State v. Allocco

STATE_V_ALLOCCO.93-048; 162 Vt. 59; 644 A.2d 835

[Opinion Filed May 20, 1995]


 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. 93-048


 State of Vermont                             Supreme Court

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

 Robert Allocco                               January Term, 1994


 Linda Levitt, J.

 Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
   Deputy State's Attorney, Burlington, for plaintiff-appellee

 David J. Williams of Sleigh & Williams, St. Johnsbury, for defendant-
   appellant


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


      MORSE, J.   In this appeal from convictions for sexual assault and lewd
 and lascivious conduct with a child. 13 V.S.A. {{ 3252(a)(3), 2602, we
 decide that defendant's due process right to a fair trial as specified in 12
 V.S.A. { 1943 (confinement and care of jury) was not violated when the jury,
 during deliberations, was allowed to separate overnight.  We also reject
 defendant's other claims that error was committed when his prior bad acts
 and admissions were admitted in evidence and that the trial court denied him
 a fair trial because he was unable to hear adequately in the courtroom.  We
 accordingly affirm.
      In 1990, defendant became friends with the victim, the thirteen-year-
 old son of the woman who cleaned his house and business premises.  In

 

 January 1992, defendant was charged with sexually abusing the boy while he
 was visiting at defendant's home.  During the relationship, defendant
 lavished the boy with gifts, such as, more than a dozen pairs of jeans and
 ten pairs of sneakers, tennis lessons, dental work, and a computer for
 Christmas.  The boy spent considerable time on weekends and school vacations
 at defendant's home, where he played video games, ping pong and tennis, and
 used a computer, watched movies and rode his bicycle.  The boy also spent
 time at defendant's business where he wore a name tag indicating he was a
 vice president.
      Coworkers noticed inappropriate behavior and reported it.  At an
 initial interview by police, the boy did not reveal any wrongdoing by
 defendant.  A day later, however, he did disclose abuse, which, according to
 the boy, occurred a number of times.  One incident was described as
 defendant masturbating him as defendant masturbated himself, and on two
 other occasions, defendant putting a finger into the boy's anus.  These
 incidents were the basis of three charges, one of lewd and lascivious
 conduct with a child and two alleging sexual assault.  Defendant
 acknowledged to police that he had seen the boy naked with an erection, at
 times hugged and kissed him, taken a photograph of the boy with only
 underwear on, and given him a copy of the Kinsey report.  An explanation
 defendant gave to police for the allegation that he had touched the boy's
 penis was admitted in evidence, over defendant's objection.  The
 investigating officer testified:
             I told Mr. Allocco that [the boy] told me directly
           that Mr. Allocco touched him on the penis.  Mr.
           Allocco's response, to me was, "You know, it was locker
           room stuff.  It was there so I grabbed it.  We were just
           fooling around and I told him I would squeeze it if he
           didn't let go."

 

      Defendant was convicted of lewd and lascivious conduct and one of the
 two counts of sexual assault.
                                     I.
      On the last day of trial, at about 4:30 p.m., after the jury had been
 deliberating about two hours, the court told counsel, "A juror is going into
 insulin shock so they would like to stop for now . . . and start tomorrow
 morning."  The following colloquy occurred:
           DEFENSE COUNSEL:  Are we going to have an alternate take
           her place?

           THE COURT:  No.  Because we are stopping now.

           THE COURT OFFICER:  If she gets her shot she will be all
           right.

           DEFENSE COUNSEL:  All right.

           THE COURT:  Eight-thirty tomorrow.

           DEFENSE COUNSEL:  We would, perhaps in the morning have
           an update so that if we need to voir dire the jury.

 A short recess was taken and court and counsel again talked, defense counsel
 expressing concern that the jury had dispersed without receiving
 instructions from the court not to discuss the case or learn about it from
 the media.(FN1)

 

      The next morning, defendant moved for a mistrial on the ground that he
 had not consented to the dispersal of the jury without a cautionary
 instruction.  The court and counsel examined the jury, and the responses
 revealed that nothing improper had occurred which would adversely affect its
 deliberations.  The motion was denied for lack of prejudice to defendant.

 

      The statute governing jury deliberations, 12 V.S.A. { 1943, states:

           Confinement and care of jury

            When the court has committed a cause to its
           consideration, the jury shall be confined until it
           agrees on a verdict or is discharged.  While so
           confined, the jury shall be under the care of an officer
           appointed by the court and sworn for that purpose.

 Our criminal rules moderate the statute by providing, in part, that the
 "court may allow the jury to separate during the trial."  V.R.Cr.P. 23(d).
      Defendant concedes that the jurors may separate after jury
 deliberations have started, but only if defendant expressly consents and the
 trial court gives "cautionary instructions."  Defendant urges us to reverse
 a conviction obtained after a deliberating jury separates even if defendant
 did not object, citing a New York memorandum decision, People v. Coons, 551 N.E.2d 587 (N.Y. 1990).
      Coons is easily distinguished, because New York follows a standard of
 review more expansive than Vermont.  As articulated in Coons, "[e]rrors
 which '"affect the organization of the court or the mode of proceedings
 prescribed by law"' need not be preserved and, even if acceded to, still
 present a question of law for this court to review."  Coons, 551 N.E.2d  at
 588 (quoting People v. Patterson, 347 N.E.2d 898, 902 (N.Y. 1976), aff'd,
 432 U.S. 197 (1977)).  Allowing a jury to separate does not affect the
 subject matter jurisdiction of the court.  There is no equivalent rule
 dispensing with preservation in Vermont.
      We need not decide the scope of the court's discretion, if any, to
 allow a sequestered jury to separate when defendant does not consent.
 Defendant did not object to the dispersal of the jury.  The sole issue

 

 preserved is the claim that the failure to instruct the jury to avoid
 contaminating influences required a mistrial in this case.
      Defendant urges us, "at the very least," to hold that a mistrial is
 required unless the State rebuts a presumption that an uncautioned,
 separated jury is prejudicial.   As a general principle, error does not
 require reversal unless it is prejudicial to the defendant.  See State v.
 Hohman, 138 Vt. 502, 506, 420 A.2d 852, 855 (1980); State v. Roberts, 154
 Vt. 59, 73, 574 A.2d 1248, 1255 (1990) (defendant must show that an
 unresponsive comment in police detective's testimony prejudiced him).
 Notwithstanding our general rule requiring a showing of harm to the moving
 party, any presumption of harm to defendant by the failure to instruct the
 jury prior to separation was rebutted in this case.  No juror indicated when
 asked that anything occurred during separation to cause prejudice.
      Ordinarily, periodic warnings to the jury about improper communications
 are appropriate.  The jury was cautioned at the beginning of the trial not
 to discuss the trial with anyone and to refrain from learning about it from
 the media.  Absent a showing of prejudice, the failure to caution the jury
 during the course of deliberations was not cause for a new trial.
                                     II.
      Defendant claims he was unfairly disadvantaged because the trial court
 admitted evidence that he fondled the victim's penis on an occasion differ-
 ent from the one charged.  Defendant bases his objection on a pretrial
 ruling that excluded evidence of "any other fondling act other than those
 charged."  Defendant's position rests on an assertion that even if the
 evidence was admissible, he "shaped the defense strategy" according to the
 ruling that the fondling evidence would not be allowed.

 

      Sexual activity of this nature with the victim may be admissible under
 the exception to V.R.E. 404(b) to explain, if relevant, the nature of the
 sexual relationship.  See State v. Forbes, 4 Vt. L.W. 309, 310 (Nov. 19,
 1993) (defendant's history of incestuous relationship with daughter, which
 included uncharged misconduct, was admissible because it supplied the
 context within which the charged incidents of sexual contact occurred).
 Defendant's claim of detrimental reliance on the "law of the case," however,
 is incorrect.  See State v. Ryan, 135 Vt. 491, 496-97, 380 A.2d 525, 528-29
 (1977) (court must take into account defendant's strategy to "soften the
 impact" of incriminating evidence in deciding to postpone resolution of
 pretrial motion until time of trial; once decision is made, defendant is
 "entitled to rely on that ruling").
      The court's pretrial ruling was not that defendant's statement about
 "locker room stuff" was inadmissible.  The ruling excluding "any other
 fondling act other than those charged" was not implicated. Defendant's
 statement was not only an admission that he had touched the boy's penis, but
 also an explanation of why he did so.  The fact that defendant's explanation
 of how the touching occurred differed from the boy's does not make it
 inadmissible under the court's pretrial ruling.  It was obvious that the
 State did not offer defendant's explanation to prove that "locker room
 stuff" occurred; rather, it was offered to prove that defendant did, in
 fact, wrongfully touch the victim and that his explanation of why was merely
 a self-serving falsehood.
      Moreover, defendant's claim that his trial strategy suffered because he
 was not expecting that his admission would be allowed in evidence is not
 borne out.  Defendant's statement was the subject of an unsuccessful motion

 

 to suppress, thereby alerting him that the State wished to use it.  Even if
 the jury might believe defendant was talking about another touching
 incident than the one charged, defendant's version did not describe it as
 "fondling."  It was "wrestling" and "locker room stuff," not a description
 of sexual touching.  No mention below was made by defendant that his trial
 strategy was undermined nor does defendant convincingly explain on appeal
 how it was undermined.  Defendant's claim of unfair surprise must be
 rejected.
                                    III.
      The police questioned defendant at his office about their suspicions.
 No Miranda warnings were given.  He claims the circumstances of the police
 presence placed him in a situation where he was not free to decline the
 interview.  He contends that, being in custody, Miranda warnings were
 required, and in their absence his statements should have been suppressed.
 The trial court determined defendant was not in custody.  We agree with the
 court's assessment.
      A police detective in plain clothes went to defendant's place of
 business to question him.  Defendant was the sole suspect for allegedly
 sexually abusing the victim.  Probable cause had already been found and a
 warrant to search defendant's residence had already been issued.  The
 officer indicated to defendant that it would be best that they speak alone.
 Defendant agreed, and the interview, which lasted about an hour, was
 conducted in defendant's office.  Defendant was not arrested or cited before
 the officer left.
      Defendant does not challenge the facts found by the trial court.  He
 argues they demonstrate that defendant was in custody, primarily because the

 

 detective told defendant he wanted to question him alone, even though
 defendant, who was nervous at the time, had asked him if a business partner
 could be present.  In situations analogous, but even more "police dominated"
 than this, we have consistently upheld a trial court finding that defendant
 was not in custody for Miranda purposes.  See, e.g., State v. Lancto, 155
 Vt. 168, 171, 582 A.2d 448, 449 (1990) (questioning in police cruiser not
 "custodial" unless police conduct was "'calculated to break the suspect's
 will'")(quoting State v. Olsen, 153 Vt. 226, 230, 571 A.2d 619, 622
 (1989)(quoting Oregon v. Elstad, 470 U.S. 298, 312 (1985))).  The trial
 court's determination was not clearly erroneous.  Id.
                                     IV.
      Defendant's final argument is that he had difficulty hearing during the
 trial, and when he made the court aware of the problem, adequate steps were
 not taken to address it.  He claims his right to confrontation was thereby
 violated.  We agree with defendant that a court should take reasonable steps
 to accommodate any physical problems a defendant may have interacting with
 others during the proceedings.  In this case, however, whatever merit there
 is to defendant's claim was not preserved for appeal.
      After defendant made known his difficulty hearing in the courthouse's
 largest courtroom, the court moved the trial to an intermediate-sized court-
 room.  If defendant, as he claims, still had problems hearing in the smaller
 courtroom,  the court would have been on notice to again try to remedy the
 problem; for instance, by asking participants to speak louder.  The court
 had not moved the proceedings to the smallest courtroom, presumably because
 that alternative, as pointed out by the State, had the witness stand very
 close to the defense table.  Rather than take issue with the State and ask

 

 that the trial take place in the smallest courtroom, defendant merely
 advised the court that the mid-sized courtroom was subject to "constant
 interruption and noise."  At no time, until after the verdict, did
 defendant express he could not reasonably hear during the trial and object
 to the choice of courtrooms or suggest that another one would have suited
 him better.  The claim was waived.
      Affirmed.



                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice




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                                 Footnotes

FN1.    The colloquy went as follows:
 THE COURT:  They are gone.
 DEFENSE COUNSEL:  What do you mean, they are gone?
 THE COURT:  When we went under the stairs, we saw one
 straggling out, and I said, "Are you the first or the
 last to leave?"  And he said, "The last to leave."
 PROSECUTOR:  My suggestion is that I would put a phone
 call in to WCAX and ask them not to air it tonight.  If
 it's not on the air there is nothing they will see.
 I'll make that request.
 DEFENSE COUNSEL:  Well, there was -- for example, there
 was an article in the Free Press that basically said
 child abusers are everywhere.  They are not a
 stereotype, and this is how you present it, boys and
 girls, so I don't know whether it will be in the Free
 Press.
 PROSECUTOR:  Well, they weren't here today.  I'll make
 the call and see if we can work it out.
 THE COURT:  Okay.
 PROSECUTOR:  We don't want to do this again.
 THE COURT:  If you talk to Brian, tell him I asked,
 too.
 DEFENSE COUNSEL:  I spoke with him outside and the word
 I got from the cameraman was unless there was a verdict
 they weren't going to air anything, but they don't
 always tell me what they are going to do.
 THE COURT:  Well, that's good news.  Okay.  Thank you.
 COURT OFFICER LITTLE:  I told them not to read any
 newspaper articles on this case, don't watch any TV on
 this case, and anything else that happens to come on TV
 that has anything to do with this type of case, please
 avoid watching it.
 PROSECUTOR:  Very good, Sam.
 DEFENSE COUNSEL:  We should note for the record that Mr.
 Little is not a Court officer sworn to take care of the
 jury.  This jury.