adopt defendant's position that stipulation to an element of an offense
  should be treated as a waiver of a jury trial with respect to that element. 
  Id. at 421, 684 A.2d  at 275.

       ¶  13.  In the absence of preservation, we normally review on appeal
  only for plain error.  In essence, defendant seeks a ruling that omitting
  an element of an offense in charging the jury is plain error per se.  As we
  noted in State v. Koveos, 169 Vt. 62, 66, 732 A.2d 722, 725 (1999), 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."  Thus, although earlier decisions suggest that
  instructing the jury that an element of the offense has been conceded is
  plain error per se, see State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152,
  1153 (1986); State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985), we
  have specifically rejected applying plain error per se to omission of
  elements of the offense from the charge to the jury.  See State v. Dion,
  154 Vt. 420, 424, 578 A.2d 101, 103 (1990) (failure to object to jury
  instruction results in review for plain error, "even where the charge omits
  an essential element of the offense"); State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989) (same).  Thus, we analyze defendant's claim only for
  plain error.
   
       ¶  14.  We review jury instructions in their entirety, assigning
  error only when "the entire charge undermines confidence in the verdict." 
  State v. Carpenter, 170 Vt. 371, 374-75, 749 A.2d 1137, 1139 (2000).  When
  reviewing for plain error, we look at the instructions in light of the
  record evidence as a whole.  State v. Tahair, 172 Vt. 101, 111, 772 A.2d 1079, 1087 (2001).  Plain error is that which, unrecognized by this Court,
  would result in a miscarriage of justice.  Carpenter, 170 Vt. at 375, 749 A.2d  at 1139-40.  Any claimed error in jury instructions "must not only
  affect substantial rights, but also have an unfair prejudicial impact on
  the jury's deliberations."  Id.; see also State v. Pelican, 160 Vt. 536,
  539, 632 A.2d 24, 26 (1993) ("Prejudice must exist to demonstrate that
  error undermined fairness and contributed to a miscarriage of justice."). 
  "Error will be assigned only when the entire charge undermines our
  confidence in the verdict, and only in extraordinary cases will we find
  plain error."  State v. Brooks, 163 Vt. 245, 250, 658 A.2d 22, 26 (1995).

       ¶  15.  With respect to the requirement that defendant have "custody,
  charge or care" of her son, 13 V.S.A. § 1304, we cannot say that the
  omission of this element from both the written and oral instructions
  constituted plain error because this element was not seriously at issue. 
  Defendant did not contest that her son was in her care and custody at the
  time of the charged events, and, although defendant's husband testified to
  a prior occasion on which he and defendant were charged with unlawfully
  removing the son from his grandparents' custody, he also testified that
  they subsequently went to court and obtained lawful custody of the boy. 
  Thus, the omission does not rise to the level of plain error in this case. 
  See State v. McGee, 163 Vt. 162, 166, 655 A.2d 729, 732-33 (1995) (omission
  of element of intent to commit a robbery in felony-murder charge not plain
  error where it "was never a contested issue and presented neither a close
  nor difficult question for the jury"); State v. Percy, 158 Vt. 410, 418,
  612 A.2d 1119, 1125 (1992) (no plain error flowing from erroneous
  instruction on element of crime where defendant did not contest committing
  the underlying acts, but merely contested his sanity).
   
       ¶  16.  Defendant also argues that the trial court failed to properly
  separate out the element of assault in its oral instruction saying only
  that defendant had to act wilfully with the purpose of assaulting her son. 
  Again, we find no plain error on this record.  The written instructions
  provided to the jury for use during their deliberations did appropriately
  separate the elements of intent and assault.  Additionally, both the oral
  and written instructions given at the close of evidence informed the jury
  that defendant was specifically charged with "assault[ing] the child under
  10 years of age by kicking him."  The information with this language was
  also read to the jury at the beginning of trial.  Cf. State v. Forant, 168
  Vt. 217, 220, 719 A.2d 399, 401 (1998) (no plain error where court made
  three accurate references to the State's burden of proof and one inaccurate
  statement of the State's burden).  Lastly, the State in both its closing
  argument and its rebuttal argument stated that it was charging defendant
  with wilfully assaulting her son: "Let's be perfectly clear here. . . . The
  State is alleging that [defendant] wilfully assaulted this child."  We do
  not believe that the omission of the independent assault element from the
  oral instructions resulted in a miscarriage of justice.
   
