STATE_V_MADISON.95-046; 163 Vt 390; 659 A.2d 124
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
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Washington Circuit
Jason Madison March Term, 1995
David Suntag, J.
Phillips B. Keller, Washington County Deputy State's Attorney, Barre, and
Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
General, Montpelier, for plaintiff- appellee
Peter S. Sidel and Diana Pikulski of Sidel & Pikulski, Waitsfield,for
PRESENT: Morse, J.
MORSE, J. Defendant Jason Madison appeals to a justice of this Court
for review de novo of an order of the Washington District Court denying him
bail under Chapter II, Section 40 of the Vermont Constitution and 13 V.S.A.
7553a. Defendant was charged with two counts of sexual assault and issued
a citation to appear in court on January 26, 1995. Before his first
appearance, however, defendant nearly ran over the alleged victim with his
Jeep. Because of this incident, defendant was arrested and arraigned on both
sexual assault charges. Defendant was also arraigned on contempt charges for
violating conditions of release related to other crimes and on one count of
obstructing justice for nearly running down the victim.
A full bail hearing commenced on January 18, 1995, and was completed the
next day. The district court concluded that the evidence of defendant's guilt
was great and found by clear and convincing evidence that defendant's release
posed a substantial threat of physical violence
to the victim and that no combination of probation conditions would
reasonably prevent the violence. Accordingly, the court denied bail on
Defendant sought a hearing de novo and immediately challenged the
procedure set forth in the Emergency Amendment to Vermont Rule of Appellate
Procedure 9 (allowing review de novo), contending that defendant was entitled
to no less than a second full bail hearing. The reviewing justice referred
this issue to the full Court which upheld the procedure outlined in V.R.A.P.
9(b)(1)(C). See State v. Madison, No. 95-046, slip op. at 18 (Mar. 1,
1995) (per curiam). Defendant's motion under that rule for leave to present
additional evidence because time was not sufficient to adequately prepare for
the first court hearing was denied in an unpublished entry order that stated,
"[i]f lack of time per se were good cause, it would be grounds to present
additional evidence in every bail review. More specified reasons are
necessary to establish good cause." Defendant and the State were then given
the opportunity to brief and argue.
Defendant quarrels with the reviewing justice's requirement that issues
be raised and briefed. In its opinion of March 1, the Court stated that
"[t]he justice must review the record created in the district court,
including the transcript or video tape, and make an independent determination
based upon that record." State v. Madison, slip op. at 2. Defendant
believes that this statement requires the reviewing justice to make a second,
independent determination on every factual and legal issue implicated in the
District Court proceedings, whether raised on appeal or not, thereby
relieving defendant of any obligation under the rules of appellate procedure.
V.R.A.P. 28; see also State v. Lynaugh, 158 Vt. 72, 76 n.2, 604 A.2d 785,
787 n.2 (1992) (declining to reach inadequately briefed issues); Rowe v.
Brown, 157 Vt 373, 379, 599 A.2d 333, 336-37 (1991) (issues not raised in
brief are waived). V.R.A.P. 9(b)(1)(C) provides, however, that the single
justice is to review the record as "presented by the parties." Issues in this
appeal have been raised haphazardly, but, given the untraditional nature of
these proceedings, I address all points mentioned at any point.
In conducting a review de novo of a challenged finding or conclusion, a
justice must come to an independent decision based on the record. V.R.A.P.
9(b)(1)(C); State v. Madison, slip op. at 2; see also United States v. Leon,
766 F.2d 77, 80 (2d Cir. 1985) (district court must reach independent
conclusion, not simply defer to judgment of magistrate under federal bail
statute). The justice need not pay any deference to decisions of the lower
court when reviewing the challenged findings and conclusions. See State v.
Madison, at 2; id. at 10-12 (comparing different applications of de novo
review). Of course, nothing prevents a reviewing court from adopting
unchallenged findings and conclusions of the trial court, and I do.
A person may not be held without bail under 13 V.S.A. 7553a unless
"the evidence of guilt is great." Defendant argues first that our
interpretation of the identically-worded standard requiring that evidence of
guilt be "great" to hold a person charged with an offense punishable by life
imprisonment, 13 V.S.A. 7553, should not apply to the recently enacted
In State v. Blackmer, 160 Vt. 451, 454, 631 A.2d 1134, 1136 (1993), we
reaffirmed a determination that evidence is "great" if a prima facie case,
the standard under V.R.Cr.P. 12 (d), is proved. Defendant would have us
require the addition of two standards under 7553a, consideration of
modifying evidence and credibility of witnesses.
