State v. Sweeney

State v. Sweeney (2003-425); 178 Vt. 1; 869 A.2d 137

2005 VT 11

[Filed 21-Jan-2005]


       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.


                                 2005 VT 11

                                No. 2003-425


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 2, Bennington Circuit

  Cathy Ann Sweeney	                         October Term, 2004


  David A. Howard, J.


  William H. Sorrell, Attorney General, and John R. Treadwell and David E.
    Tartter, Assistant Attorneys General, Montpelier, for Plaintiff-Appellee.

  Matthew Valerio, Defender General, and Henry Hinton, Appellate Attorney,
    Montpelier, and  Anthony Parks, Law Clerk (On the Brief), Warren, for
    Defendant-Appellant.


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned



       ¶  1.  SKOGLUND, J.   Defendant appeals from a conviction of
  domestic assault in violation of 13 V.S.A. § 1042.  She contends the court
  erroneously: (1) denied her request to withdraw a waiver of jury trial; and
  (2) admitted the prior consistent statement of a witness.  We affirm.   
   
       ¶  2.  On August 22, 2002, defendant picked up her two children,
  N.S., her fourteen-year-old daughter, and A.S., her eleven-year-old son,
  after a weekend visit with their father, defendant's former husband.  N.S.
  sat in the front passenger seat, while her brother sat in the rear.  N.S.
  testified that defendant became angry when she learned that N.S. had spent
  time at her father's with A.G., N.S.'s best friend.  According to N.S.,
  defendant screamed and cursed at her and struck her repeatedly with her
  fist and open hand during the ride.  When they arrived home, defendant had
  N.S. telephone A.G., shouted at them both, and continued to strike N.S.  

       ¶  3.  After the telephone call, defendant took N.S., A.S., and her
  two step-children by a subsequent marriage to her place of work.  N.S.
  later hitchhiked from there to another location and called her father to
  report the assault.  At her father's direction, she then called the police,
  and was met by her father and a police officer who transported her to the
  police station where she made a report of the assault.  A.G., who also met
  N.S. at the station, testified over objection that N.S. told her that
  defendant had struck her.  The officer who met N.S. and took her statement
  testified that N.S. was initially upset and crying.  Although the officer
  did not did not detect any bruises on her arm, N.S.'s father testified that
  N.S. had a lump on her head from the assault.  Defendant acknowledged in
  her testimony that she had engaged in an argument with N.S., but denied the
  assault allegation.

       ¶  4.  At the conclusion of the two-day bench trial, the court entered
  its oral findings and decision in favor of the State.  Defendant was
  sentenced to three to twelve months, all suspended, and placed on
  probation.  This appeal followed.  
   
       ¶  5.  Defendant first contends the court erred in denying her
  request to withdraw her waiver of jury trial.  After defendant was charged
  with domestic assault in August 2002, she appeared before the court at a
  calendar call on September 24, 2002, and her attorney advised the court
  that defendant had requested a bench trial.  The court then advised
  defendant of her right to a jury trial and elicited a waiver.  Defendant
  does not challenge the adequacy of the colloquy with the court or the
  voluntariness of the waiver. 

       ¶  6.  The parties were informed on January 3, 2003 that trial had
  been scheduled for February 6.  On the morning of trial, defense counsel
  informed the court that defendant wished to withdraw her waiver of jury
  trial.  The State objected to the late request, noting that it had invested
  substantial time in preparing its witnesses and having them ready for
  trial, and that the court had blocked out the morning in anticipation of a
  bench trial.  The court denied the request to withdraw the waiver, finding
  that it would result in a waste of judicial resources and prejudice the
  State, which had subpoenaed witnesses and was prepared to proceed.     
   
