State v. Swift

State v. Swift (2002-414); 176 Vt. 299; 844 A.2d 802

2004 VT 8A

[Filed 27-Feb-2004]


       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.


                                 2004 VT 8A

                                No. 2002-414


  State of Vermont	                         Supreme Court

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

  Kent Swift	                                 September Term, 2003


  Edward J. Cashman, J.

  William H. Sorrell, Attorney General, and John Treadwell, Assistant
    Attorney General, Montpelier, for Plaintiff-Appellee.

  Allison Fulcher of Martin and Associates, Barre, and Kent Swift, Pro Se,
    Jarratt, Virginia, for Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
            (Ret.), Specially Assigned

        
       ¶  1.  JOHNSON, J.   Defendant appeals his conviction for one count
  of second-degree aggravated domestic assault in violation of 13 V.S.A. §
  1044, and two counts of obstruction of justice  for threatening a witness
  in violation of 13 V.S.A. § 3015.  Defendant claims that the trial court
  erred by refusing to instruct the jury on simple assault, which is a
  lesser-included offense of second-degree aggravated domestic assault. 
  Alternatively, defendant asserts that the jury instruction impermissibly
  limited the jury's ability to doubt the complaining witness's credibility,
  and thereby violated his constitutional right of confrontation.  We affirm
  the trial court's decision not to instruct the jury on simple assault. We
  reverse and remand for a new trial because the court's instruction
  prejudicially impinged upon the jury's duty to weigh the evidence.

       ¶  2.  On July 26, 2000, defendant assaulted Cindy Lawrence, his then
  girlfriend.  The following day, defendant was arraigned on domestic assault
  charges.  At arraignment, the court imposed conditions of release that,
  among other things, prohibited defendant from contacting or harassing
  complainant Cindy Lawrence, and from being within 1000 feet of her, her
  home, or her place of employment.  Despite those conditions, defendant went
  to complainant's home on August 10, 2000 where he allegedly threatened her. 
  On August 24, 2000 defendant allegedly threatened  plaintiff again, and
  punched her in the head.  Defendant was subsequently arraigned and tried on
  one count of second-degree aggravated domestic assault and two counts of
  obstructing justice in the matter of his earlier assault on complainant.  

       ¶  3.  At trial, complainant testified that she "dated the defendant"
  and lived together with him in a Barre apartment from January 2000 to July
  2000.  When asked on direct if she had a sexual relationship with
  defendant, she responded affirmatively.  She was not cross examined on any
  of this testimony.  Defendant did not introduce any evidence on the issue.
   
       ¶  4.  After the close of the State's case, defendant moved for
  judgment of acquittal.  The motion challenged the sufficiency of the
  State's evidence that complainant was a "household member" of defendant for
  purposes of the domestic assault statute, 13 V.S.A. § 10449(a)(1).  In the
  context of the motion, defendant conceded that the evidence showed that he
  had a sexual relationship with complainant and that he had lived with her
  for approximately six months in 2000.  Defendant argued that complainant's
  admittedly uncontroverted assertion that she had a sexual relationship with
  defendant and had lived with him for six months - without more - was 
  insufficient to meet the State's burden of proof on the "household member"
  issue.  The judge denied the motion, specifically stating that he believed
  the State had enough evidence on the issue.

       ¶  5.  The following day, defendant objected to the judge's decision
  not to give the jury an instruction on simple assault, a lesser included
  offense of domestic assault.  Defendant argued that the jury should have
  had the option to convict on the simple assault offense in the event that
  it decided that the State had not established the "household member"
  element of domestic assault beyond a reasonable doubt.  The judge found
  this argument unpersuasive, and stated that "the evidence about domestic
  partner [household member] just seems totally uncontested and
  uncontroverted." 