       ¶  17.  Finally, defendant contends the trial court's failure to
  establish a separate minimum sentence on the charge of cruelty to a child
  violates 13 V.S.A. § 7031, (FN3) relying on our line of cases holding that
  a trial court cannot impose minimum and maximum sentences of identical
  length.  See State v. Bruley, 129 Vt. 124, 130, 274 A.2d 467, 471 (1970);
  In re Parent, 125 Vt. 475, 475, 218 A.2d 717, 717 (1965); see also 13
  V.S.A. § 7031(a) (enjoining courts from sentencing defendants for a fixed
  term unless term is fixed by statute).  The State responds that the
  decision to impose a minimum sentence is discretionary; thus, the failure
  to do so cannot be grounds for reversal.  We agree with the State's general
  assertion.  See 13 V.S.A. § 7031 (sentencing court "shall establish a
  maximum and may establish a minimum term for which such respondent may be
  held in imprisonment") (emphasis added); Bruley, 129 Vt. at 130, 274 A.2d 
  at 471 (noting 1970 amendment substituting permissive for mandatory
  language reflected legislative intent to make setting of minimum term
  discretionary such that "[court] could establish the maximum time for
  confinement without reference to a lesser time").  Indeed, the statutory
  scheme governing parole anticipates sentences with no minimum.  See 28
  V.S.A. § 501 (providing that inmate shall be eligible for parole after
  twelve months when inmate's sentence has no minimum or minimum of zero). 
  Furthermore, the Legislature has established mandatory minimum sentences
  for many crimes that would presumably control in the absence of a minimum
  term set by the trial court.  See, e.g., 13 V.S.A. § 502 (establishing
  two-year minimum sentence for first degree arson); id. § 2602 (establishing
  one-year minimum sentence for first offense of lewd or lascivious conduct
  with a child).

       ¶  18.  The State's argument, however, rests on the erroneous
  assumption that the trial court did not set any minimum sentence on the
  charge.  In fact, the trial court in this case did set both a minimum and a
  maximum term on the charge of cruelty to a child.  The mittimus on the
  charge of cruelty to a child set forth a sentence with a minimum of
  twenty-four months and a maximum of two years - terms of identical length. 
  Thus, the trial court did not simply decline to impose a minimum sentence;
  rather, it specifically attempted to establish a minimum equal to the
  maximum term.  In these circumstances, the minimum term is not valid.  See
  Bruley, 129 Vt. at 130, 274 A.2d  at 471 (although court could have declined
  to establish minimum sentence in light of amendment to § 7031, insofar as
  court attempted to establish minimum identical to maximum term, sentence
  was invalid).

       ¶  19.  Because of the error in the minimum term, we strike the
  sentence imposed on the charge of cruelty to a child and remand for
  resentencing on that charge. (FN4)

       Defendant's sentence on the charge of cruelty to a child under ten
  years of age is stricken, and the case is remanded for resentencing on that
  count; the judgment of conviction on both charges is affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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


FN1.  Justice Morse sat for oral argument but did not participate in this
  decision.

FN2.  The statute provides:

    A person over the age of sixteen years, having the custody, charge
    or care of a child under ten years of age, who wilfully assaults,
    ill treats, neglects or abandons or exposes such child . . . in a
    manner to cause such child unnecessary suffering, or to endanger
    his health, shall be imprisoned not more than two years or fined
    not more than $500.00, or both.

  13 V.S.A. § 1304.


FN3.  In pertinent part, 13 V.S.A. § 7031(a) provides that when a person is
  sentenced to any term of imprisonment, the court "shall establish a maximum
  and may establish a minimum term for which such respondent may be held in
  imprisonment."

FN4. Defendant requests that this case be specifically remanded to a
  different judge for sentencing - implying that the original sentencing
  judge should be recused due to possible prejudice.  "A party seeking a
  trial judge's recusal must make a clear and affirmative showing of bias or
  prejudice."  Ball v. Melsur Corp., 161 Vt. 35, 40, 633 A.2d 705, 710
  (1993), and defendant here had made neither legal nor factual argument in
  support of her request.  Accordingly, the request is denied.