It is apparent, however, that the term "evidence of guilt is great" is
not an ill-defined legal term of art. Its meaning became fixed when this
Court decided State v. Duff, 151 Vt. 433, 439-40, 563 A.2d 258, 262-63
(1989). The evidence, viewed in the light most favorable to the state and
excluding the effects of modifying evidence, must "fairly and reasonably"
show defendant guilty beyond a reasonable doubt. Id. at 439, 563 A.2d at
263. The legislature has not suggested in any manner that it intended to
depart from its meaning as defined in Duff. Consequently, the court must
apply the 12(d) standard against "substantial, admissible evidence." Id. at
440, 563 A.2d at 263 (emphasis in original).
Here, the standard is met based on the victim's affidavit and
defendant's admissions. The fifteen-year-old victim attended a welcome home
party for defendant in September 1994. She spent the night in a tent with
defendant, who attempted to have sex with her. She declined, stating she was
not ready and did not believe in pre-marital sex. Defendant tried to
convince her to have sex, but she continued telling him no. The two did not
have sex that night.
The next week, the victim attended a party at defendant's residence in
Riverton. In defendant's presence, two other individuals teased her and
encouraged her to have sex with defendant. She repeatedly declined, making
it clear that she had strong feelings against pre- marital sex. She and the
others had been drinking alcoholic beverages.
She walked away from the others to avoid further teasing. She went
behind a garage and noticed defendant following her. Apparently, she blacked
out, and the next thing she remembered was sitting on defendant's lap on a
van seat. She was facing defendant with his penis inside her vagina. She
attempted to get up, but defendant overpowered her by tightening his grip
around her waist and pushing down on her shoulder. Defendant kissed her on
the mouth, and she turned away. He then sucked on her neck, leaving a mark.
Defendant then pushed her over to the other side of the van seat.
Defendant told a police detective that he met the victim at a party
after he had been released from Woodside, and that the victim was his
girlfriend for one to two weeks. He stated that, prior to the party at his
house, the victim had told him she was not ready to have sex. He admitted
they had sex on the day in question, corroborating the victim's story in
large part, but he stated that the victim consented.
Next, defendant challenges the use of his juvenile records to decide if
he "poses a substantial threat to any person," arguing that those records are
confidential. The purpose for confidentiality of juvenile records is
protection of the child from the prejudice generated by public scrutiny.
Confidentiality should not serve as a shield to consideration of the facts
necessary to carry out the judicial function under 7553a. In any event,
the records have been kept confidential in large measure and are referred to
merely in a general way. See In re R.D., 154 Vt. 173, 176, 574 A.2d 160,
161-62 (1990) (juvenile records available to district court for relevant
Defendant contends that the charges of sexual assault do not have an
element involving an act of violence against another person as required by 13
V.S.A. 7553a. Defendant's contention is without merit. A broad
dictionary definition of "violence" includes "abusive or unjust use of
power." Even if a narrower definition of "violence" is used, that is,
"physical force employed so as to violate, damage, or abuse," the conduct
involved in this case--a touching and invasion of the victim's body against
her will--fits within the definition. Webster's II Riverside University
Dictionary 1289 (1984).
Defendant argues that the evidence was insufficient to warrant a finding
by clear and convincing evidence that his "release poses a substantial threat
of physical violence to any person and that no condition or combination of
conditions of release will reasonably prevent the physical violence." 13
I conclude by clear and convincing evidence that defendant threatened
the victim by driving his Jeep from Route 12 at a dangerous rate of speed
into the parking lot of the Rustic Restaurant. He drove toward the victim
who was standing outside the restaurant. He fishtailed to a stop at or very
near where the victim had been before she escaped. Even if this behavior had
been merely intended to scare her, he could well have injured her and others,
or worse. Such conduct demonstrates at the very least a callous disregard of
others and a cavalier attitude about authority. The evidence contained in
defendant's juvenile record corroborates my conclusion that the 7553a
standard quoted above was met in this case. Numerous, and sometimes serious,
violations of juvenile probation and conditions of release convincingly
demonstrate that conditions of release in this case would not prove effective
to keep defendant from posing a significant threat not only to the victim but
to other young women.
Finally, defendant complains that 7553a application to him is ex post
facto. Since the focus of 7553a is protection of the public, its
application does not trigger the prohibition against ex post facto laws, in
light of the fact that the conduct regulated occurred after December, 13,
1994, the effective date of the law. See United States v. Botero, 604 F. Supp. 1028, 1031-32 (S.D. Fla. 1985) (application of change in bail
statute to defendant who allegedly committed crime before its enactment not
ex post facto application because purpose is to protect community, not
criminalize previously innocent conduct).