State v. Loveland

State v. Loveland  (95-136); 165 Vt 418; 684 A.2d 272

[Opinion Filed 9-Aug-1996]


       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. 95-136


State of Vermont                                  Supreme Court

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

Michael Loveland                                  January Term, 1996


Robert Grussing III, J.

       Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for defendant-appellant


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


       DOOLEY, J.   Defendant appeals his conviction for sexual assault on a
  minor in violation of 13 V.S.A. § 3252(a)(3).  He contends that the trial
  court: (1) committed plain error by instructing the jurors that he had
  stipulated to the facts that he was not married to the victim and that the
  victim was under the age of sixteen; and (2) impermissibly enhanced his
  sentence because he invoked his privilege against self incrimination.  We
  affirm the conviction, but reverse the court's sentence.

       Defendant was charged with committing sexual assault on his minor
  stepdaughter. Defendant testified on his own behalf at trial, denying that
  the sexual assault ever occurred.  The jury rendered a guilty verdict.

       A presentence investigation was ordered, and the report showed that
  defendant, who was out on bail prior to his trial, had a good work history
  and had been employed at his current job for ten months.  Except for a
  technical violation of the bail release conditions, he had complied

 

  with the conditions of release.  At sentencing, although he informed his
  counsel that he was willing to undertake sex offender therapy as a
  condition of his probation, defendant continued to maintain his innocence. 
  When the court asked defendant if he had anything to say, defendant
  replied, "No."

       In determining defendant's sentence, the court found that he had no
  prior history of sexually abusing children, and that this fact would be a
  mitigating factor at sentencing. Nevertheless, the court concluded that
  defendant had committed "serious misconduct that deserves punishment," and
  that a period of incarceration was necessary to protect the public. The
  court then considered but rejected a proposed sentence that would include
  probation, concluding that defendant's refusal to acknowledge any
  responsibility for the crime would make it difficult for him to
  successfully complete the sexual offender treatment program.  The court
  sentenced defendant to six to twelve years in prison, with no conditions of
  probation.  Defendant appeals both the conviction and the sentence.

       Defendant first argues that it was error for the court to direct the
  jury to consider two elements of the offense as proven: that (1) the victim
  was under the age of sixteen, and (2) defendant and the victim were not
  married.  The issue arose at the charge conference, which was held in open
  court with defendant present.  The court asked defendant's counsel whether
  he could "tell the jury that the elements that the other person was under
  the age of sixteen has been established, and the element that the other
  person, namely K.P., and the defendant were not married, have been
  established?"  Defendant's counsel replied, "Yes, that's fine, sir."
  Defendant registered no objection to this action.

       Following the charge conference, the court instructed the jury as
  follows:

     The third element is that the defendant engaged in the sexual act
     with a person who was under the age of sixteen.  Here, it's alleged
     that K.P. was under the age of sixteen, and the parties have
     stipulated that you may consider that -- you may consider as
     established that she was under the age of sixteen and you should,
     therefore, consider that element has been proven.  That is, that at
     the time alleged, K.P. was under the age of sixteen.

 

     The fourth element is one -- is that the persons who engaged in the
     sexual act, that is the defendant and K.P. were not married to each
     other and, again, the parties have stipulated that is a fact and you
     should consider, therefore, that element has been established.

  It is undisputed that the victim was six years old when the sexual assault
  occurred.  Defendant also does not dispute the fact that he was not married
  to the victim, who in fact was his stepdaughter at the time.  On appeal,
  the only claim is that the court committed error by depriving defendant of
  his right to a jury trial on all essential elements of the crime, without
  his express waiver of that right.

       Defendant has framed his claim as one of an invalid jury trial waiver
  in order to avoid the consequences of nonpreservation.  In a series of
  cases, we have allowed defendants to attack the validity of jury trial
  waivers in this Court without any preservation below.  See, e.g., State v.
  West, 6 Vt. L.W. 241, 243-45 (Sep. 1, 1995); State v. Coita, 153 Vt. 18,
  21, 568 A.2d 424, 426 (1989).  All of these cases, however, involve waiver
  of a jury trial on all issues in favor of a bench trial.  Defendant argues
  that stipulation to the presence of an element of the offense is a waiver
  of jury trial on that element, and that waiver as to an element of the
  offense must be treated the same as a waiver with respect to all elements. 
  To reach this conclusion, he relies mainly on the reasoning of this Court
  in State v. Machia, 155 Vt. 192, 583 A.2d 556 (1990), where we concluded
  that consent to an eleven-person jury did not have to meet the procedural
  requirements of a jury trial waiver.  Id. at 195-96, 583 A.2d  at 558.

       Machia is of little help to defendant's position.  We summarized the
  reasoning as follows:

       [W]e believe that the decision to stipulate to an eleven-person jury
       is a "tactical" or "strategic" one that can be made by counsel with
       the defendant's implied consent.  Here, defense counsel's on-the-
       record oral stipulation to an eleven-member jury, confirmed in
       defendant's presence, did not deprive defendant of his
       constitutional right to trial by jury.

  Id. at 199, 583 A.2d  at 560.  Nothing in the opinion suggests that because
  a decision to stipulate to an eleven-person jury was a tactical decision, a
  decision not to contest an element of an offense is necessarily a waiver of
  trial by jury.

 

       We thus decline to adopt defendant's position.  All issues contested
  by defendant were determined by the jury, and it ultimately determined
  defendant's guilt or innocence.  Moreover, acceptance of defendant's
  argument would put us on a very slippery slope where any defect in the
  jury's consideration would be considered a waiver of a jury trial, valid
  only if expressly agreed to by the defendant.

       Even if we were inclined to accept defendant's argument that some kind
  of personal waiver by defendant is required, we would accept the kind of
  implied waiver we found effective in Machia, where defense counsel
  stipulated to an eleven-person jury on the record in the defendant's
  presence.  The waiver involved is that of the right to participate in
  specific trial events, and not a waiver of the right to trial by jury.  See
  In re Cardinal, 162 Vt. 418, 419, 649 A.2d 227, 229 (1994).  We have no
  difficulty in finding a waiver on this record.  The stipulation to the
  elements of the offense was given in open court with defendant present.  To
  the extent defendant contested the stipulation, it was his obligation to
  speak at that time.

       Alternatively, defendant argues that, despite the lack of
  preservation, the trial court's failure to charge the jury that it must
  determine whether the State has established the disputed elements was plain
  error that warrants reversal of his conviction.  Defendant finds some
  support for his position in State v. Camley, 140 Vt. 483, 438 A.2d 1131
  (1981) and State v. Noyes, 147 Vt. 426, 519 A.2d 1152 (1986).  In Camley,
  defense counsel focused on whether defendant killed the victim in
  self-defense or in the heat of passion, and conceded the killing.  As a
  result, the court failed to charge the jury that it could acquit the
  defendant of killing the victim, an omission the defendant raised as plain
  error on appeal.  We found the error struck "at fundamental rights" and
  reversed for a new trial.  Camley, 140 Vt. at 490, 438 A.2d  at 1135.

       In Noyes, a DUI case, the court charged the jury that the defendant
  had admitted that he was operating a motor vehicle on a public highway at
  the time of the alleged offense.  On appeal, the defendant claimed this
  charge was error despite his failure to object to the charge below.  We
  held that the jury charge was plain error.  Noyes, 147 Vt. at 429, 519 A.2d 
  at

 

   1154.

       Since Noyes we have held that it is "bad policy to create a category
  of errors which are plain per se," State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989), and applied this policy to other areas where, in the past,
  we have not required preservation.  See also State v. Davis, 157 Vt. 506,
  509, 601 A.2d 1381, 1383 (1991) (Miranda waiver); State v. Holcomb, 156 Vt.
  251, 254, 590 A.2d 894, 895-96 (1991) (duplicity claim).  We see no reason
  why we should adopt a different approach in this case, and we therefore
  decline to find plain error per se for concessions to elements of an
  offense.  See State v. Pelican, 160 Vt. 536, 545, 632 A.2d 24, 29 (1993)
  (Morse, J., concurring).

