State v. Turnbaugh

State v. Turnbaugh (2002-397); 174 Vt. 532; 811 A.2d 662

[Filed 30-Sep-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2002-397

                            SEPTEMBER TERM, 2002


  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 3, Washington Circuit
  Isaac Turnbaugh	               }
                                       }	DOCKET NO. 984-08-02WnCr


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


       Defendant is charged with murder in the first degree in violation of
  13 V.S.A. § 2301.   The district court judge ordered defendant held without
  bail pursuant to 13 V.S.A. § 7553.  Upon the filing of a timely motion for
  review of bail, the court held a bail review hearing to determine if the
  State could produce sufficient admissible evidence to support the order to
  hold without bail.  The State submitted several affidavits from witnesses
  including three from defendant's acquaintances who claim to have heard
  defendant make incriminating statements.  Defendant also submitted written
  affidavits from witnesses in addition to live testimony from defendant's
  mother and his treating physician.  The court's written decision, issued
  September 2, 2002, continued defendant's detention without bail.  Defendant
  appealed to this Court pursuant to the Vermont Constitution, Chapter II, §
  40 and 13 V.S.A. § 7556(e). 

       The Vermont Constitution specifically provides that "[a] person
  accused of an offense punishable by death or life imprisonment may be held
  without bail when the evidence of guilt is great."  Vt. Const. ch. II, §
  40(1).  This provision is implemented through 13 V.S.A. § 7553.  That
  statutory section also provides that, if the evidence of guilt is not
  great, the person shall be bailable in accordance with § 7554 of Title 13,
  which governs release prior to trial.
        
       The trial court decided the bail review in this case by relying on the
  standard set forth in State v. Duff, 151 Vt. 433, 563 A.2d 258 (1989).  In
  Duff, we adopted the standard set forth in V.R.Cr.P. 12(d) as the correct
  standard of review under Chapter II, § 40 of the Vermont Constitution and
  under 13 V.S.A. § 7553.  See generally id.  Under that standard--used to
  judge a motion to dismiss for lack of a prima facie case--the prosecution
  must establish by affidavits, depositions, sworn oral testimony or other
  admissible evidence "that it has substantial, admissible evidence as to the
  elements of the offense. . .sufficient to prevent the grant of a motion for
  judgment of acquittal at the trial."  V.R.Cr.P. 12(d)(2).  A motion for
  acquittal must be granted if "the evidence is insufficient to sustain a
  conviction."  V.R.Cr.P. 29(a).  Thus, the standard controlling a motion to
  dismiss for lack of a prima 

 

  facie case is "whether the evidence, taken in the light most favorable to
  the State and excluding modifying evidence, can fairly and reasonably show
  defendant guilty beyond a reasonable doubt."  Duff, 151 Vt. at 439, 563 A.2d  at 263 (internal quotations omitted).  In applying the Duff standard,
  the trial court excluded affidavits submitted by defendant, holding that
  they represented conflicting or modifying evidence and, as such, the law
  required they not be considered.   

       Defendant contends that the court erred in applying the Duff standard
  because its application improperly excludes valid evidence that is
  otherwise authorized under V.R.Cr.P. 12 and the more recent case of State
  v. Fanger, 164 Vt. 48, 665 A.2d 36 (1995). (FN1)  Defendant asserts that
  Fanger requires that the court review all relevant evidence, including that
  submitted by defendant, when determining whether to continue to hold
  defendant without bail.  Had the information submitted by him been
  considered, defendant submits that the trial court would not have found the
  State's evidence to be great, a prerequisite finding that the court must
  make before holding defendant without bail under § 7553, and would likely
  have set conditions of release. 

       In Fanger, the defendant was charged with unlawful trespass into an
  apartment he managed.  He moved for dismissal of the information on the
  ground that the prosecution would be unable to make out a prima facie case
  against him pursuant to V.R.Cr.P. 12(d).  At issue in Fanger was whether
  the State could show that the defendant knew he was not privileged to enter
  the apartment, an essential element of the crime charged.  In support of
  his motion to dismiss, the defendant offered his own affidavit describing
  his version of what occurred when he entered the apartment.  Based on the
  explanation offered in the defendant's affidavit that he entered to turn on
  the heat in other apartments and that he believed the tenancy had ended,
  the trial court ruled that the State failed to show that defendant knew he
  was not privileged to enter the apartment and dismissed the information. 
  The State appealed.  
          
       On appeal, this Court held that, while "[n]ormally, a prima-facie-case
  ruling is made solely on evidence offered by the State," the trial court
  should consider evidence provided by the defendant when assessing whether
  the State had admissible evidence on each element of the charged offense. 
  Fanger, 164 Vt. at 52, 665 A.2d 37-38.  The Court noted that V.R.Cr.P
  12(d)(2) permits the defendant to introduce affidavits or further evidence
  on his or her behalf.  Id. at 52, 655 A.2d  at 38.  Therefore, we concluded
  that, "[i]n view of this authorization, we believe the trial court must
  make its ruling based on all the evidence before it, whether produced by
  the State or the defendant."  Id. (emphasis added).  We also concluded that
  a comparison of the defendant's explanation of his intent, considered in
  light of evidence from other witnesses that clearly disputed the
  defendant's claimed purpose for entry, gave rise to an inference that the
  defendant knew he did not have a license or 

 

  privilege to enter.  Id. at 53, 665 A.2d  at 38.  Therefore, we held, the
  case should not have been dismissed.

       In the present case, defendant introduced at the bail review hearing
  below affidavits disputing evidence offered by the State of alleged
  incriminating statements by defendant, including ones suggesting that
  defendant's statements were made at a time when defendant and those
  witnesses who heard his statements were under the influence of
  hallucinogenic mushrooms.  As noted above, in denying defendant bail, the
  trial court cited its inability to consider this modifying evidence because
  of the standard enunciated in Duff. 

       Reconciling the holdings of Duff and Fanger is not difficult.  First,
  it is important to recognize that the issue presented in Fanger arose from
  a motion to dismiss, alleging the inability of the State to establish a
  prima facie case, and not a bail review assessing whether evidence of guilt
  is great.  Fanger, 164 Vt. at 51, 655 A.2d  at 37.  Thus, in Fanger, we held
  that evidence offered by the defendant may be used to supply evidence on an
  element of the offense charged.  Id. at 52, 655 A.2d  at 38.  Fanger did not
  suggest that the trial court utilize the modifying evidence to make a
  credibility determination between whose version of the events was the more
  believable. 

       Fanger should not be interpreted to require a court, presented with a
  12(d) motion,  to do more than determine if the State has admissible
  evidence on each element of the crime charged.  Likewise, in reviewing a
  denial of bail pursuant to 13 V.S.A. § 7553, application of the standard
  adopted in Duff requires a reviewing court to decide if the State has
  substantial, admissible evidence legally sufficient to sustain a verdict of
  guilty.  Duff, 151 Vt. at 439, 563 A.2d  at 263.  As acknowledged by
  defendant's counsel at oral argument, under defendant's interpretation of
  Fanger, the trial court would be called upon to make credibility
  determinations based on conflicting evidence submitted at the bail review
  hearing.  This approach would treat a bail hearing as if it were an
  adjudication of the merits of the case, which it is not.   

       Preliminarily, we note that, because the modifying or conflicting
  evidence submitted in this case was offered through affidavits, a
  credibility determination between affiants would be difficult, if not
  impossible.  More importantly, it is not the role of the court in a bail
  review hearing to judge the State's case.  In a bail hearing, guilt or
  innocence of the accused is not the issue and there should be no evaluation
  of the evidence with that result in mind.  Direct conflicts between
  inculpatory or exculpatory facts cannot be resolved at this stage.  Such
  matters must await jury determination at trial.  Rather, the court need
  only determine if the State's evidence is sufficient to sustain a verdict
  of guilty, not whether the jury will indeed be persuaded to render same.  

       In Duff, we adopted the standard applied by a majority of the states
  in pre-trial bail hearings:   
   
    the narrow and focal issue must be kept in mind by the trial court
    and the hearing tailored to that issue, i.e., whether the facts
    adduced by the State, notwithstanding contradiction of them by
    defense proof, warrant the

 

    conclusion that if believed by a jury they furnish a reasonable
    basis for a [guilty] verdict. . . .

  151 Vt. at 438-39 n.8, 563 A.2d   at 236 (quoting State v. Obstein, 247 A.2d 5, 9 (N.J. Sup. Ct. 1968), overruled on other grounds by State v. Williams,
  459 A.2d 641 (1983)).

       Having determined that the court utilized the proper standard in a
  proper manner, we now turn to the question of whether the decision is
  supported by the trial court proceedings.  See State v. Passino, 154 Vt.
  377, 378, 577 A.2d 281 (1990) (question before the Court in bail appeals is
  whether decision of trial court is supported by trial court proceedings). 
  In this opinion, we will refrain from characterizing the evidence against
  the accused, in order to avoid influencing the trial in any manner by
  rendition of the obviously incomplete but necessarily incriminating
  evidence.  We merely decide whether the State has presented substantial,
  admissible evidence of guilt, absent conflicting or modifying evidence.  We
  have carefully reviewed the trial court's decision and the district court
  file and conclude that the evidence offered by the State supports the
  court's ruling.    

       Defendant also argues that the trial court failed to properly consider
  alternative measures to holding without bail that would reasonably ensure
  the appearance by defendant.  Even though defendant is not entitled to bail
  in this case pursuant to 13 V.S.A. § 7553, the trial court does have
  discretion to allow bail.  Duff, 151 Vt. at 441, 563 A.2d  at 264; see also
  In re Dexter, 93 Vt. 304, 315, 107 A. 134, 138  (1919) (trial court had the
  "sound, judicial discretion" to release a defendant on bail even though the
  defendant fell within the constitutional exception to the right to bail). 
  The trial court considered the factors set forth in 13 V.S.A. § 7554,
  including defendant's family ties, employment, financial resources,
  character and mental condition, record of convictions and record of
  appearances in court.   Although it considered defendant's request to be
  committed to the custody of his parents with a 24-hour curfew, the court
  declined to release defendant on conditions, based on evidence of
  defendant's inability to appropriately deal with issues surrounding his
  mental health and illegal drug use.  We find no abuse of the court's
  discretion. 

       Affirmed.


                                  BY THE COURT:


                                  _______________________________________
                                  Denise R. Johnson, Associate Justice

                                  _______________________________________
                                  Marilyn S. Skoglund, Associate Justice

                                  _______________________________________
                                  Ernest W. Gibson III, Associate Justice (Ret.)



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                                  Footnotes


FN1.  In deciding whether the State had substantial evidence of guilt, the
  trial court below specifically did not consider evidence submitted by the
  State that was subject to challenges by  defendant on admissibility
  grounds, as was the situation presented in State v. Passino, 154 Vt. 377,
  577 A.2d 281 (1990).  Thus, defendant does not challenge the bail review
  decision on the ground that the court improperly considered evidence
  susceptible to suppression.