State v. Dunbar

State v. Dunbar (99-520); 172 Vt. 557; 772 A.2d 533

[Filed 10-Apr-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 1999-520

                              MARCH TERM, 2001


State of Vermont 	             }	APPEALED FROM:
                                     }
                                     }
     v.	                             }	District Court of Vermont,
                                     }	Unit No. 3, Caledonia Circuit
                                     }
Jeffrey Dunbar	                     }
                                     }	DOCKET NO. 113-2-99 Cacr

                                        Trial Judge: Alan W. Cook 

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


       Defendant Jeffrey Dunbar appeals from a felony conviction for a second
  offense of violating  an abuse prevention order under 13 V.S.A. § 1030 in
  the Caledonia District Court.  On appeal,  defendant argues that (1) the
  felony conviction was in error because the jury should not have been 
  reconvened after being dismissed, and (2) that the trial court's
  instructions to the jury were unclear  and confusing.  We agree as to (1)
  and conclude that issue (2) has not been preserved.  We strike the  felony
  conviction leaving a misdemeanor conviction.  

       On February 16, 1999, defendant was charged with violation of an abuse
  prevention order by  indirect contact with his wife, Donna Dunbar, on
  February 15.  In the information, the State charged  that defendant had
  been convicted of a similar offense in 1997 and sought a felony conviction
  under  the enhanced penalty provision of 13 V.S.A. § 1030(b).  Jury
  selection was conducted on May 18,  1999, and the trial was held on May 21,
  1999.  

       No evidence of defendant's prior conviction was presented during the
  trial.  The jury returned  a guilty verdict.  The State did not seek a
  post-verdict opportunity to show the prior conviction, and  defendant did
  not raise the issue.  The court discharged the jury and ordered a
  presentence  investigation.  The sentencing was set for July 14, 1999.

       Defendant subsequently filed a motion for judgment of acquittal,
  raising for the first time that  the State had failed to prove the prior
  conviction and arguing that defendant could be convicted only  of a
  misdemeanor, first offense.  The court denied the motion and ordered the
  jury recalled to  determine whether defendant had been convicted of a prior
  violation of an abuse prevention order.   Defendant opposed the recall,
  arguing that once it was discharged, the jury could not be recalled.  
  After a brief trial on October 9, 1999, the jury determined that defendant
  had been convicted of  violating an abuse prevention order in 1997.

       Although we have not interpreted § 1030(b) in this context, the State
  does not dispute that the  jury had to find the predicate conviction beyond
  a reasonable doubt in order for the court to impose  the greater sentence
  authorized by that statute.  As early as State v. Spaulding, 61 Vt. 505, 17 A. 844  (1889), this Court held that the jury must determine the existence
  of the predicate 

 

  conviction as part of the charged offense.  See id. at 515, 17 A.  at 848. 
  The procedure is set out in  State v. Cameron, 126 Vt. 244, 227 A.2d 276
  (1967), as follows:


         Notice of such intention [to seek an enhanced sentence] by
    the  prosecution must be given before arraignment . . . .  This
    must be  done by charging the principal offense and the prior
    conviction(s) in  two parts in the complaint.

         . . . .

         The question of prior conviction(s) would be settled if the 
    respondent admits such fact, or pleads nolo contendere thereto, on
    his  arraignment.  On the other hand, the respondent might deny
    the  sufficiency of the record alleged as to his prior
    conviction(s) or his  identity with the person so convicted, and
    request a jury trial.  This,  he is entitled to do.  Or, if a jury
    trial is waived, the question would be  resolved by the court
    after hearing and findings of fact.  

         When the prior status of the accused is denied and the
    accused  has been convicted of the principal offense, trial by
    jury then proceeds  on that issue if such trial has been
    requested.  And it becomes the  duty of the prosecuting officer to
    prove beyond a reasonable doubt the  fact or facts denied.  But
    the guilt or innocence of the respondent  respecting any former
    conviction is not an issue.

         Whether the question is for resolution by the court or jury,
    the  matter of prior conviction(s) is to be withheld from the jury
    trying the  principal charge.  The fact of a prior conviction or
    convictions does  not become material until after the conviction
    of the accused on the  substantive offense on trial is
    established, and then only for the  purpose of enabling the trial
    judge to impose the proper sentence.

  Id. at 249, 227 A.2d  at 279-80 (citations omitted).  

       The State argues that under the Cameron procedures, defendant has the
  obligation to request  a jury determination of whether there was a
  predicate conviction.  We disagree.  Defendant pled not  guilty to the
  State's information, and was not asked to plead specially on the
  enhancement question.   His silence on the enhancement issue must be taken
  as a denial, not a waiver.  See V.R.Cr.P.  11(a)(1); Cameron, 126 Vt. at
  249, 227 A.2d  at 279 (question is settled if defendant "admits such  fact"
  or pleads nolo contendere). (FN1)

 

       Since the State had to prove the predicate conviction, and failed to
  do so before the jury was  discharged, the felony enhancement conviction is
  valid only if the court could recall the jury after it  was discharged. 
  The "general rule is that a jury may not be reassembled after discharge to
  amend a  verdict."  State v. Roberge, 155 Vt. 121, 124, 582 A.2d 142, 144
  (1990).  In Roberge, we allowed a  discharged jury to be recalled because
  it had delivered a verdict on only one of three counts.  The  recall
  occurred while the jurors were still in the courthouse after they had
  rendered their initial  verdict.  Following the recall, they were polled on
  the additional counts.  We distinguished those  circumstances from
  Hopkinson's Administratrix v. Stocker, 116 Vt. 98, 70 A.2d 587 (1950), a
  civil  case in which the jury was recalled after six days to correct a
  mathematical error in its verdict.  In  Stocker, we reversed the corrected
  verdict because the six-day interval created too great an  opportunity for
  the jury to be influenced by conversations with others, including the
  parties.  Id. at  103, 70 A.2d  at 590.  After reviewing Stocker, we held in
  Roberge that the recall was valid because  "(1) there [was] no allegation
  of impropriety or tampering, and practically no opportunity for  discussion
  with or influence by outsiders; and (2) the jury did not retire to
  reconsider the issues, but  merely answered the questions that ought to
  have been put to it moments before."  155 Vt. at 125,  582 A.2d  at 145.  

       The time period here-over four and a half months-is far greater than
  that for which we could  say that there was little opportunity for outside
  influences.  Indeed, in response to questions from  defense counsel, a
  number of jurors indicated they had discussed the case since the verdict. 
  We  conclude that this case is governed by the general rule that a jury
  cannot be reassembled after it is  discharged.2(FN2)
  
       Because the recall of the jury was in error, the State failed to prove
  the predicate offense, and  the jury failed to find it.  Thus, defendant
  could be convicted only of the first offense misdemeanor  specified in §
  1030(a).  Although the sentence actually imposed, a five hundred dollar
  fine, is within  the maximum authorized for the misdemeanor offense, we
  cannot determine what sentence would  have been imposed if the court had
  sentenced only for the misdemeanor.  Accordingly, we strike both  the
  judgment and sentence and remand for entry of a new judgment and sentence.  

       Defendant also argues that the jury charge was so confusing that he is
  entitled to a new trial.   In order to challenge jury instructions on
  appeal, defendant must "object[] thereto before the jury  retires to
  consider its verdict."  V.R.Cr.P. 30.  Defendant failed to make an
  objection to the charge  after it was delivered, and, therefore, has waived
  any challenge to the instructions.  See State v.  Pelican, 160 Vt. 536,
  538, 632 A.2d 24, 25-26 (1993).  We decline to consider his challenge.

       The judgment of conviction, and sentence imposed on the judgment, are
  stricken, and the  matter is remanded for entry of a new judgment, and
  imposition of a new sentence, consistent with  this order. 

 



                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN3.  The State relies particularly on the phrase in Cameron: "trial by jury
  then proceeds on that  issue if such trial has been requested."  126 Vt at
  249, 227 A.2d  at 279.  It argues that the phrase  means that defendant must
  specially request trial on the enhancement issue, or the issue is waived.  
  We read the language as addressing whether trial will be held by jury or by
  court, and not imposing  on defendant a special pleading requirement.

FN2.  In view of our rationale, we do not reach whether reassembling the
  jury violated  defendant's double jeopardy rights.