       Instead, in order to hold that there was plain error in this case, we
  must find that "the trial court's error [is] so grave and serious as to
  strike at the very heart of defendant's constitutional rights or adversely
  affect the fair administration of justice."  State v. Bradley, 6 Vt. L.W.
  350, 351 (Nov. 3, 1995).  Such errors occur "only in rare and extraordinary
  cases." State v. Plante, 6 Vt. L.W. 366, 368 (Nov. 3, 1995).  A key factor
  in the plain error analysis is whether defendant was prejudiced.  See State
  v. Weeks, 160 Vt. 393, 400, 628 A.2d 1262, 1266 (1993).

       There is no conceivable prejudice to defendant from the asserted
  error.  The conceded elements were incontestable; there is no substantial
  chance the jury would have found the elements had not been proven. 
  Moreover, insisting that the jury should determine whether or not defendant
  was not married to the victim and whether the victim was under sixteen
  years of age would probably have hurt his case.  By conceding these
  elements, defendant appeared to be reasonable to the judge and jury.  There
  is no plain error.

       Next, defendant argues that the court enhanced his sentence for his
  failure to admit his guilt at sentencing, and that this action violated his
  privilege against self-incrimination, because any statement he made could
  be used against him in a retrial or in a separate perjury prosecution.  We
  have explored the issues relating to these claims in two recent decisions,
  State

 

  v. Noyes, 157 Vt. 114, 596 A.2d 340 (1991) and State v. Sims, 158 Vt. 173,
  608 A.2d 1149 (1991).  The claims in Noyes were virtually identical to
  those made here.  The defendant, who testified at trial, argued he was on
  "the horns of a dilemma: if he did not admit guilt, he could be punished
  for lack of remorse; if he admitted guilt, he could urge the court to give
  him a lighter sentence but his confession might be used against him at
  retrial if he prevailed on appeal."  157 Vt. at 118, 596 A.2d  at 342. 
  Relying on United States v. Grayson, 438 U.S. 41 (1978), we held that the
  trial court could consider the defendant's "testimony and demeanor at
  trial" in fashioning a sentence.  Noyes, 157 Vt. at 119, 596 A.2d  at 342. 
  The defendant's truthfulness or mendacity, while testifying at trial, is
  "`probative of his attitudes toward society and prospects for
  rehabilitation and hence relevant to sentencing.'"  Id., 596 A.2d  at 343
  (quoting Grayson, 438 U.S. at 50).

       In Sims, the defendant argued that consideration at sentencing of his
  continuing denial that he committed the offense penalized invocation of his
  privilege against self-incrimination. Relying on Noyes, we reasoned:

     A defendant's acceptance of responsibility for the offense,
     and a sincere demonstration of remorse, are proper considerations
     in sentencing.  They constitute important steps toward
     rehabilitation.  Where they are present, a reduction in sentence can
     be appropriate.  Likewise, denying this reduction, where there are
     no acknowledgements, can be appropriate and does not penalize a
     defendant's privilege against self-incrimination.  We "`are
     unprepared to equate the possibility of leniency with impermissible
     punishment.'"  United States v. Parker, 903 F.2d 91, 105 (2d.
     Cir. 1990) (quoting United States v. Henry, 883 F.2d 1010, 1011
     (11th Cir. 1989) (per curiam)).

  Sims, 158 Vt. at 188-89, 608 A.2d  at 1158.  Based on the record, we held
  that the defendant had demonstrated only that he was denied a sentence
  reduction, and therefore, there was no violation of his privilege against
  self-incrimination.  Id.

       This case fits squarely within the rationale of Sims.  In its
  sentencing decision, the trial court emphasized that, even though this was
  defendant's first offense, defendant had sexually abused a young child with
  whom he assumed a "position of trust," and that his conduct deserved

 

  punishment.  The court further emphasized the need to protect the public
  from untreated child sexual abusers who pose a high risk of recidivism.  It
  noted, however, that successful rehabilitation of convicted sexual
  offenders requires that they admit to having committed the abuse, and be
  willing to take responsibility for their acts.  Otherwise, a sexual
  offender unwilling to acknowledge any responsibility for his crime cannot
  successfully be treated, and will still pose a threat to society.  The
  court concluded:

          This is not a case where we would impose a sentence that
     would allow the defendant to complete a so-called pretreatment
     program in an incarcerative sentence and then an outpatient
     intensive, longer sexual abuse treatment program as in a
     probationary status, because I don't think there is any likelihood
     that program would be completed.

          So, based on the need to protect the public, [and based on
     the] knowledge that if an inpatient sexual offender program is
     successfully completed, that the risk to society would be
     diminished; and based further on [the knowledge] that if such a
     program were not completed, then a longer term of incarceration
     would be needed, again to meet the needs of protection of the
     public, we are going to impose a sentence on the sexual assault
     charge that the defendant be committed to the custody of the
     Commissioner of Corrections for a period of not less than 6, nor
     more than 12 years.

  As in Sims, defendant's continuing denial that he committed the offense was
  considered as bearing on his prospects for rehabilitation.  It was also
  considered as bearing on the protection of the public because it would
  prevent effective treatment.  There is no indication that the court did
  anything other than deny defendant a reduction of sentence that might
  accompany a showing of remorse and dedication to treatment and
  rehabilitation.  There is no evidence that the court punished defendant for
  relying on his privilege against self-incrimination.

       Defendant urges us to abandon the Sims analysis because it is
  unworkable in a discretionary sentencing system where it is impossible to
  distinguish between a sentence enhancement and the denial of a sentence
  reduction.  We acknowledge the difficulty in drawing lines, but find that
  difficulty similar to what we encounter in CHINS cases, where we have also
  balanced the competing interests of safety of the juvenile and the parents'
  privilege against self-

 

  incrimination.  In In re M.C.P., 153 Vt. 275, 298-301, 571 A.2d 627, 639-41
  (1989), at a CHINS merits determination, the court found that the parents
  had sexually and physically abused their child.  The parents contended that
  it was improper for the state to refuse to reunify the child with the
  parents on the basis of their failure to admit to the abuse.  We
  acknowledged the dilemma raised by the competing pressures to protect the
  child from further abusive actions and to honor the parents' privilege
  against self-incrimination.  We balanced the considerations as follows:

     The trial court cannot specifically require the parents to admit
     criminal misconduct in order to reunite the family.  On the other
     hand, the parents must demonstrate to the court that it is in the
     juvenile's best interest to return custody to the parents in the face
     of the serious misconduct the court found they engaged in.  While
     the court may not specify that the only route to reunification is an
     abandonment of the self-incrimination right, the parents must
     expect that the court and SRS will act based on the findings of
     extreme parental abuse.  If the parents can find a way to show that
     they have become good parents, without admitting to any
     misconduct, and that a restoration of custody of the juvenile to
     them is in the best interest of the child and is safe, the court may
     not foreclose the option.

  Id. at 300-01, 571 A.2d  at 641.

       The trial court here was faced with a dilemma like that in M.C.P. 
  Defendant is an untreated sexual offender, who, without effective
  treatment, presents a substantial risk of reoffending.  While the court
  cannot punish defendant for insisting on his privilege against self-
  incrimination, it also cannot ignore the apparent consequences of
  defendant's condition.  If defendant can find a method of convincing the
  court that community safety can be assured with a probationary sentence,
  the court must be open to that possibility.  Where he presents no realistic
  alternative, beyond an illusory commitment to participate in treatment
  programs as directed, the court is free to consider the prospect of
  rehabilitation, and the safety of the community, in fashioning the
  sentence.

       Finally, defendant argues that even if the sentence is not unlawful,
  we should adopt an alternative method of solving the dilemma faced by
  defendant by granting him use immunity.

 

  See Comment, Judicial Use Immunity and the Privilege Against
  Self-Incrimination in Court Mandated Therapy Programs, 17 Nova L. Rev.
  1441, 1485-87 (1993) (judicial use immunity is "attractive" solution,
  "amenable to the realm of court-ordered therapy," to protect interests
  involved).