       ¶  6.  On appeal, defendant renews his argument that the judge should
  have instructed the jury on simple assault as well as domestic assault. 
  The State correctly concedes that the elements of simple assault are
  incorporated within the elements of second-degree aggravated domestic
  assault, and thus simple assault is a lesser included offense. 
  Nonetheless, the State maintains that defendant failed to present evidence
  or contradict the State's evidence on the "household member" element that
  distinguishes the two offenses, and thus defendant was not entitled to a
  simple assault instruction.  The record provides ample support for the
  State's position.
   
       ¶  7.  As a general rule, a defendant is entitled to an instruction
  on a lesser offense than the offense charged if the elements of the lesser
  offense are necessarily included in the greater offense, and if the facts
  in evidence reasonably support such an instruction.  State v.  Delisle, 162
  Vt.  293, 301, 648 A.2d 632, 637 (1994); State v. Bolio, 159 Vt. 250, 252,
  617 A.2d 885, 886 (1992).  The purpose of the rule is to "allow the jury to
  consider the evidence in the light of all of the alternative verdicts
  fairly presented, and not to have to elect between only a guilty verdict
  and an acquittal, where the evidence is susceptible of sustaining a
  lesser-included offense."  Bolio, 159 Vt. at 254, 617 A.2d  at 887.  A
  defendant may be denied an instruction on the lesser included offense when
  the evidence does not support the instruction.  State v.  Alexander, 173
  Vt. 376, 383, 795 A.2d 1248, 1254 (2002); see also Keeble v.  United
  States., 412 U.S. 205, 208 (1973) (evidence must be such that a jury could
  rationally find the defendant guilty of the lesser offense, yet acquit him
  of the greater).

       ¶  8.  For purposes of this appeal, the key distinction between the
  charged offense -  second-degree aggravated assault - and the lesser
  offense - simple assault - is the identity of the victim. A simple assault
  becomes a domestic assault when it is perpetrated against a "family
  member," or, as is alleged here, a "household member."  Compare 13 V.S.A. §
  1044(a) (second-degree aggravated domestic assault incorporates the
  "household member" element from 13 V.S.A. § 1042) with 13 V.S.A. § 1023(a)
  (simple assault lacks the "household member" element).  The definition of
  "household member," as used in the domestic assault statutes, is supplied
  by 15 V.S.A. § 1101(2):  "'Household members' means persons who, for any
  period of time, are living or have lived together, are sharing or have
  shared occupancy of a dwelling, are engaged or have engaged in a sexual
  relationship." (emphasis added); 13 V.S.A. § 1041 (incorporating the
  foregoing definition into the domestic assault statutes by reference).
   
       ¶  9.  No rational jury could have concluded that defendant and
  complainant were not "household members" for the purposes of the domestic
  assault statute.  Defendant assaulted complainant on August 24, 2000.  It
  appears from the evidence that this was only a short time after the
  complainant had moved out of the Barre apartment she shared with defendant
  for the six months prior to the assault.  Under the statute, two persons
  are "household members" if they either lived together or had a sexual
  relationship at any time prior to the assault.  The evidence shows
  complainant and defendant satisfied both of these alternative requirements. 
  In light of the statute's broad temporal scope and defendant's concession
  that complainant's testimony about their relationship was accurate, the
  question of whether defendant and complainant were household members was
  not something that a rational jury could reasonably doubt.  Accordingly,
  defendant was not entitled to an instruction on the lesser included
  offense.  Therefore, we affirm the trial court's ruling on this issue.

       ¶  10.  We now turn to the question of the challenged jury instruction
  that concerns "evidence of tolerance of abuse."  Though the State had not
  requested it, the judge offered the following instruction as a rule for
  weighing evidence:

      The law does not recognize evidence that a person remains in an
    abusive relationship as consent to abuse.  Nor does the law
    recognize such conduct as evidence, by itself, to question the
    credibility of a complaining witness.  To the contrary, the law
    recognizes that the more vulnerable partner in an abusive
    relationship will often remain in or return this relationship for
    a number of fearful reasons.  The jury may find other reasons from
    the evidence to question the credibility of a witness regarding
    the issues; but the law does not recognize this fact of remaining
    in or returning to an apparently abusive relationship as evidence
    to question the witness' credibility. (emphasis added). 
     
       ¶  11.  The trial court denied repeated objections to this
  instruction before the jury retired.  The State claims that defendant's
  objection lacked the specificity required to preserve this issue for
  appeal.  This argument is unpersuasive.  Defendant's objection referred to
  the precise sentences that were objectionable, and further stated that the
  issue of credibility goes to the heart of defendant's case.  Defense
  counsel clearly communicated his fear that the jury charge would give the
  impression that both the cross-examination on this topic, and reference to
  it in closing argument was in some way improper and should be disregarded
  by the jury.  This trial objection closely parallels the substance of
  defendant's claim on appeal and therefore meets the specificity standards
  we have established in previous cases.  See, e.g., State v. Covino, 163 Vt.
  378, 380-81, 658 A.2d 916, 917-18 (1994) (explaining that purpose of the
  rule is to apprise the trial court of what defendant intends to preserve
  for appeal, and permit the trial court to correct the error in the first
  instance).

       ¶  12.  The instruction in this case, while well intentioned, was not
  supported by the evidence or the law.  A defendant is entitled to jury
  instructions that are "full, fair, and correct on all issues, theories, and
  claims" presented by the evidence.  State v. Day, 150 Vt. 119, 123-24, 549
  A.2d, 1061, 1064 (1988) (internal quotations omitted).  Improper jury
  instructions warrant reversal only when the defendant succeeds in
  demonstrating prejudice, i.e., a high likelihood that the erroneous
  instructions adversely affected the outcome of the case.  See id. at 125,
  549 A.2d  at 1065.  As the discussion below illustrates, the instruction was
  not fair to defendant because the State had not presented any evidence on
  Battered Women's Syndrome (BWS) to support the theory that the instruction
  articulates.  Cf.  State v. Kinney, 171 Vt. 239, 247, 762 A.2d 833, 840
  (2000) (explaining that syndrome evidence is usually admissible in Vermont
  and "is typically admitted in evidence to assist the jury in understanding
  'superficially bizarre behavior'of a putative victim, such as a child's
  ambivalence about pursuing a sexual abuse complaint, or a child's
  recantation of an earlier accusation").  Even if the State had presented
  such evidence, the instruction was incorrect on the law regarding the
  proper role of the jury in these cases.
   
       ¶  13.  At trial, the complainant was the only witness who offered
  direct evidence that defendant had committed the charged offenses.  She
  testified that between July 26 and August 24 defendant repeatedly
  threatened her life in an attempt to get her to drop the charges stemming
  from an earlier domestic assault.  She also testified that the threats
  escalated to violence on August 24 when defendant punched complainant in
  the head.  Nobody other than complainant testified to having witnessed the
  threats or the punch; therefore, challenging her credibility was central to
  defendant's case.

       ¶  14.  On cross-examination, counsel for defendant attacked
  complainant's credibility by questioning her about a long series of
  contacts she had with defendant during the time that defendant was
  allegedly threatening her.  Complainant testified that she voluntarily met
  with defendant on ten occasions between July 28 and August 10, the day that
  defendant allegedly broke into complainant's house and threatened her.  The
  evidence shows that on several of these occasions, complainant traveled
  with defendant in his van to visit several of his family members in Vermont
  and New Hampshire.  These trips ranged from three to five hours. 

       ¶  15.  During closing arguments, it was apparent that the defense had
  elicited the cross-examination testimony from complainant for the purpose
  of discrediting her testimony about the extent to which Mr. Swift was
  threatening her and perpetrating acts of physical violence against her. 
  Counsel asked the jury to consider whether it was "credible for her to say
  he intimidated me?  But then she would go to New York with him on a trip or
  that they would travel to Mr. Swift's parents or they would travel down to
  West Lebanon?" 

