State v. Pellerin

STATE_V_PELLERIN.94-388; 164 Vt 376; 670 A.2d 255

[Opinion Filed 27-Oct-1995]

[Motion for Reargument Denied 16-Nov-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. 94-388


 State of Vermont                                  Supreme Court

                                                   On Appeal from
     v.                                            District Court of Vermont,
                                                   Unit No. 1, Windsor Circuit

 Thomas Y. Pellerin                                September Term, 1995



Paul F. Hudson, J.

M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for plaintiff-appellee

William A. Hunter, Cavendish, for defendant-appellant


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



       GIBSON, J.  Defendant Thomas Y. Pellerin appeals his conviction for
  sexual assault of a person under the age of sixteen, 13 V.S.A. §
  3252(a)(3).  He claims that there was insufficient evidence to support his
  conviction and that he was not given a fair trial due to judicial bias,
  improper jury selection proceedings, and improper testimony at trial and at
  sentencing.  We affirm.

       On March 23, 1992, defendant entered a conditional nolo plea to the
  crime charged and pursued an appeal to this Court concerning suppression of
  his oral waiver of Miranda rights. Prior to sentencing, the State provided
  defendant with certified copies of his prior Vermont convictions for sexual
  assaults in 1972, 1976 and 1990, and with certified copies of his criminal
  convictions in New Hampshire and Massachusetts.  The victim of the assault
  in 1972 testified at the sentencing hearing on July 13, 1992.  Judge Robert
  Grussing sentenced defendant to

 

  prison for twelve to eighteen years.  On appeal of that conviction, we
  reversed and remanded on the ground that defendant's oral Miranda waiver
  was not valid under Vermont's public defender act.  State v. Pellerin, 161
  Vt. 229, 232, 637 A.2d 1078, 1080 (1993).

       On remand, defendant was scheduled for trial before Judge Paul Hudson. 
  Defendant moved to disqualify Judge Hudson, arguing that Judge Hudson,
  while serving as state's attorney, had signed the information charging
  defendant with the sexual assault that resulted in his 1972 conviction.  A
  different prosecutor amended the 1972 information and tried the case.  The
  administrative judge for the trial courts denied defendant's recusal
  motion, finding that Judge Hudson had no memory of the 1972 case, that his
  participation in that case was de minimis, and that the motion for recusal
  was a more appropriate issue to raise at sentencing.

       The case went to trial on March 21, 1994.  During jury selection,
  defendant asked potential jurors about their experience, if any, as victims
  of sex crimes or as relatives of victims of sex crimes.  The court removed
  some prospective jurors for these reasons but denied defendant's challenges
  for cause to remove three other prospective jurors who had been or had
  known victims of sex crimes.  The court also denied defendant's challenge
  for cause to remove a prospective juror whose comments suggested possible
  bias against defendants accused of sex crimes and against defendants who
  refused to take the stand at trial.  Defendant exercised peremptory
  challenges to remove all four of the disputed venire members.

       The jury returned a guilty verdict.  At sentencing, the State
  reintroduced the same documents it had provided for the 1992 sentencing
  proceeding.  Although the victim of defendant's 1972 assault did not
  testify at the second sentencing hearing, the victim of defendant's 1990
  assault did testify.  Judge Hudson sentenced defendant to eighteen to
  twenty years in prison.

                                I.

       Defendant argues that the trial court should have acquitted him
  because there was insufficient evidence that the alleged offense occurred
  within the State of Vermont.  He claims

 

  that the victim's testimony establishes that the only bridge she and
  defendant crossed before the incident led into New Hampshire and the only
  bridge traversed after the incident was a toll bridge leading from New
  Hampshire to Vermont.  In reviewing the court's denial of defendant's
  motion, we consider whether the evidence presented by the State, when taken
  in the light most favorable to the prosecution and excluding any modifying
  evidence, sufficiently and fairly supports a finding of guilt beyond a
  reasonable doubt.  State v. French, 152 Vt. 72, 81-82, 564 A.2d 1058, 1063
  (1989).

       Viewing the evidence in the light most favorable to the State, we find
  ample evidence to support a finding of guilt beyond a reasonable doubt. 
  The victim consistently testified that, after the incident, the car crossed
  a toll bridge and paid a toll, then crossed the Bellows Falls bridge back
  into Vermont.  The evidence showed that, at the toll bridge in question,
  the toll is paid on the New Hampshire side of the border.  Further, when
  she went on a drive with a state trooper, the victim was able to identify a
  place in Vermont as the place where the offense had occurred. 
  Consequently, the victim's testimony, when coupled with the location of the
  toll, provides adequate evidence for a jury to find, beyond a reasonable
  doubt, that the incident took place in Vermont.

