State v. Breed
117 A.3d 829
Vt.2015Background
- Defendant, a resident in his seventies, was charged with (1) sexual assault (13 V.S.A. § 3252(a)(1)) and (2) sexual assault of a vulnerable adult (13 V.S.A. § 1379(b)(1)) arising from a single 2007 incident in which he forced a woman with intellectual disabilities to engage in a sexual act.
- Jury was selected on January 8, 2013; trial did not commence until January 29, 2013 after the parties (through defense counsel) acquiesced at an earlier calendar call.
- The jury convicted on both counts; the trial court denied a motion for new trial and later denied a pre‑sentencing double‑jeopardy motion seeking dismissal of one conviction.
- Sentences imposed concurrently: 3 years to life for sexual assault and 3–20 years for sexual assault of a vulnerable adult.
- On appeal the defendant challenged: (1) the three‑week jury separation without supplemental juror examination (V.R.Cr.P. 23(d)); (2) double‑jeopardy (two convictions from one act); and (3) admission of the complainant’s brother’s hearsay under the excited‑utterance exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury separation under V.R.Cr.P. 23(d) | State: parties (via counsel) consented to the longer delay; court complied with admonitions and questioned jurors at trial start. | Separation (21 days) without formal personal consent or offer of supplemental voir dire violated Rule 23(d) and prejudiced the defendant; plain error review applies. | No plain error: counsel’s acquiescence and the court’s admonitions and juror questioning negated obvious error; no evidence of juror taint. |
| Double jeopardy for charging both § 3252 and § 1379 from single act | State: differing punishments and statutory schemes imply legislative intent to permit cumulative convictions; prosecution seeks to vindicate separate harms. | Defendant: Blockburger prohibits cumulative punishment because the elements (as charged) overlap so that each offense does not require an element the other lacks. | Vacated sexual‑assault (§ 3252) conviction on double‑jeopardy grounds; upheld vulnerable‑adult (§ 1379) conviction and sentence. |
| Whether to remand for resentencing after vacatur | State & D: ask to vacate the § 3252 conviction only; no resentencing needed because sentencing court would have imposed incarceration based on vulnerable‑adult crime alone. | Defendant requested resentencing. | No resentencing: sentencing court’s remarks and independent sentences show incarceration would have been imposed regardless. |
| Admission of complainant’s brother’s hearsay as excited utterance | State: brother spoke to complainant same day; she was extremely upset; statement admissible under V.R.E. 803(2). | Defendant: insufficient foundation; complainant was upset about discussing the event or familial reaction, not necessarily under stress from the assault itself. | Admission was not an abuse of discretion: brother’s testimony supported that complainant was under stress from the assault when she made the statement. |
Key Cases Cited
- Benton v. Maryland, 395 U.S. 784 (U.S. 1969) (Double Jeopardy Clause incorporated against the states)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (elements test for whether two offenses are the same for double‑jeopardy purposes)
- Whalen v. United States, 445 U.S. 684 (U.S. 1980) (rule of lenity applies where doubt exists about cumulative punishments)
- Albernaz v. United States, 450 U.S. 333 (U.S. 1981) (legislative intent may permit cumulative punishments where statutes address separate evils)
- State v. Neisner, 189 Vt. 160 (Vt. 2010) (application of Blockburger to charged elements as prosecuted)
- State v. Grega, 168 Vt. 363 (Vt. 1998) (presumption against cumulative punishments unless clear legislative intent to the contrary)
- State v. Hazelton, 181 Vt. 118 (Vt. 2006) (discussion of legislative intent and penalties in double‑jeopardy analysis)