State v. Wood

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 91-362


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
James E. Wood                                Unit No. 1, Rutland Circuit

                                             June Term, 1991


David T. Suntag, J.

Peter Neary, Rutland County Deputy State's Attorney, Rutland, for plaintiff-
  appellee

Matt Harnett of Lorentz, Lorentz and Harnett, Rutland, for defendant-
  appellant



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


     MORSE, J.   Defendant appeals an order setting bail at $5,000 cash or
surety (condition number 10, Condition of Release Order).  The trial court
set monetary bail solely because defendant was found to be a threat to the
integrity of the judicial process.  We reverse and remand.
                                    I.
     On July 15, 1991, defendant was arraigned on a charge of assaulting
his wife in violation of 13 V.S.A. { 1023(a)(1) (misdemeanor simple
assault).  The trial court set bail at $5,000 with conditions that defendant
not possess alcoholic beverages or contact his wife.
     Defendant was unable to post bail, and a bail review hearing was held
on July 19, 1991.  Defendant called the victim to testify.  She said in
effect that the incident was overblown and she wanted her husband released.
While the victim's testimony was found to mitigate the facts as initially
presented in the affidavit of probable cause and the victim's written state-
ment, the court disbelieved much of what she said.  The court found that
defendant had been convicted for simple assault twice before, one of them
upon his wife.  The court adopted findings made at arraignment that during a
drunken argument defendant threatened to kill his wife and then punched her
in the mouth, breaking a tooth and knocking her to the ground, continuing
to hit and threaten to kill her.
     The court concluded,
          cash bail was not imposed and is not being considered
          to remain in place due to any demonstrated risk to not
          appear which could not be covered by non monetary con-
          ditions of release.  Cash bail was imposed directly
          because of a ... danger to the integrity of the
          [judicial] process, specifically, the danger [and]
          threats ... to the particular victim in this case.

                                    II.

     Threat to the integrity of the judicial process has been recognized as
a ground to deny or revoke bail.   See, e.g., Hemingway v. Elrod, 60 Ill. 2d 74, 79-80, 322 N.E.2d 837, 840 (1975), where the court stated:
          In our opinion the constitutional right to bail must be
          qualified by the authority of the courts, as an incident
          of their power to manage the conduct of proceedings
          before them, to deny or revoke bail when such action is
          appropriate to preserve the orderly process of criminal
          procedure.  This action must not be based on mere sus-
          picion but must be supported by sufficient evidence to
          show that it is required.  Thus keeping an accused in
          custody pending trial to prevent interference with
          witnesses or jurors or to prevent the fulfillment of
          threats has been approved.

 We express no opinion here on the validity of the "judicial process"
qualification to the right to bail under Chapter II Section 40 of the
Vermont Constitution because we can dispose of this appeal on a narrower
ground and the issue was not raised by the appellant.  See Vt. Const. ch. II
{ 40.  The question is whether this doctrine, assuming its constitution-
ality, was properly applied in this case.
     Vermont requires that a person charged with a crime like simple assault
be released pending trial in accordance with 13 V.S.A. { 7554.  Section 7554
involves the consideration of two factors.  The  first is the likelihood
that defendant will attend future court appearances.  13 V.S.A. {
7554(a)(1).  The second is the danger defendant may pose to the public.  13
V.S.A. {  7554(a)(2).  The statute separately specifies in subsections (1)
and (2) conditions that may be imposed for the purposes of appearance and
protection of the public.  The statute explicitly authorizes monetary con-
ditions in the list of conditions to assure appearance.  13 V.S.A. {
7554(a)(1)(C) and (D).  On the other hand, the list of conditions authorized
for the protection of the public does not specifically include monetary
conditions.  Section 7554(a)(2)(C) states, however, that the court may
"impose any other condition found reasonably necessary to protect the
public, except that a physically restrictive condition may only be imposed
in extraordinary circumstances".  13 V.S.A. { 7554(a)(2)(C).  The narrowed
issue, then, is whether { 7554(a)(2)(C) (imposition of "any other condition
found reasonably necessary to protect the public") includes monetary
conditions.  We hold that it does not.
     In Vermont, a defendant does not forfeit bail for breach of
nonappearance conditions of release.  State v. Cardinal, 147 Vt. 461, 464,
520 A.2d 984, 986 (1986) (no authority to order forfeiture of cash bail for
a breach of condition of release other than an appearance condition).
Consequently, had defendant posted $5,000 and violated the condition that he
leave the victim alone, he would not forfeit the monetary bail.
      The imposition of $5,000 bail in this case, therefore, would only
protect the victim and the integrity of the judicial process if it could
not be met.  This may have been what the trial judge had in mind.  Yet, the
imposition of bail in an amount that cannot be raised by an accused, in
order to obtain his incarceration, is precisely what the law forbids.  The
point is stated clearly in our cases.  See, e.g., State v. Mecier, 136 Vt.
336, 338, 388 A.2d 435, 437 (1978) ("anticipatory test of a danger to the
public as a justification for refusing bail" is forbidden);  State v. Pray,
133 Vt. 537, 541, 346 A.2d 227, 229 (1975) ("The purpose of bail, as
presently constitutionally mandated, is to assure the defendant's attendance
in court ....").
     In order to achieve the purpose of using the threat of forfeiture of
money to encourage a peaceful relationship with the victim, the court had
available the process for the posting of a peace bond under 13 V.S.A. {
7573.  See State v. Weller, 152 Vt. 8, 11, 12-14, 563 A.2d 1318, 1320-21
(1989) (imposition of peace bond not a pretrial bail measure, but an
"independent proceeding" intended to prevent violence in the future).
Imposition of a peace bond, however, does not include the posting of cash.
Id. at 15, 563 A.2d  at 1322.
      Bail may be revoked when certain bail conditions are violated, among
them, "that the accused has intimidated or harassed a victim ... in viola-
tion of a condition of release; or ... violated a condition ... of release
which constitute[s] a threat to the integrity of the judicial system."  13
V.S.A. { 7575(1) and (3).  But the court could not revoke bail under the
authority of 13 V.S.A. { 7575 for the simple reason that this was not a
revocation proceeding and there was nothing to revoke.
     Condition number 10 on the Conditions of Release Order, requiring that
defendant execute a bail bond with sufficient sureties or deposit cash in
the amount of $5,000 is reversed.  We remand for further proceedings on the
issue of release.


                                        FOR THE COURT:



                                        ________________________________
                                         Associate Justice