                                II.

       Defendant claims that Judge Hudson had a responsibility to recuse
  himself when he learned of his involvement in prosecuting defendant for a
  prior offense.  Defendant cites Canon 3C of the Code of Judicial Conduct,
  A.O. 10 (Supp. 1988), which states that a  judge "shall disqualify himself
  in a proceeding in which his impartiality might reasonably be questioned,"
  Canon 3C(1), or where "he has a personal bias or prejudice concerning a
  party, or personal knowledge of disputed evidentiary facts concerning the
  proceeding . . . ." Canon 3(C)(2). Defendant argues that Judge Hudson's
  role in signing the 1972 information against him meant that the judge's
  impartiality could "reasonably be questioned" when he presided over this
  case.

 


       One seeking judicial disqualification must clearly and affirmatively
  show bias or prejudice.  Cliche v. Fair, 145 Vt. 258, 261-62, 487 A.2d 145,
  148 (1984).  In the present matter, the administrative judge found that
  Judge Hudson did not recall charging defendant twenty-two years earlier and
  ruled that Judge Hudson's role in the earlier case was de minimis in
  nature.  Defendant produced no evidence to refute these findings.  Rather,
  he speculates that the trial judge was tempted to seek vengeance as a
  result of the prior victim's criticisms of the plea agreement that was
  reached in the 1972 case.  We recently held that a defendant failed to show
  judicial bias or prejudice where the trial judge did not recall
  representing the defendant in a case eleven years earlier, and where the
  defendant did not show that the judge's recollection was faulty or that her
  former representation caused any bias or prejudice towards the pending
  case.  State v. Cleary, 161 Vt. 403, 405-406, 641 A.2d 102, 104 (1994). 
  Similarly, in this case, defendant failed to produce any evidence that
  Judge Hudson was mistaken as to his lack of recollection or that his former
  involvement caused any bias or prejudice toward defendant. In addition,
  defendant failed to renew his recusal motion at sentencing, despite the
  administrative judge's invitation to do so.

       Defendant argues, however, that Judge Hudson's imposition of a more
  severe sentence upon remand establishes a presumption of vindictiveness
  under North Carolina v. Pearce, 395 U.S. 711 (1969).  In Pearce, the United
  States Supreme Court saw no constitutional bar to "a more severe sentence
  upon reconviction," id. at 723, but held that when a defendant receives a
  higher sentence after a new trial, the reasons for the enhanced punishment
  "must affirmatively appear" to assure the absence of "retaliatory
  motivation on the part of the sentencing judge." Id. at 725-26.  As we
  recognized in State v. Percy, 156 Vt. 468, 595 A.2d 248 (1990), cert.
  denied, 502 U.S. 927 (1991), however, "[W]here `different sentencers
  assessed the varying sentences' there is no Pearce presumption of
  vindictiveness."  Id. at 482, 595 A.2d  at 256 (quoting Texas v. McCullough,
  475 U.S. 134, 140 (1989)).  Here, Judge Grussing sentenced defendant
  following his conditional plea, whereas Judge Hudson sentenced defendant
  following

 

  the jury trial.  The Pearce presumption does not apply.

       "`Where the [Pearce] presumption does not apply, the defendant must
  affirmatively prove actual vindictiveness.'"  Id. at 482, 595 A.2d  at 256
  (quoting Wasman v. United States, 468 U.S. 559, 569 (1984)).  Pearce and
  subsequent cases indicate that our concern for potential vindictiveness
  should focus on the "imposition of a penalty upon the defendant for having
  successfully pursued a statutory right of appeal or collateral remedy." 
  Pearce, 395 U.S.  at 724; see Wasman, 468 U.S.  at 568;  Blackledge v. Perry,
  417 U.S. 21, 25 (1974).  Defendant has not pointed to anything in the
  record to suggest that Judge Hudson was motivated by vindictiveness toward
  defendant's successful appeal.

                               III.

