State v. Martel

STATE_V_MARTEL.94-225; 164 Vt 501; 670 A.2d 845

[Filed:  22-Dec-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. 94-225


State of Vermont                             Supreme Court

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

Eugene P. Martel                             November Term, 1995


David Suntag, J. 

       Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Judith Brownlow, Norwich, for defendant-appellant


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


       ALLEN, C.J.   Defendant Eugene Martel appeals his conviction for
  sexual assault, claiming that the trial court erred by (1) not requiring
  the State to elect which of three alleged sexual acts it relied upon to
  prove the single count of sexual assault, (2) denying his motion for a
  mistrial because evidence of a prior assault by defendant on complainant
  was elicited during redirect examination, (3) not sua sponte declaring a
  mistrial based on an improper statement in the State's closing argument,
  and (4) denying his motion for a mistrial and his motion for a new trial
  based on jury taint.  We affirm.

       Prior to the events that gave rise to this prosecution, defendant had
  known complainant for more than two years.  The two had maintained a close
  and intimate relationship, and had even discussed marriage.  Their
  relationship included consensual sexual relations.  Complainant visited
  defendant at his apartment for dinner on the night of January 22, 1993. 
  After eating dinner and conversing, complainant said that she wanted to go
  home to care for her children.  Defendant became angry and told her he
  would hurt her if she did not stay.  He then forced her

 

  to have sex with him three separate times.  Afterwards, he inquired as to
  whether she was injured, but still refused to let her leave until the next
  day.

       Complainant refused contact with defendant during the following week. 
  She would not accept his phone calls and would not visit his apartment. 
  When the two encountered each other on the street on January 28, defendant
  forced her to accompany him back to his apartment.  On the way to his
  apartment, complainant pounded on the door of a neighboring apartment. 
  When the door opened, she rushed inside.  Defendant finally agreed to let
  her go home if she gave him a hug, which she did.

       As a result of the January 28 incident, an arrest warrant was issued
  for defendant.  He was discovered hiding in the attic of his apartment
  building and apprehended.  When the police interviewed complainant
  regarding the incident and asked why she was so frightened of him, she
  revealed the events of January 22.

       The State charged defendant with one count of sexual assault. 
  Following a jury trial, the district court entered a judgment convicting
  defendant of sexual assault under 13 V.S.A. § 3252(a)(1)(A), and sentenced
  him to fifteen to twenty years imprisonment. 

                                     I.

       Defendant contends on appeal that the district court erred by allowing
  the State to introduce evidence of three separate sexual acts in support of
  one count of sexual assault.  At a pretrial conference, defendant sought
  clarification as to which of the three sexual acts the State had elected to
  rely upon to prove the charged crime.  The State argued that all three acts
  constituted the offense.  The court noted that the three events were
  temporally distinct, and therefore could not be construed as one event; it
  also expressed concerns about duplicity.  The court then concluded that,
  absent some objection, the jury would be instructed that it must be
  unanimous about which of the three acts constituted the offense.  Defendant
  acknowledged the court's proposed instruction but did not object at the
  pretrial conference or when the jury was instructed.  Because defendant
  failed to object at trial, we will reverse only if we find plain

 

  error.  State v. Senna, 154 Vt. 343, 346, 575 A.2d 200, 202 (1990).

       As a general rule, where the State charges a person with one unlawful
  act, but the evidence reflects two or more acts, the State can obtain only
  one conviction and should be required to elect which act constituted the
  charged crime.  State v. Bailey, 144 Vt. 86, 98, 475 A.2d 1045, 1052
  (1984).  If the trial court fails to require an election, we will reverse
  unless the trial court gives an appropriate jury instruction.  See State v.
  Bonilla, 144 Vt. 411, 416, 477 A.2d 983, 986 (1984) (trial court must
  require State to make election or, alternatively, give appropriate jury
  instruction).  The primary danger in not requiring an election is that some
  jurors may convict on evidence of one act while other jurors may convict on
  evidence of a different act.  As a result, "[t]here will be no unanimous
  verdict as to defendant's guilt in regard to the single offense charged." 
  Bailey, 144 Vt. at 98, 475 A.2d  at 1052.  A similar danger is that jurors
  may be swayed by the quantum of proof presented as to all the acts when
  there is insufficient proof on any one act alone.  Id.

       Here, the district court gave an instruction carefully tailored to
  eliminate these dangers.  Defendant was charged with sexual assault under
  13 V.S.A. § 3252(a)(1)(A), which defines sexual assault as when "a person .
  . . engages in a sexual act with another person and compels the other
  person to participate in a sexual act, without the consent of the other
  person."  The court instructed the jury that in order to find defendant
  guilty of this crime, it must find that (1) he engaged in one of the three
  alleged sexual acts, (2) he compelled complainant to participate in that
  act, and (3) complainant did not consent to participating in that sexual
  act.  The court specifically instructed the jury that each juror must agree
  as to which of the three sexual acts constituted the first element of the
  crime, and that they must look to the evidence of that individual act in
  order to convict.  Such specific instruction eliminates the dangers noted
  in Bailey and comports with the rule announced in Bonilla.  There was no
  error.Defendant also claims that the absence of an election here prejudices
  him because it is not clear which of the three acts resulted in the
  conviction for sexual assault.  He claims that this uncertainty leads

 

  to difficulty with review of the case and with prospects for his
  rehabilitation.  Defendant has not demonstrated how this uncertainty leads
  to a problem with review, and the similarity of the acts could not affect
  the prospects for rehabilitation.  No prejudice resulted from the absence
  of election.

                                     II.

       Defendant next argues that the district court erred by denying his
  motion for a mistrial when complainant's testimony went beyond that
  anticipated from voir dire.  The denial of a motion for mistrial is within
  the discretion of the trial court and will not be reversed absent an abuse
  of discretion.  State v. Turner, 145 Vt. 399, 402, 491 A.2d 338, 340
  (1985).

       The testimony to which defendant objected came during redirect
  examination.  Defendant attacked complainant's credibility during
  cross-examination by showing that she had lost a job by lying to her
  employer.  The trial court then permitted the State to rehabilitate its
  witness by eliciting testimony that would explain the lie.  Because the
  circumstances surrounding the lie were potentially prejudicial to
  defendant, the State presented the testimony to the court out of the
  presence of the jury.  During that proceeding, complainant revealed that
  she had been staying with defendant on the day in question.  He had refused
  to drive her to work, suggesting that she call her supervisor with an
  excuse.  She also revealed that she did not want to go to work because she
  had bruises on her neck, arms, legs, and chest, and bruises shaped like
  fingers on her neck.  The State noted for the record that defendant had
  caused the bruises, but stated that it did not intend to present that fact
  to the jury.  The court decided that, although some prejudice arose by way
  of inference, complainant was not going to link defendant to the bruises
  and the prejudice was therefore minimal.

       Complainant's testimony before the jury varied from the testimony she
  gave during voir dire.  Instead of simply stating that she had
  finger-shaped bruises on her neck, she said that her neck "was covered with
  fingerprints from being choked."  At that point defendant objected and
  moved for a mistrial, arguing that the testimony was extremely prejudicial. 
  The district court

 

  heard argument on the motion and concluded that, although the statement was
  more prejudicial than the testimony given in voir dire, it did not warrant
  a mistrial.  We agree.  The jury would have been able to draw the inference
  that the bruises on complainant's neck had been caused by a person even if
  complainant had given the same testimony she gave in voir dire.  Making the
  inference clearer by mentioning choking did not further prejudice defendant
  because the question of whether the bruises were caused by him or someone
  else was not answered by complainant's testimony.  Because the court
  exercised its discretion in a reasonable manner, its denial of defendant's
  motion for a mistrial must stand.  See State v. White, 150 Vt. 255, 257,
  551 A.2d 1204, 1205 (1988) (trial court's denial of motion for mistrial
  will be reversed only if discretion was totally withheld or exercised on
  grounds clearly untenable or unreasonable).

                                    III.

       Defendant next argues that the district court erred by failing to
  declare a mistrial after the State made a statement in its closing argument
  that was not supported by the evidence.  Although defendant objected to the
  argument at trial, he failed to move for a mistrial at that time and brings
  this argument for the first time on appeal.  Again, we will reverse only
  for plain error. 

       The record reveals that defendant argued in closing that he and
  complainant maintained a close and consensual relationship.  He also argued
  that, if the relationship was as violent and abusive as complainant
  alleged, it defied common sense for complainant to remain involved with
  defendant as she did.  The prosecutor rebutted defendant's argument by
  stating that "from our own experience it's universal knowledge today that
  there are people who remain involved with someone in an intimate
  relationship after physical abuse."  No evidence was presented at trial to
  support this statement.  Defendant objected, arguing that this statement
  unfairly prejudiced his right to a fair trial because it implied a history
  of physical abuse and suggested a need for the jury to protect complainant
  from defendant.

       Comments made during a closing argument will not amount to plain error

 

  unless they are so manifestly and egregiously improper that there is no
  room to doubt the prejudicial effect.  Bailey, 144 Vt. at 100, 475 A.2d  at
  1053 (1984).  This Court has held that prejudice from improper argument may
  be determined by a number of factors, including the frequency of the
  improper argument, State v. Ayers, 148 Vt. 421, 426, 535 A.2d 330, 334
  (1987), whether the remark was inflammatory and attacked defendant's
  character, State v. Ross, 130 Vt. 235, 238, 290 A.2d 38, 40 (1972), and
  whether the court gave curative instructions, Bailey, 144 Vt. at 101, 475 A.2d  at 1054.  Considering these factors, any prejudice to defendant by the
  State's closing argument was negligible.  The error occurred only once, and
  defendant's objection was discussed at the bench outside the hearing range
  of the jury.  The comment was not inflammatory and did not attack
  defendant's character.  Finally, the court gave instruction to the jury
  that counsel's arguments were not evidence and that any conviction must
  rest exclusively on the evidence.  Because no prejudice to defendant
  resulted from the State's closing argument, the district court did not err
  by failing to declare a mistrial.  We reach the same conclusion regarding
  defendant's argument that the trial court erred by denying his motion for a
  new trial.

                                     IV.

       Finally, defendant argues that the district court erred when it denied
  his motion for a mistrial and his motion for a new trial based on jury
  taint following the discovery in the jury room of a local newspaper
  containing a potentially prejudicial article about the trial.  A trial
  court's ruling on such motions is discretionary and will not be set aside
  absent an abuse of discretion.  See Crump v. P & C Food Markets, Inc., 154
  Vt. 284, 298, 576 A.2d 441, 449 (1990) (denial of motion for new trial will
  stand unless trial court abused its discretion); State v. Miller, 151 Vt.
  337, 339, 560 A.2d 376, 377 (1989) (motion for mistrial within discretion
  of trial court).

       A party claiming jury taint must show that "an irregularity . . . had
  the capacity to influence jury deliberations."  State v. Schwanda, 146 Vt.
  230, 232, 499 A.2d 779, 781 (1985).  Following the discovery of the
  newspaper, the court questioned each juror regarding the newspaper article. 
  The court concluded that the mere presence of the newspaper in the jury
  room had no capacity to influence the result because the newspaper was
  concealed inside a bag and none of the jurors knew about or had read the
  article in question.  Because the court properly exercised its discretion,
  the denial of defendant's motions must stand.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice