*1 immediately objection, question defendant’s upon in an attempt impeach was asked defendant’s version We conclude that defendant has not shown story. prejudice mo- by denying that the court did not abuse its discretion this tion for mistrial. by denying
Defendant also claims court erred motion for mistrial when the child’s mother testified she had a relief-from-abuse order defendant. On obtained examination, inquired: direct the State time contact with Q. During you any this did period, while he was New York? [defendant] Um, A. in court—-I order on him and restraining had when we went to court.... at objected
Defense counsel and the court point, gave curative Subsequently, requested instruction. defense counsel on the ground mistrial of the testi- prejudicial impact mony could not be cured an instruction. The court denied the motion. answer,
“When a witness
gives
unresponsive
appropri-
ate remedy lies within the discretion of the trial
Rob-
judge.”
erts,
Affirmed.
State Vermont Charles Blackmer
[631 1134] No. 93-149 Allen, C.J., Gibson, Dooley, Johnson, Present: Morse and JJ.
Opinion July Filed *2 Moll, Christopher County C. Windham Deputy State’s Attor- Brattleboro, ney, for Plaintiff-Appellee. General,
Robert Appel, Nelson, J. Defender A. and William Appellate Attorney, Montpelier, for Defendant-Appellant.
Dooley, J. Defendant appeals decision that he be held with- bail, (1) out arguing the State did not establish that guilt evidence was as is the Vermont Con- great required (2) bail; stitution in denial of even if the constitutional the trial court abused its discretion in inapplicable, denying bail; both sub- deprived denial of stantive and law. We affirm. procedural 6, 1993, with January temporary
On defendant was served him order for from restraining relief abuse prohibiting 1993, he approaching January his On was girlfriend. former arrested released violating restraining for order then later, on it. day January conditions he abide One on for again violating he was arrested order. Because he order, had on he been released condition he abide was also with charged violating January condition release. On conditions, 1993, was he he released including consume alcohol or have found that had com- probable cause he mitted a felony. 23, 1993,
On February defendant was charged aggra- vated sexual assault on a nine-year-old girl, crime which punishment maximum is life imprisonment. See V.S.A. *3 3253(b). § 22, alleged crime occurred while February defendant was free on conditions of release from the earlier arrest, charges. At time of his blood-alcohol level was tested at .09%. After court hearing, review ordered defend- bail, ant to be held without for the following reasons: His that has argument light,” attractive, he “seen the while fact, is less than In convincing. it is not by believed court. it a violation, Were order that had a single single would one These multiple and thing. orders violations and the court multiple concludes that the defend- ant simply is not motivated abide orders of the court. The court referred to “seeing defendant as the light” because that was position defendant’s he should why be released on conditions.
Defendant first that argues he not be held may without II, § under chapter Vermont Constitution 40 13 and V.S.A. because, § 7553 he is with an although charged punish- offense able by imprisonment, life the court could find that “evi- II, dence of is 40 guilt great.” Chapter of the Vermont Constitution for not punishable by offenses life imprisonment bail, states that there is a constitutional but there is no right life im- punishable for offenses to bail right constitutional Thus, defend- is guilt great. where the evidence prisonment faces a defendant exists where to bail that the argues ant that fails to show if the State imprisonment of life a punishment is such that this argues Defendant guilt great. evidence case. meets the con that evidence
This has determined Court 12(d) of V.R.Cr.P. if it meets the standards threshold stitutional Duff, v. case. See State facie prima for establishment (1989). standard, that 433, 440, Under 563 A.2d Vt. oral tes affidavits, sworn depositions, “by must establish State substantial, ‘that it has evidence admissible or other timony, . offense . . suffi as to the elements evidence admissible acquittal judgment a motion for grant cient to prevent at 263 V.R.Cr.P. trial.”’ Id. (quoting at 563 A.2d at the two 12(d)(2)). standard adds that this emphasized The Court necessary establishing probable beyond that elements exists, substantial, admissible evidence “(1) of guilt cause: a fact- (2) reasonably convince fairly can and and the evidence Id. guilty.” doubt that defendant a reasonable beyond finder case, In a later (emphasis original). A.2d at 263 bymet this standard “cannot be emphasized this Court Passino, 377, 381, State 154 Vt. inadmissible evidence.” (1990). Passino and admissibility imposed requirement Duff For purposes evidence at trial. admissibility refers those decisions as created we can view the analysis, (1) shown evidence whether the State has steps: two involving beyond a fact-finder reasonably and convince fairly that can whether guilty, doubt that defendant reasonable at trial. will be admissible has shown this evidence State step the second ignored that the court Defendant asserts the evidence concluding *4 used inadmissible evidence included a medical record him was This evidence great. 