       Defendant contends that he was denied a fair trial because he was
  forced to use peremptory challenges to dismiss potential jurors after the
  trial court denied his challenge for cause.  Before we will determine
  whether a denial of a challenge for cause was erroneous, however, we must
  determine whether the appealing party has preserved the issue for review.
  Percy, 156 Vt. at 477, 595 A.2d  at 253.  To preserve such objection, the
  record must reflect that the challenge for cause was denied, that all of
  the defendant's peremptory challenges subsequently were exhausted, and
  that, given the opportunity, the defendant would have used an additional
  peremptory challenge to strike another juror.  Id.  Parties in criminal
  matters are entitled to six peremptory challenges.  V.R.Cr.P. 24(c)(3).  
  The trial court may remove additional jurors with the aim of allowing both
  parties a fair trial.  State v. Calloway, 157 Vt. 217, 220, 596 A.2d 368,
  371 (1991).  In the instant matter, after exhausting his peremptory
  challenges, defendant voiced dissatisfaction with one member of the panel. 
  With the State's consent, the court removed the juror in question. 
  Defendant raised no further objections to any of the empaneled jurors. 
  Defendant therefore failed to preserve the issue for review.

                               IV.

  Defendant asserts that the trial court erred when it allowed the
  complaining witness to

 

  testify that defendant had warned her of his connections to the Mafia
  and threatened to have her or her family members killed.  He contends that
  the testimony served only to show coercion, and that coercion is not an
  element of sexual assault on a minor.  13 V.S.A. § 3252(a)(3); see State v.
  Searles, 159 Vt. 525, 529, 621 A.2d 1281, 1284 (1993) ("element of force is
  absent from sexual assault of a minor").  We have recognized, however, that
  the use of force is relevant in a trial for sexual assault of a minor.  Id. 
  In the instant matter, the court admitted the challenged testimony to show
  intent, preparation, or plan under V.R.E. 404(b).  We see no error in this
  ruling.  See id. ("Simply put, the way the sexual activity happened was
  relevant to the credibility of the happening.").

       Even if evidence survives the Rule 404(b) test, however, it still must
  pass the balancing test of Rule 403.  State v. Winter, ___ Vt. ___, 648 A.2d 624, 626 (1994).  The trial court has broad discretion in deciding
  Rule 403 questions, and review here is only for abuse of discretion. State
  v. Percy, 158 Vt. 410, 415, 612 A.2d 1119, 1123 (1992).  Defendant argues
  that testimony about Mafia involvement and death threats had no probative
  purpose but had great prejudicial impact on the jury.  We disagree.  In
  State v. Cardinal, 155 Vt. 411, 584 A.2d 1152 (1990), we found no abuse of
  discretion under V.R.E. 403 when, in a sexual assault trial, the trial
  court permitted testimony concerning a purported plot by defendant to kill
  the victim and her fiancé.  Id. at 415, 584 A.2d  at 1155.  As we stated
  there:

    Defendant's initiation of a plot to kill the victim and her fiancé was
    admitted as relevant to defendant's guilty state of mind and the
    existence of a continuing plan or scheme.  Whether defendant himself
    ever took his own talk of murder seriously is not so much the issue as
    the fact that he would "mouth off" about killing [the victim] and her
    fiancé. . . .  Whatever unfair prejudice may have been engendered
    was substantially outweighed by its probative worth.  It was not an
    abuse of discretion to admit it.

  Id. at 415-16, 584 A.2d  at 1155.  For similar reasons, we see no abuse
  of discretion here.

                               V.

       Finally, defendant argues that he was denied a fair sentencing hearing
  because the

 

  sentencing judge allowed the victim from defendant's 1990 sexual
  assault trial to testify although defendant had not received notice of her
  appearance, in violation of V.R.Cr.P. 32(c)(3).  We disagree.

       The State furnished records of defendant's past offenses to defense
  counsel before the sentencing proceedings and reintroduced those documents
  at the sentencing hearing.  Defendant was aware that his past offenses
  would be raised at sentencing and had adequate opportunity to controvert
  any witness's testimony through cross-examination.  Defendant could have
  requested a continuance if he needed time to prepare to cross-examine this
  witness, but he did not do so. Under these circumstances, we see no reason
  to remand for resentencing.

       Defendant also claims that the testimony of the 1990 victim moved
  Judge Hudson to sentence defendant a second time for his past offense. 
  Evidence of a defendant's prior criminal acts is admissible for sentencing
  purposes.  State v. Ramsay, 146 Vt. 70, 81-82, 499 A.2d 15, 22 (1985).  At
  sentencing in this case, Judge Hudson referred to defendant's 1990 offense
  in the context of defendant's lengthy criminal record.  The judge sought to
  illustrate defendant's failure to respond to past attempts at
  rehabilitation and the consequent need, in the judge's words, for the
  "incapacitation" of a "predatory sex offender."  Defendant's inference that
  he was resentenced for the 1990 offense is not supported by the record and
  does not warrant rejection of the legitimate use of sentencing testimony.

       Affirmed.

                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice