144 A.3d 311
Vt.2016Background
- Late Oct. 2012: defendant, complainant K.M., and two friends (M.B., H.D.) drank and smoked marijuana, returned to M.B.’s apartment; K.M. and M.B. slept in bedroom, H.D. and defendant on couch. M.B. and K.M. awoke to defendant on top of K.M.; K.M. testified penetration occurred; defendant convicted of sexual assault.
- DNA testing of underwear showed no match to defendant; no sperm identified. Defendant did not testify; defense rested.
- Pretrial juror questionnaires showed two jurors had known sexual-assault victims and indicated possible concern about impartiality; voir dire asked generally whether anyone could not be fair and none said they could not. Defense did not challenge jurors for cause.
- On cross, defense sought to impeach witness H.D. with a 2008 misdemeanor conviction for providing false information to police; trial court excluded the conviction under V.R.E. 609 as more prejudicial than probative.
- In closing, prosecutor made an appeal to juror sympathy for the victims and a comment contrasting the witnesses’ motives with the defendant’s; court sustained an objection to the latter, gave a curative instruction, and denied a mistrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Seating of two jurors who indicated on questionnaires they knew sexual-assault victims | State: voir dire explored the questionnaires and jurors expressly said they could be fair; no cause challenge; court acted within discretion | Atherton: jurors’ questionnaire answers showed bias and impaired right to impartial jury | No plain error. Voir dire dispelled bias; trial court’s empaneling not reversible. |
| Exclusion of witness H.D.’s 2008 conviction for false reporting (V.R.E. 609) | State: prior misdemeanor’s prejudicial effect outweighed probative value | Atherton: prior conviction is for untruthfulness and highly probative of credibility; exclusion was erroneous | Trial court’s Rule 609 analysis on record was inadequate, but error harmless beyond reasonable doubt because H.D.’s testimony was limited and cumulative. |
| Prosecutor’s sympathy/"they deserve justice" remarks in closing | State: argument within latitude emphasizing fairness to victims | Atherton: improper appeal to sympathy/prejudice requiring reversal | Remarks improper but brief and isolated; not plain error; conviction stands. |
| Prosecutor’s implied comment on defendant’s failure to testify / calling him a liar | State: comment referred to contradictions between defendant’s statements to police and trial evidence, not silence | Atherton: prosecutor impermissibly commented on Fifth Amendment right and asserted defendant was lying | Not reversible. Court sustained objection, gave curative instruction; comment was not naturally and necessarily a comment on silence and was fair comment on evidence. |
Key Cases Cited
- State v. Bruno, 60 A.3d 610 (Vt. 2012) (voir dire waiver and plain-error standard for juror challenges)
- State v. Sharrow, 949 A.2d 428 (Vt. 2008) (deference to trial court on juror bias; actual vs. implied bias)
- State v. Percy, 595 A.2d 248 (Vt. 1990) (implied bias doctrine where juror has relationship to trial participant)
- State v. Gardner, 433 A.2d 249 (Vt. 1981) (factors for admitting prior convictions to impeach defendant/witness)
- State v. Ashley, 623 A.2d 984 (Vt. 1993) (Rule 609 favors admissions for convictions involving untruthfulness)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on prosecutorial comment on defendant's silence)
- State v. Zele, 716 A.2d 833 (Vt. 1998) (test whether prosecutor's remark naturally and necessarily comments on defendant's silence)
- State v. Kinney, 27 A.3d 348 (Vt. 2011) (distinguishing fair evidence-based impeachment from improper personal opinion)
- State v. Brandt, 59 A.3d 141 (Vt. 2012) (prosecutor may characterize defendant's contradictory statements as lies when grounded in evidence)
- State v. Rehkop, 908 A.2d 488 (Vt. 2006) (improper inflammatory closing arguments can require reversal)