       ¶  7.  Although the right to waive jury trial and the procedures for
  executing a valid waiver are carefully set forth in V.R.Cr.P. 23(a), the
  rule is silent on a defendant's ability-or the showing necessary-to revoke
  a valid waiver, and we have not addressed the issue.  Rules and case law
  from other jurisdictions generally provide, however, that the right to
  revoke is not absolute, but lies within the sound discretion of the trial
  court.  See, e.g., People v. Todd, 687 N.E.2d 998, 1008 (Ill. 1997) ("The
  question of whether a jury waiver may be withdrawn rests within the
  discretion of the trial court unless the circumstances indicate the
  defendant was unaware of the consequences of the waiver." (quotation
  omitted)); Woodson v. State, 501 N.E.2d 409, 411 (Ind. 1986) ("Once
  appellant had effectively waived his right to trial by jury, the withdrawal
  of the waiver rested within the sound discretion of the trial court.");
  State v. Fisher, 891 P.2d 1065, 1069 (Kan. 1995) (noting that a knowing
  waiver of right to jury trial "cannot afterward be withdrawn except in the
  court's discretion" (quotation omitted)); Cason v. State, 505 A.2d 919, 926
  (Md. Ct. Spec. App. 1986) ("[T]he withdrawal of a waiver of jury trial is
  not an absolute right, rather it is one which will be permitted within the
  discretion of the court and upon a showing of good cause."); State v.
  Zemunski, 433 N.W.2d 170, 174 (Neb. 1988) (observing that once the court
  obtains a proper waiver, "a defendant has no absolute right to withdraw or
  revoke the waiver and demand a jury trial," and that the question of
  whether a defendant may withdraw a voluntary waiver is within the trial
  court's discretion); Marquez v. State, 921 S.W.2d 217, 221-222 (Tex. Crim.
  App. 1996) (canvassing cases and adhering to "the prevailing trend to
  permit withdrawal of the waiver so long as it is in good faith and there
  are no adverse consequences" that would "prejudice the state, delay the
  case, impede justice, or inconvenience the witnesses"); Commonwealth v.
  Williams, 553 S.E.2d 760, 764 (Va. 2001) (recognizing that a request to
  withdraw a jury trial waiver "is subject to the circuit court's discretion"
  in light of whether the request will result in substantial delay or impede
  justice).  Given that courts "overwhelmingly agree" on this issue, Marquez,
  921 S.W.2d  at 220, we hold that the decision to permit or deny the
  withdrawal of a jury trial waiver falls within the trial court's
  discretion.
   
       ¶  8.  Appellate courts have taken different approaches, however, to
  the manner in which a trial court should exercise this discretion.  Some
  jurisdictions require a defendant to make an affirmative showing of
  prejudice or a change in circumstances to justify withdrawal of the waiver. 
  See, e.g., Hutchins v. State, 493 N.E.2d 444, 446 (Ind. 1986) (requiring
  defendant to show harm or changed circumstances).  However, "the more
  common trend is to afford the defendant relief so long as other
  participants are not adversely affected" and the request is made in good
  faith.  Marquez, 921 S.W.2d  at 221 (collecting cases).  Possible adverse
  consequences justifying denial of relief include prejudice to the state,
  undue delay of the trial, hindrance of the administration of justice, and
  significant inconvenience to witnesses.  Id.  We agree with the latter
  approach, and hold that a court should permit a defendant to withdraw a
  valid jury trial waiver if the defendant shows an absence of adverse
  consequences to others and demonstrates that the withdrawal is requested in
  good faith.

       ¶  9.  Although some courts have allocated to the state the burden of
  showing a lack of good faith or an adverse consequence flowing from the
  withdrawal, see, e.g., Floyd v. State, 90 So. 2d 105, 107 (Fla. 1956)
  (reversing trial court's denial of defendant's motion to withdraw jury
  trial waiver where there was no showing that the withdrawal was sought in
  bad faith or would result in any adverse consequence), we agree with those
  courts that have allocated the burden to the defendant, see, e.g., Marquez,
  921 S.W.2d  at 222 (collecting cases).  Because the defendant is the party
  seeking to alter the status quo in this context, it follows that the
  defendant should shoulder the burden of justifying the relief he or she
  seeks.

       ¶  10.  To summarize, we hold that in order to withdraw a valid jury
  trial waiver, a defendant bears the burden of showing that the withdrawal
  is requested in good faith, and that granting the request would not
  prejudice the State, unduly delay the trial, impede the administration of
  justice, or significantly inconvenience the witnesses.  This rule protects
  a defendant's constitutional right to a jury trial by conditioning
  withdrawal of a waiver on a showing of good faith and lack of adverse
  consequences, rather than on an affirmative showing of prejudice to
  defendant or a material change in circumstance on the part of the
  defendant.  At the same time, it preserves the ability of the trial court
  to promote the orderly and expeditious administration of justice by
  entrusting the decision to its sound discretion.
   
       ¶  11.  Applying these principles here, we discern no basis to
  disturb the trial court's ruling.  The court, as noted, found that
  permitting defendant to withdraw her waiver literally moments before the
  trial was scheduled to commence would unduly delay the trial, inconvenience
  the State's witnesses-including the alleged teenage victim and her teenage
  friend-who had been subpoenaed and were ready to appear, and prejudice the
  State, which had prepared for trial and was ready to proceed.  Balanced
  against these considerations, defendant made no claim that the waiver was
  invalid or involuntary in any respect, and offered virtually no
  justification for the last-minute request, although trial had been
  scheduled for over a month.  Defense counsel accompanied the motion to
  withdraw with an objection to new evidence the State offered.  Counsel made
  no effort, however, to connect the two issues or otherwise explain the
  basis of the revocation motion, and the court ultimately excluded the new
  evidence.  Accordingly, we cannot find that the court abused its discretion
  in denying defendant's request to withdraw the jury trial waiver.  See
  People v. McCormick, 839 P.2d 474, 481 (Colo. Ct. App. 1992) (holding that
  "it is within the trial court's discretion to permit revocation of the
  waiver [of jury trial] prior to commencement of trial" and affirming denial
  of motion because it was made on eve of trial and would result in
  logistical problems for witnesses), rev'd on other grounds, 859 P.2d 846
  (Colo. 1993); Marquez, 921 S.W.2d  at 223 (affirming denial of a request to
  withdraw a waiver where defendant made the request on the morning of trial
  and failed to demonstrate the absence of adverse consequences); see also
  Mathias v. State, 394 A.2d 292, 295 (Md. 1978) (recognizing, in the context
  of a request to withdraw a jury trial waiver, that the trial court's
  discretionary decisions enjoy "a presumption of validity").
   
       ¶  12.  Defendant next contends the court erred in admitting, over
  objection, N.S.'s friend A.G.'s testimony that N.S. told A.G. at the police
  station that defendant had struck her.  On cross-examination of A.G.,
  defense counsel elicited her acknowledgment that N.S. had not told her
  during their earlier telephone conversation that defendant had struck her. 
  On redirect, the prosecutor asked whether N.S. had said "anything to you
  about [defendant] hitting her," and the witness responded that N.S. had
  told her "at the police station."  When the prosecutor then asked more
  specifically what N.S. had told her, defense counsel objected on hearsay
  grounds.  After some discussion among the court and counsel, the court
  admitted the testimony as a prior consistent statement under V.R.E.
  801(d)(1)(B), and A.G. testified that N.S. told her "[t]hat her mom had hit
  her."
         
       ¶  13.  Defendant asserts the court erred in admitting the testimony
  as a prior consistent statement because it was not made before N.S. had a
  motive to fabricate.  See State v. Carter, 164 Vt. 545, 550-51, 674 A.2d 1258, 1262-63 (1996) (holding that a prior consistent statement is
  admissible to rebut a charge of recent fabrication or improper motive only
  when the statement was made before the charged fabrication or improper
  motive arose).  The defense argues that N.S. fabricated the charges from
  the outset to achieve a change in her custodial parent, so that the
  statements about which A.G. testified were made after N.S. had a motive to
  fabricate, rendering A.G's testimony inadmissible.  The State responds that
  the testimony was not admitted for its truth, but rather to rehabilitate
  N.S. as a witness, and therefore did not have to qualify under the prior
  consistent statement exception to the hearsay rule.  See State v. Church,
  167 Vt. 604, 605, 708 A.2d 1341, 1342 (1998) (mem.) ("When offered to
  rehabilitate a witness, a prior consistent statement is admissible when it
  has some rebutting force beyond the mere fact that the witness has repeated
  on a prior occasion a statement consistent with his trial testimony."
  (quotation omitted)). (FN1)  
   
       ¶  14.  We need not resolve this issue, however, because, even
  assuming that the statement was erroneously admitted as a prior consistent
  statement, its effect was harmless beyond a reasonable doubt for two
  reasons.  See State v. Oscarson, 2004 VT 4, ¶ 29, 176 Vt. 176, 845 A.2d 337 (noting that we may uphold a conviction if error in the admission of
  hearsay testimony was harmless beyond a reasonable doubt).  First, A.G.'s
  testimony regarding N.S.'s statement at the police station was cumulative. 
  See id. ¶ 32 (listing factors courts consider in calculating potential
  harm, including whether testimony was cumulative).  A.G. had already
  testified without objection that N.S. told her about being hit by defendant
  at the police station.  Moreover, the investigating officer had also
  testified that N.S. reported being struck by defendant.  A.G.'s testimony
  regarding the prior consistent statement was thus of little or no
  additional corroborative value.  Second, the court made no mention of
  A.G.'s testimony or the statement at issue in its decision.  See id. ¶¶
  30-31 (recognizing that harmless error analysis must consider whether there
  is a reasonable possibility that the challenged evidence contributed to the
  verdict).  The court, in rendering its verdict, explained that its decision
  turned on N.S.'s testimony, "on simply listening to her at trial [] and
  trying to look at all the motives one might have to not testify
  truthfully."  Ultimately, the court explained that it "found her testimony
  straightforward and the testimony of a child that was not particularly
  thrilled about being put in this position."  Thus, we hold that any error
  in the admission of A.G.'s testimony was harmless beyond a reasonable
  doubt.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Although the prosecutor had argued at trial that the statement was not
  being offered for its truth, we note that the court admitted it as a prior
  consistent statement.