State v. Plant

State v. Plant  (96-455); 165 Vt 617; 686 A.2d 941

[Opinion Filed 2-Oct-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 96-455

                            SEPTEMBER TERM, 1996


State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 3, Washington Circuit
Lester Plant                         }
                                     }     DOCKET NO. 836-9-96Wncr


       In the above-entitled cause, the Clerk will enter:

       Defendant Lester Plant appeals a judgment of the District Court
  denying his release on bail under 13 V.S.A. § 7553a.  He was afforded a new
  evidentiary hearing under 13 V.S.A. §7556(d) and V.R.A.P. 9(b).  I conclude
  by clear and convincing evidence that bail was properly withheld under 
  § 7553a, as well as under 13 V.S.A. § 7575.

       The record evidence reveals that defendant engaged in an rapidly
  escalating campaign of harassment, intimidation and physical assault
  against Cynthia Hull-Plant, his estranged wife, in direct contravention of
  court orders.  In mid-August of 1996, Ms. Hull-Plant filed a complaint
  against defendant for relief from abuse.  15 V.S.A. § 1103.  The complaint
  arose from a series of incidents in which defendant accosted his wife in
  different locations, physically grabbed and held her as she attempted to
  leave, and chased her when she managed to escape.  A temporary relief from
  abuse order prohibiting defendant from contacting his wife was issued by
  the family court on August 15, 1996.

       Less than one week later, defendant was arrested and charged with
  assaulting his wife and violating the terms of the court order.  Defendant
  was released on bail on condition that he not be charged with and have
  probable cause found for an offense like the one he was charged with, that
  he not contact or harass Ms. Hull-Plant, and that he abide by all family
  court orders in effect.  A hearing was held on August 22, 1996 and a final
  relief from abuse order was issued, prohibiting defendant from the threat
  or use of physical force against Ms. Hull-Plant, from any contact or
  communication with her, and from entering anywhere within 1,000 feet of her
  residence or place of business.

       Three weeks later, defendant was arrested again and charged with
  unlawful restraint, 13 V.S.A. § 2407, and first degree aggravated domestic
  assault, 13 V.S.A. § 1043, as well as multiple violations of the relief
  from abuse order.  The State moved to hold defendant without bail under 13
  V.S.A. § 7553a and 13 V.S.A. § 7575.  Following a hearing, the District
  Court found probable cause to support the charges and, in a written
  opinion, found by clear and convincing evidence that the evidence of
  defendant's guilt was great, that he posed a substantial threat of physical
  violence to Ms. Hull-Plant, and that no conditions of release would
  reasonably prevent the threatened violence.  Accordingly, the court ordered
  defendant to be held without bail pursuant to 13 V.S.A. § 7553a.  The court
  did not rule under § 7575.  This appeal and new evidentiary hearing
  followed.

       As revealed in the hearing, the events which gave rise to the
  underlying charges occurred

 

  as follows:  On September 7, 1996, the Montpelier police responded to an
  early morning  call that defendant was in Ms. Hull-Plant's residence on
  Barre Street.  When the investigating officer arrived, he found that
  defendant was indeed in the apartment and learned from Ms. Hull-Plant the
  events of the prior evening.  She recounted that defendant had called to
  inform her that their son had been in an accident and was in Central
  Vermont Hospital.  When she arrived at the hospital, defendant met her
  there and said that their son had been transferred to a hospital in
  Burlington.  She agreed to drive to Burlington with defendant.  On the
  drive, however, defendant revealed that their son was fine but that she was
  not.  He then retrieved a handgun from behind the seat, told her it was
  loaded, and threatened to kill both her and himself.  She was able
  eventually to grab the gun and throw it out the car window.  Defendant then
  produced another gun from behind the seat, a .357 revolver, opened the
  cylinder to show her it was loaded, and threatened her with it.  During the
  drive, defendant recorded a brief message on a cassette recorder in which
  he spoke of a murder/suicide and gave a farewell message to his children. 
  Eventually Ms. Hull-Plant was able to calm defendant by promising to return
  home with him.  They then returned to Ms. Hull-Plant's residence, where she
  was able to contact the police.  The police later seized the cassette and
  the .357 revolver from defendant's car, as well as an apparent suicide note
  which defendant had earlier written to his children.

       A person charged with a felony an element of which involves an act of
  violence against another may be held without bail where the evidence of
  guilt is great and the court finds, upon clear and convincing evidence,
  that the person's release poses a substantial threat of physical violence
  and no set of conditions will reasonably prevent the violence.  13 V.S.A. §
  7553a.  The hearing testimony recounted above, corroborated by the suicide
  note, tape, and weapon seized from defendant's truck, satisfies each of the
  elements of § 7553a.  Indeed, the cold calculation evident in the execution
  of defendant's plan - from the cruel ruse designed to lure Ms. Hull-Plant
  to the hospital and into his car, to the earlier penned suicide note, to
  the two handguns hidden behind the seat (at least one of which was
  indisputably loaded) and the handheld cassette to dictate the
  murder/suicide message -- demonstrates beyond any reasonable doubt that no
  court ordered condition of release would reasonably prevent defendant from
  engaging in similar violence.  The alternative urged by defendant, release
  on condition that he remain with his in-laws, does not provide a
  reasonable deterrent.

       Accordingly, I conclude that defendant was properly denied release on
  bail under 13 V.S.A. § 7553a.

       The State also moved to hold defendant without bail under 13 V.S.A. §
  7575, which provides that bail may be revoked entirely if the court finds
  that the accused has (1) intimidated or harassed a victim or potential
  witness; (2) repeatedly violated conditions of release; (3) violated
  conditions of release which constitute a threat to the integrity of the
  judicial system; (4) failed to appear at a time and place ordered by a
  judicial officer; or (5) in violation of a condition of release, been
  charged with a felony against a person for which, after hearing, probable
  cause is found.  The evidence here amply supports a finding that defendant
  harassed a victim, Ms. Hull-Plant, in violation of conditions of release. 
  Defendant assaulted his wife in mid-August in direct violation of a
  temporary relief from abuse order, an order which was predicated upon
  several earlier incidents of physical assault and harassment.  Less than
  three weeks later, in direct contravention of specific conditions of
  release, defendant not only assaulted his wife but restrained her against
  her will and threatened her life with a loaded handgun.  The District Court
  found probable cause to support felony charges of aggravated domestic
  assault, 13 V.S.A. § 1043, and first degree unlawful restraint.  13 V.S.A.
  § 2407.  These actions constitute harassment under 13 V.S.A. §7575(1)
  sufficient to justify revocation of bail.  Ms. Hull-Plant's demeanor in
  giving her testimony amply corroborates this conclusion.  Cf. State v.
  Sauve, 159 Vt. 566, 574, 621 A.2d 1296, 1301 (1995) (although §7575(1)
  providing for revocation of bail if defendant intimidates or harasses a
  victim is consistent with traditional constitutional protections, trial
  court failed to find that the complaining witness was harassed or

 

  intimidated).

       Affirmed


     FOR THE COURT:

     _______________________________________
     James L. Morse, Associate Justice