State v. Norman McAllister, 202 A.3d 989

Background

Norman McAllister was tried for sexual assault and two counts of procuring prostitution based on alleged sex-for-rent and sex-for-electric-bill arrangements with the complaining witness, S.L.; jury convicted him of one count (sex-for-electric-bill) and acquitted on the others.
Parties presented competing he-said–she-said accounts about consent, scope of sexual activity, and whether sexual acts were transactional to secure housing or bills.
Pretrial, McAllister moved to exclude evidence of other bad acts; the court granted the motion in part and denied it in part, reserving right to revisit rulings at trial.
At trial the State was allowed on cross-examination to elicit testimony that McAllister had allegedly propositioned a third party, D.L., for a sex-for-rent scheme—despite earlier pretrial limits on that evidence.
During direct examination defendant made a statement that S.L. "did it with a guy before for money," the State objected, then declined to press for a ruling; later, while deliberating, the jury asked whether the statement had been excluded and the court instructed the jury to disregard the testimony.
The Supreme Court reversed and remanded for a new trial, holding (1) admission of the D.L. evidence was an abuse of discretion and prejudicial, and (2) the court erred by retroactively striking/advising the jury to ignore testimony after the jury began deliberating and after the State effectively withdrew its objection.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of prior bad-acts evidence concerning D.L.	Evidence shows a common plan/modus operandi and provides context for S.L.’s allegations.	Evidence was propensity evidence, not tied to any disputed element; highly prejudicial and previously limited by the court.	Court abused discretion admitting the D.L. proposition testimony; it lacked non-propensity relevance and was substantially more prejudicial than probative.
Retroactive instruction to jury to disregard admitted testimony (mid-deliberation)	The court could cure confusion by instructing jury to disregard misleading testimony.	The State withdrew objection at trial; once evidence was admitted it could not be struck after deliberations began—retroactive exclusion is improper and prejudicial.	Court erred in instructing jury to ignore testimony after deliberations began; the State effectively withdrew its objection and judge lacked authority to retroactively exclude.
Whether the State’s conduct waived future exclusion by declining to press its objection	State: it objected and reserved rights; clarification/striking was still available later.	State effectively withdrew objection by telling defense to “move on,” precluding later exclusion.	Court concluded the State effectively withdrew the objection and thus could not seek to exclude the testimony later.
Other trial errors (invocation, Brady/Giglio disclosure, sentencing condition)	State defended against preservation and harmlessness; some issues unlikely to recur on remand.	Defendant claimed Miranda/invocation violation, Brady/Giglio material nondisclosure warranting continuance/dismissal, and improper sex-offender counseling condition.	Court did not reach merits of these claims because reversal on the first two errors required a new trial.

Key Cases Cited

State v. Winter, 162 Vt. 388 (discusses admissibility of uncharged-misconduct evidence and need to show non-propensity relevance)
State v. Lumumba, 197 Vt. 315 (trial court decides admissibility; Rule 104(a) practice)
State v. Williams, 188 Vt. 405 (standard for reversal for abuse of discretion in evidentiary rulings)
State v. Lawrence, 194 Vt. 315 (vigilance required when admitting uncharged-misconduct evidence)
State v. Forbes, 161 Vt. 327 (warning about jurors using uncharged misconduct to assess guilt)
State v. Bruyette, 158 Vt. 21 (modus operandi evidence admissible to prove identity when distinctive signature exists)
State v. Keiser, 174 Vt. 87 (procedure when jury sends a question during deliberations)
State v. West, 151 Vt. 140 (trial court discretion on supplementary jury instructions)
State v. Boglioli, 190 Vt. 542 (discretion to offer supplemental instructions in response to jury question)
State v. Bolaski, 196 Vt. 277 (later clarification of law regarding jury instructions)
State v. Rooney, 189 Vt. 306 (discussing Brady/Giglio disclosure obligations)
Brady v. Maryland, 373 U.S. 83 (suppression of favorable evidence violates due process)
Giglio v. United States, 405 U.S. 150 (impeachment evidence by promise or reward must be disclosed)