       The model for defendant's solution is the exclusionary rule we crafted
  in State v. Begins, 147 Vt. 295, 514 A.2d 719 (1986), where a probationer
  was charged with misconduct that forms the ground for both revocation of
  probation and an independent criminal charge.  We found that if the
  revocation hearing proceeds before the criminal trial, the defendant faces
  a hard testimonial choice of refusing to testify in the hearing or
  testifying, with the consequence that the testimony can be used in the
  criminal trial.  In order to "insure that the administration of justice in
  Vermont operates as fairly as possible," we held that "the probationer's
  testimony will be subject to an exclusionary rule which will enable her to
  testify at the revocation hearing without fear of subsequent
  self-incrimination at the criminal trial."  Id. at 298-99, 514 A.2d  at 722. 
  The rule does not prevent the use of the testimony, or its fruits, to
  impeach or rebut inconsistent testimony or as a basis for a perjury
  prosecution.  Id. at 300, 514 A.2d  at 723.

       In State v. Drake, 150 Vt. 235, 552 A.2d 780 (1988), we applied the
  Begins rationale to the admission, at a sentencing hearing, of evidence of
  other crimes for which the defendant had not been charged, holding that
  such evidence could be considered only if the defendant were offered
  immunity against the use of his statements in relation to those crimes in
  other proceedings.  Id. at 237, 552 A.2d  at 781.

       We have recently adopted a Begins exclusionary remedy in related
  circumstances in State v. Cate, No. 94-419 (Vt. Aug. 9, 1996).  In Cate,
  the defendant's sentence placed him on probation, but specifically required
  as a condition of probation that defendant admit his culpability for the
  offense.  Because the defendant testified at trial, he argued that the
  condition would require him to confess to perjury, in violation of his
  privilege against self-incrimination. We agreed, holding that a defendant
  could not be forced to incriminate himself by admitting

 

  criminal responsibility as a condition of probation without first receiving
  immunity from criminal prosecution as a result from the admission.  Id.,
  slip op. at 13.  To make the holding effective, we further held that if the
  prosecutor would not eliminate the risk of future prosecution derived from
  statements required for successful completion of rehabilitative probation,
  judicial use immunity would make such statements inadmissible against the
  probationer at a subsequent criminal trial.  Id., slip op. at 14. 
  Moreover, the sentencing court must advise the defendant of the rule.  Id.

       Cate dealt with a very narrow situation, where the court explicitly
  conditions probation on an acknowledgement of criminal responsibility.  We
  emphasized that we did not want to discourage such probation conditions
  because they clearly warn the defendant of the inevitable obligation
  imposed by the probation conditions, and avoid a high likelihood of
  misunderstanding that results when a defendant accepts probation but
  refuses to acknowledge responsibility for the offense.  See id. at 14-15.

       Nevertheless, we are concerned that if we do not apply the Cate rule
  at sentencing, we will not fully eliminate the dilemma facing defendants. 
  Otherwise, defendants may decline to admit responsibility in order to
  preserve their privilege against self-incrimination.  Nor will we provide
  for the fair administration of justice if, in attempts to avoid the grant
  of judicial use immunity, sentencing courts simply avoid granting
  probation, or craft vague sentences and probation conditions which fail to
  clearly explain the obligation of defendants to admit criminal
  responsibility in a sexual offender treatment program.  As a result, courts
  will not consider the full range of sentencing options, thereby distorting
  the sentencing process.  Moreover, we want to fashion a rule that
  encourages convicted defendants to accept treatment and rehabilitation,
  rather than emerging untreated from incarceration, however far in the
  future.

       Accordingly, we adopt the Begins exclusionary rule for statements made
  by sex

 

  offenders,(FN1) convicted after a trial,  during their sentencing.  Such
  "[s]tatements required for successful completion of probation, and their
  fruits, will not be admissible against him or her at any subsequent
  criminal proceeding,"  Cate, slip op. at 14, nor at a retrial of the
  offense on which defendant is being sentenced, except under the conditions
  stated in Begins.

       Because defendant made no statement at his sentencing hearing and may
  have "been deterred from doing so by the desire to preserve [his] privilege
  against self-incrimination," Begins, 147 Vt. at 300, 514 A.2d  at 723, we
  reverse the sentence and remand for imposition of a new sentence consistent
  with this opinion.

       Defendant's conviction is affirmed.  The sentence is reversed and
  remanded for resentencing in light of this opinion.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice





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                                  Footnotes


FN1.  We have limited this ruling to sex offenders because we are
  convinced that the "hard testimonial choice" is present in such
  circumstances.  We leave to another day whether such a choice is present in
  other circumstances.