       ¶  16.  At the charge conference, the judge responded to defense
  counsel's objections to the instruction by saying:    

    I think that's the current case law in Vermont that Vermont has
    followed the New Jersey Supreme Court and taken the position that
    the credibility issue as I've stated here that we do not recognize
    a person's remaining within an abusive relationship as a basis to
    doubt their credibility on the issues of abuse in the
    relationship.  While there very well may be other reasons why the
    jury may choose to disbelieve her.  That's not fair game. 
     
       ¶  17.  The Vermont case that the judge was referring to was Blair v.
  Blair, 154 Vt.  201, 575 A.2d 191 (1990).  In Blair, we reviewed a trial
  court's property distribution in a divorce case.  The wife testified about
  continuing physical abuse during the course of a four year marriage.  The
  judge made extemporaneous findings that rejected the wife's testimony as
  not credible.  The judge cited the fact that the wife remained in the
  relationship as evidence that her abuse allegations were "blown up by her
  own hurt with what happened to the marriage." Id. at 204, 575 A.2d  at 193. 

       ¶  18.  This Court ruled that the judge's conclusions were rendered
  suspect because they were based on the popular misconception that an abuse
  victim is free to leave her abuser at any time.  Id.  Besides a series of
  scholarly articles that explained Battered Women's Syndrome, this Court
  cited a string of cases where other state supreme courts had, in various
  contexts, acknowledged that the failure of an abuse victim to leave her
  abuser is a common occurrence that is explained by numerous social and
  psychological factors.  Id.  

       ¶  19.  Most of the cases cited by the Court in Blair, including the
  New Jersey case, State v.  Kelly, 478 A.2d 364 (N.J. 1984), referred to in
  the judge's ruling on the objection to the challenged instruction, were
  cases where the abuse victim was accused of killing her abuser and had
  introduced expert testimony on BWS as part of a justification or
  self-defense argument.  The exception is State v. Ciskie, 751 P.2d 1165
  (Wash. 1988).  In Ciskie, the Washington Supreme Court was required to
  decide whether expert testimony on BWS would be helpful to the trier of
  fact where an adult victim was engaged in an intimate relationship with the
  accused, where several attacks occurred, and yet the victim failed for a
  number of months to end the relationship, either by breaking it off or
  reporting the attacks to law enforcement authorities. 
   
       ¶  20.  Neither Blair, nor most of the cases cited in Blair, present
  the issue the Court must resolve in the present case.  Blair is
  distinguishable both because it was tried to a judge not a jury, and more
  importantly because it was not a criminal case and so did not require
  special sensitivity to the rights of the defendant.  The other cases cited
  in Blair and discussed here also do not lend support to the trial court's
  instruction because in each of those cases there was some evidence
  presented to the jury about BWS.   Accordingly, neither Blair, nor the
  dicta in cases cited, support the proposition that, as a matter of law and
  in the absence of expert testimony on the subject of BWS, a victim's
  credibility cannot be challenged in a criminal case by reference to her
  continued voluntary contact with the accused abuser.

       ¶  21.  As the cases recognize, a victim truly suffering from BWS
  will, for various complex reasons, act in ways that may seem
  counterintuitive to the average juror.  It is up to the prosecution, not
  the judge, to recognize this potential for juror confusion and offer
  appropriate expert testimony on BWS that will help the jury understand an
  alleged victim's actions.  See State v.  Grecinger, 569 N.W.2d 189, 196
  (Minn.  1997) (admitting expert testimony on BWS offered in the state's
  case-in-chief reasoning that "it could help the jury understand behavior
  that might otherwise undermine the complainant's credibility").  Even after
  such testimony is presented, it still remains for the jury to decide
  whether or not they believe complainant's version of events.  See id. at
  197 (detailing the limitations that must be placed on a BWS expert's
  testimony); see also California Jury Instructions-Criminal 9.35.1
  Cautionary Instruction Battered Women's Syndrome (detailing limited uses of
  BWS evidence).
   
       ¶  22.  "We have long recognized that judging the credibility of
  witness testimony is a duty left to the jury."  State v. Couture, 169 Vt.
  222, 227, 734 A.2d 524, 528 (1999) (and cases cited).  Though there may be
  apparent contradictions in the evidence, we have consistently held that "it
  is the exclusive province of the jury, as finders of fact, to resolve the
  contradictions and decide who to believe."  State v. Tenney, 143 Vt. 213,
  216, 464 A.2d 747, 748 (1983) (internal quotations omitted).  The trial
  court's instruction amounted to an injunction to the jury to disregard
  relevant testimony that was favorable to defendant's theory of the case
  even though the trial court had permitted extensive development of the very
  same testimony on cross-examination.  This was especially damaging in the
  present case because the central question the jury had to decide to convict
  on this charge was whether defendant had threatened complainant on two
  occasions, and also assaulted her on one of those occasions.  If it chose
  to discredit complainant's testimony because her testimony about ongoing
  contact with defendant was inconsistent with her claim that she was
  constantly being threatened by defendant, then the State would have been
  left with little evidence to support a guilty verdict.  The trial court did
  leave the jury with the option to "question" complainant's credibility for
  reasons other than tolerance of abuse.  This option was essentially
  meaningless, however, because the record as it pertains to this count does
  not reveal any other grounds to doubt complainant.

       ¶  23.  By taking the issue of complainant credibility away from the
  jury, the trial court's instruction erroneously deprived defendant of his
  main argument for acquittal.  As a result defendant's case was prejudiced
  and the conviction requires reversal. 

       Reversed and remanded for a new trial consistent with the views
  expressed herein. 



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------

State v. Swift (2002-414)

[Filed 27-Feb-2004]


                                 ENTRY ORDER

       	
                      SUPREME COURT DOCKET NO. 2002-414

                             FEBRUARY TERM, 2004


  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont, 
                                       }	Unit No. 3,Washington Circuit
                                       }	
  Kent Swift	                       }
                                       }	DOCKET NO.  147-3-98 Wrcv

                                                Trial Judge: Edward J. Cashman


             In the above-entitled cause, the Clerk will enter:


       The Court issued an opinion in this matter on February 6, 2004 that
  inadvertently omitted reference to two charges of obstructing justice that
  were considered as part of the appeal.  Both parties briefed the appeal
  with reference to charges for second-degree aggravated domestic assault as
  well as the two counts of obstructing justice. The court considered the
  appeal with all three counts in mind, but this consideration was not
  reflected in the published opinion due to a drafting error. 


        
       The  opinion is amended as noted below to accurately reflect the final
  disposition of the appeal, and to correct other minor factual errors that
  had no bearing on the result.  In ¶ 1, the phrase "and two counts of
  obstruction of justice  for threatening a witness in violation of 13 V.S.A.
  § 3015."  has been added to the first sentence to correctly state all
  counts that were on appeal.  In the fourth sentence of ¶ 2, the date has
  been changed from August 24, 2000 to August 10, 2000 and the sentence now
  reads "Despite those conditions, defendant went to complainant's home on
  August 10, 2000 where he allegedly threatened her."  A fifth sentence has
  been added, and it reads: "On August 24, 2000 defendant allegedly
  threatened plaintiff again, and punched her in the head."  The final
  sentence of the paragraph has been changed to reflect the fact that
  defendant was arraigned and tried on two counts of obstructing justice, not
  one count as the opinion had previously indicated.  The word "to" was added
  to the third sentence of the block quotation in ¶ 10 so that it is
  consistent with the original source.  Finally, the fourth sentence of ¶ 22
  has been amended so that it now reads "This was especially damaging in the
  present case because the central question the jury had to decide to convict
  on this charge was whether defendant had threatened complainant on two
  occasions, and also assaulted her on one of those occasions."    	



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned