State v. Vincent

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-034

State of Vermont                             Supreme Court

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

Raymond H. Vincent                           February Term, 1991

Shireen Avis Fisher, J.

Robert M. Butterfield, Caledonia County Deputy State's Attorney,
  St. Johnsbury, for plaintiff-appellee

Kenneth Schatz, Acting Defender General, and Kerry DeWolfe, Appellate
  Attorney, Montpelier, for defendant-appellant

Alexander Scherr, Vermont Legal Aid, Inc., St. Johnsbury, for amicus
  curiae Umbrella, Inc.

David J. Mullett of Cheney, Brock & Saudek, P.C., Montpelier, for amicus
  curiae Vermont Network Against Domestic Violence and Sexual Assault

PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

     MORSE, J.   Defendant was convicted by a jury of sexual assault,
burglary, and carrying a weapon while committing a crime.  He appeals the
denial of his pretrial motion to compel discovery from a rape crisis worker.
He also appeals the denial of his motion for acquittal on the ground that
there was insufficient evidence of intent to convict him of burglary and
claims the court committed plain error by failing to force the State to
elect between separate episodes of sexual assault.  Finally, he claims that
the information charging him with sexual assault is insufficient because it
does not allege specific unlawful conduct.  We affirm.
     The charges arose out of an incident in which defendant entered his
estranged wife's home at approximately 1:30 a.m.  Awakened by defendant
standing in the hallway adjacent to her bedroom with a knife in his hand,
she asked what he was doing; he replied that he was going to kill her.
Defendant then entered her bedroom, locked the door, and pinned her to the
bed.  She screamed and struggled.  Defendant pushed her head down on the bed
with such force her nose bled and cut her hand with the knife.  He repeated
that he intended to kill her and ordered her to remove her clothes,
indicating he was going to have sex with her.  Defendant then forced her to
submit to intercourse.
     Afterwards, defendant told his wife his "plans" for her -- that he had
a girlfriend who was going to move in and be the mother of their children
while she worked.  He also told her he would come and go and force her to
have sex with him whenever he pleased.  Throughout his conversation,
defendant waved the knife in front of her face, up and down her body, and
tapped the knife's edge against her breast.  He told her he was going to cut
her and watch her bleed to death before he left.
     Defendant then forced his wife downstairs where he made her wash the
blood from her face.  He sexually assaulted her again and repeated his
plans for her.  Defendant kept the knife in his grasp or within reach at all
times.  He left the home near daybreak.
     The victim called the Vermont State Police, who took her to a nearby
hospital.  A rape crisis worker from Umbrella, Inc., contacted by the police
officers as part of their standard procedure, was present during the
examination procedures.
     Defendant argues that the trial court erred in denying his request to
compel disclosure of the rape crisis worker's name.  Before the trial court,
the State urged the creation of a qualified or an absolute privilege to
protect the identity of rape crisis workers.  On appeal, amicus counsel for
Umbrella and for Vermont Network Against Domestic Violence and Sexual
Assault joined in arguing in favor of the privilege.  We need not and do not
reach that issue here, however, because in denying defendant's motion, the
court did not create a privilege, and we find it was unnecessary for it to
do so to reach its decision.  Instead, we affirm its decision to deny
disclosure of the worker's name on a more narrow ground, as an appropriate
exercise of the court's general discretion in supervising discovery.
V.R.Cr.P. 16.2(d).
     Defendant sought by motion an order compelling the State to produce
the rape crisis worker who attended the victim after the alleged sexual
assault.  He offered no specific reason for this request.  Rather, he stated
that the worker had been for a time alone with the victim, and that he
sought "to be able to determine any information that would be helpful in
[his] defense."
     At the show cause hearing on defendant's motion, Umbrella's executive
director testified that the organization sought to keep its workers'
identities confidential in order to protect them from possible harassment or
even violent reprisal by the alleged assaulters.  She stated that crisis
workers are volunteers, who feel that they do not enjoy the same degree of
protection as state employees -- law enforcement officers, social workers,
or court staff -- who come into professional contact with assaulters.  She
asserted that, without the protection of confidentiality, Umbrella would
have difficulty in recruiting and keeping its lay volunteers.  Finally, she
stated that crisis worker's role is to support victims with their immediate
needs, not to investigate the truth of their allegations, and that their
relationships with victims would be impaired if their communications were
not confidential.  Defendant offered no evidence in support of the motion
and relied solely on his discovery rights set forth in V.R.Cr.P. 16.
     The court denied defendant's motion, acknowledging that rape crisis
intervention would be undercut if workers' identities were disclosed and
finding that defendant had failed to make "some showing that there is some
specific reason why this particular [worker's] name should be revealed."
The court characterized defendant's request as a "fishing expedition," but
stated it would reconsider the request if, after deposing other witnesses,
defendant could show need.
     Later, defendant refiled his motion, broadly asserting that the "rape
crisis worker may have information relevant to [the victim's] credibility
and necessary to effective cross-examination of [the victim]."  The court
again denied the request on basically the same grounds, stating, "Any person
who has ever contacted the victim 'may have information relevant to' her
credibility.  Necessity not shown."  The issue was raised again before the
trial court, which denied the motion, stating there were no new fact issues
requiring reconsideration of the court's prior rulings.
     At the outset, we note that the Umbrella worker was not a person the
State intended to call as a witness at trial; defendant did not even
establish that the State knew the worker's identity.  Under these
circumstances, V.R.Cr.P. 16(a)(1), which provides that the prosecutor has
an obligation is to "[d]isclose to defendant's attorney as soon as possible
the names and addresses of all witnesses then known to him," does not apply.
     Furthermore, when cross-examining the Umbrella representative at the
motion hearing, defense counsel did not even ask her the worker's name.
Consequently, we doubt that defendant took sufficient procedural steps to
place the disclosure issue squarely before the trial court.
     In any event, the trial court properly exercised its discretion by not
assisting defendant to discover the identity of the rape crisis worker.
V.R.Cr.P. 16.2(d) provides

            Upon a showing of cause, the court may at any time
          order that specified disclosures be denied, restricted,
          or deferred, or make such other order as is appropriate
          . . . .

Trial courts have broad discretion in controlling discovery and may take
into account "intimidation of or harm to witnesses" or the protection of
nonparties "whose rights or interests are invaded by a proposed disclosure."
Reporter's Notes to V.R.C.P. 16.2 at 105-06.
     We are mindful that protective orders are to be "carefully drawn to
allow the maximum disclosure consistent with the interest sought to be
protected."  Id. at 106.  Defendant, however, presented no alternative to
the court except production of the worker for a deposition.  The defense
showed no particular need to discover what the worker had to say other than
that the worker might be able to cast doubt on the victim's credibility.
The worker was not a witness to the alleged crime, and other witnesses known
to defendant were also in the victim's presence after the ordeal.  No
indication was forthcoming that the worker might be privy to exculpatory
information or any information not also known to others.
     Defendant argues that evidence at trial showed two discrete episodes of
sexual assault and that it was plain error for the court to fail to require
the State to elect between them.  No error was made.  An election is not
required where acts are so closely related in time and circumstances as to
constitute one continuous felonious transaction.  State v. Bailey, 144 Vt.
86, 98, 475 A.2d 1045, 1052 (1984)).  This was such a case.
     Defendant's contention that the information did not adequately charge
him with sexual assault because it describes no specific sexual act is also
without merit.  Here the information tracking the statutory language,
together with the accompanying affidavits of probable cause, reasonably
indicated the exact offense charged and enabled defendant to make
intelligent preparation for his defense.  State v. Phillips, 142 Vt. 283,
288, 455 A.2d 325, 328 (1982).
     Finally, defendant contends that the court erred in denying his motion
for judgment of acquittal on the burglary charge on the ground that there
was no evidence that he entered the victim's residence with the intent to
commit sexual assault.  Rather, he argues his repeated statements to the
victim that he was going to kill her establish that his intent upon entering
her home was murder, not sexual assault.  Noting the cheek of this claim, we
need only say that nothing in the law supposes that a defendant must have
but one purpose for a burglary.  Although his words may have forecast a
murder, defendant's actions demonstrated another purpose.
                                        FOR THE COURT:

                                        Associate Justice