803; authenticated, hearsay state- V.R.E. that had not been inadmissible because and that were family police ments of the 804a(a)(2) testify, not available to V.R.E. the child victim was not name (3); the child victim did and and a statement of trustworthiness, for analyzed and was not perpetrator the 804a(b). the court’s ruling the basis for Although V.R.E. in confusing, admissibility somewhat out especially separating trial, in from hearing agree the bail admission at we that the Thus, court failed to the go through step process. second the the bail record does show at least the hearing part of evidence court considered the will be admissible at trial. For foundation, without a example, there is no the showing admissible, medical record defect will be admitted the State at the bail hearing. argues State that it affi correctly may proceed by 12(d)(2). affidavit,
davits. V.R.Cr.P. child victim’s although it does not name the admissible perpetrator, provides evidence committed, crime, that a crime was the details of the and the availability the victim to It turn testify. supports ad missibility of the evidence offered the affidavits her mother and another family by stating member age (3). availability 804a(a)(l), of the minor. V.R.E. See These affi recount victim telling davits them what transpired and nam ing as the The victim’s perpetrator. statement occurred after shortly alleged time, assault such that “the content and circumstances of the statements provide substan 804a(a)(4); tial indicia State trustworthiness.” V.R.E. see Duffy, 170, 171, (1992). Thus, Vt. 605 A.2d rec ord establishes that the evidence of the family members will be hearsay admissible under the exception statements minor victims of sexual assault crimes. See V.R.E. 804a. Once considered, this evidence is the State has shown that evidence guilt great. We caution that although record shows clearly the evi- case, dence will be admissible in this that will not always be so. Trial courts have discretion evidence, the admission of that discretion must normally be exercised to determine whether evidence proffered State the bail will hearing at trial. admissible Failure to do so will often mean that de- fendant retains constitutional right bail.
Defendant makes arguments three why denial of bail is erroneous even though there no constitutional right to bail. Before them addressing specifically, emphasize we the narrow- ness the question before us. We had occasion to ex- recently plore the constitutional to bail and the limits places or the courts to Legislature deny bail See specific cases.
456
(1993).
in
Sauve,
566,
very
Except
We of this case. Our standard ceeding grant whether to bail must affirm the is the statute. We applicable review set forth below. proceedings court’s if it is the supported decision 7556(b). 13 V.S-.A. trial court decision is first is that the argument
Defendant’s even where there is no an abuse discretion. We have held that the trial court has the discretion right constitutional to bail Duff, 441, at Vt. at 563 A.2d 264. We grant bail. See 151 of a trial court’s dis comprehensively never defined the breadth recognize Our recent the existence dis precedents cretion. for its standards exercise. See setting specific cretion without Passino, Duff, 283; at at 577 A.2d at Vt. Vt. defined Although specifically A.2d at 264. has Legislature the Vermont right provision ap bail where constitutional with a only charged plies, provided has imprisonment crime life “shall be bailable punishable is great. a matter when evidence V.S.A. right” guilt § 7553. have, however, sufficiently defined the court’s discretion
We this case. The that forms the basis our address decision Dexter, law In re 304, 314-15, 107 A. current 93 Vt. (1919), trial court to which first enunciated the discretion constitutional grant inapplicable. where the “sound, dis- judicial Court noted that discretion involved is cretion, controlled certain and well defined and established rules,” 107 A. at but failed describe those rules. It did 138. state: indictment
Ordinarily, refused after practice, found, cases, or proof guilt is evident capital where great; but we are not called upon define more particularly controlling features in practice such cases .... Had generally county court exercised discretion in question, its determining very likely we determined, should leave matter as there let it be either way, without further . consideration. But the court . . de- *6 cided the relator as a of matter law. This it could not do. The relator lawfully was entitled to the benefit the judicial discretion, court’s her, and it not being accorded she was of her in that deprived right behalf. The defendant Dexter had been acquitted, but the State in
obtained a new trial and the issue involved her right bail at the second trial. The Court that the concluded circumstances ordinarily bail, were sufficient to allow the defendant to have but left question the to the trial entirely court. Dexter, follows on the up language the suggesting
Duff
considerations are similar
to those
the
determining
right to
bail post-conviction.
See
states that explored have the For issue. the example, Massa- chusetts Supreme Judicial Court explained standard as fol- lows: in such a case is not a
[B]ail matter of discre- but is tionary with the judge, who is to give weight to the nature and circumstances subject case. On the of dis- cretionary cases, in capital Blackstone’s observations are no less pertinent today than they were two hundred years herein,” said, “And ago. he “the wisdom of the is law very manifest. To allow bail to be taken for commonly such crimes, enormous would greatly tend to elude public justice: cases, and yet there are though they rarely happen, which would be hard and unjust to confine a man in prison, accused though even greatest offense.” ed.) Blackstone, (8th Commentaries 299. Baker,
Commonwealth v. (Mass. 1961) (ci- 177 N.E.2d see also Arthur v. Harper, 371 So. 2d omitted); tations 1978) (“bail routinely granted be (Fla. should not Ct. App. Dist. placed upon cases, heavy burden should but rather in such he is entitled clearly demonstrate punish- nature of the and the gravity offense despite (Fla. Arthur; 2d 717 faces”), State v. 390 So. aff’d, ment he 1980). Dexter, cases points draw three
We Duff (1) constitutional right states: cases where from other that the norm is switched so is apply, not does (2) release1; court’s the trial discretion and not incarceration broad; must exercise its discre the trial court extremely be heard. opportunity the defendant giving tion after affirmance in this case. points supports Each of those Its rationale is and exercised its discretion. hearing held court its and release is reserved arbitrary. If discretion broad cases, must that the deci extraordinary we conclude only the record. supported sion rationale. the trial court’s briefly
It is address appropriate commonplace and are issued release become Conditions *7 to of and the flight protect in case to minimize the risk every of the participants, particularly and the judicial process rights witness, Nonmonetary as condi- complaining public. as well the the least restrictive nationally endorsed as widely tions are the commission assuring preventing method of appearance Ass’n, II crimes. American Bar Standards of further See (2d 1980). 10-1.3(c) Justice, Standard ed. Appropriate Criminal activities, reasonable restrictions on “impose conditions associations, movements, as and residences of the defendant” from “using intoxicating liq- as the defendant prohibiting well 1 dissent, § separated analysis we 40 of the Vermont have under Unlike from that under the Fourteenth Amendment United Constitution general presumption had on a of States If the trial court relied Constitution. more, agree process without would that serious due con incarceration we did, this is not what the trial court we have cerns would be raised. Because Thus, analyzed hypothetical process purposes. this circumstance for due “extraordinary proposition” we that a we do not believe have endorsed the ‘reversed,’” liberty “presumption pending trial . . . is dissent [of] holding only §with here is that the denial of bail is consistent 40 claims. Our is pretrial law on release in cases where there no Vermont constitu and our process holding is set forth tional bail. Our due infra.
459 10-5.2(c), (d). Standard drugs.” Legisla- uors certain of recognized ture has of conditions release importance allowing revocation of bail for violation conditions release § in 13 certain circumstances. See V.S.A. 7575. When the need for conditions is viewed light possible punishment life it imprisonment, entirely is for the appropriate court to fully bail unless that deny convinced defendant will abide conditions would be imposed were released. The trial court was not convinced here. argues
Next defendant that the bail denial decision deprives him of substantive due law because the court did not he find was risk or a flight danger public. He derives these requirements from United States v. 481 U.S. (1987), where the Supreme United States Court up- Act, provisions held of the federal Bail Reform 18 U.S.C. 3142(e) pretrial detention for permits certain offenses —which to prevent danger to the community against a challenge that — it violated the Fifth guarantee Amendment process. Salerno
findWe only limited applicability upholds statute, case. Because it the federal is no there defini tive ruling any element of that statute is constitutionally More required.2 important, the federal statute very clearly preventive measure, detention and the due discussion tailored purpose effect. Cases that have taken clear principles and limits from Salerno have similarly spe involved See, cific preventive detention statutes. Aime Common e.g., wealth, (Mass. Moran, v.Witt 1993); N.E.2d (R.I. 1990). mind, With these limits we derive (1) three applicable due process requirements from Salerno: bail cannot be denied in order to inflict pretrial punishment; pretrial detention cannot excessive relation regula- to the governs We have no statute that release in cases where the Vermont consti *8 absent, tutional nothing bail is and in Salerno states we must have so, comply process. Although one to argue defendant does not dissent concludes that either there must be a statute or we must set the standards, apparently statutory impedi form. see no We constitutional deriving analysis ment of standards individual cases principles light statutory Salerno of the standard of review. The scheme speedy meaningful appeal allows disputes and of condition of release to this Court. See V.S.A. 7556. must be by the detention the interests served
tory goal,
In these applying sep- action. The interests underlie the court’s understand what consti- cases in Vermont’s arate of life imprisonment treatment a for surrogate are treated “as tution that such crimes indicates As Sauve, 159Vt. at A.2d at 1301. of high flight.”3 a risk case, has a recent record a who to this defendant applied risk of is an increased conditions release violating important an There is also life flight facing possible imprisonment. when and witnesses complainant risk of violence to increased nonmonetary conditions importance this case. Given the justice, de- judge’s to the administration criminal release . of re- that a will not abide conditions termination defendant pretrial lease all functions of detention. implicates is viewed defendant a form While denial of bail here detention, no purpose there is indication preventive entered the trial court’s decision. The fundamental distinction detention and detention violation preventive between recognized by conditions of the Rhode Island Su- release was Court, Superior Court in Mello v. preme (R.1.1977). There, revoking order after upheld the court bail. had committed second offense while on that the revocation did not involve preven- court found tive detention: argued allowing
It has been trial court to revoke in this treads close to the perilously precip- release manner have a ice of detention. We different view preventive . . was release his sec- terrain. . not denied [Defendant] charge public. in order to He was detained protect ond condition of original because he violated reasonable his release. may recognize, argues, relationship hold We as the dissent that this true Legislature adopts imprisonment punishment for a theoretical life no risk ever crimes where there is serious defendant will be sentenced Further, currently proposed, imprisonment. as is the constitutional life right may allow of bail in other be narrowed further to denial circumstances implement purposes. present or to other Neither of these circumstances is
here. *9 . . authority . The the court to bail in revoke certain situations not to ought be construed as to exer- authority cise former preventive past detention. The sanction for acts, the latter a prophylactic the future. We are con- with former. cerned
Id.; Elrod, ex People Hemingway rel. see also 322 N.E.2d (Ill. 1975) (revocation of bail for violation of condition detention); of release is not preventive see generally State v. (Conn. 1992) Ayala, 1173-74 (adopting Mello states). rule and collecting similar cases other Although Mello dealt with a is, different form of action —that revocation of bail rather than denial —that difference in form is not signifi cant in understanding the interests involved. the Salerno requirements, we find nothing
Returning punitive the trial court’s action. The trial judge made clear that the court was with concerned future compliance with con ditions release. It was not concerned with punishing defend actions, ant for past only with whether defendant was an acceptable risk in view of his recent Thus, track record. court considered defendant’s argument that he had “seen the light” and would comply the future and specifically rejected it in denying bail.
Nor can-the court’s actions be considered excessive in light the interests In involved. analyzing this factor in Supreme Court the most gave to the fact weight that preventive detention was limited “to the most serious of crimes.” 481 U.S. at 747. The class of cases for which there nois Vermont consti- narrower, tutional even and this defendant faces possible life imprisonment. class defendants further narrowed here the re-
cent history noncompliance with significant conditions of re- lease. The court is not speculating about future compliance from blank record.
Defendant reads into the Salerno language specific com- mand that the court relate its actions to the ultimate interests of risk of flight preventive detention. Such a command would elevate form over substance and be with inconsistent our limited standard review. Once the court determines that de- cannot fendant be trusted to release, comply conditions of ob interests becomes and other bail flight on risk of the effect a simi adopted has Congress note point, we vious. On by creating detention rationale for lar while on bail of offenses who have been convicted persons unrebutted, for preven allows this presumption dangerous; dangerousness. See finding specific with no tive detention *10 3142(e). have been Act presumptions Bail Reform U.S.C. F.2d Jessup, United States 757 as See constitutional. upheld Comment, When Preven (1st 1985); generally see Cir. the (Still) Invalidity Unconstitutional: Detention Is tive of Statute, Bail L. the Federal 61 S. Cal. Presumption (1988) based 1091, 1120-22 (arguing presumption that the Rev. constitutional). The ration on bail activity on criminal while “ criminality ‘history pretrial is that a of for the presumption ale information, a basis for conclud rational is, mitigating absent community threat poses significant defendant ing require to the that he cannot trusted conform safety and Coyne, while on release.’” United States v. of the law ments (D. 1992) No. (quoting Rep. S. F. 1020 Mass. Supp. in 1984 U.S. Cong. Code & reprinted 1st Cong., Sess. 98th 3202). worst, At the trial used similar judge Admin. News condi here, violations of multiple presuming presumption of release of conditions that no combination tions of release the safety at trial or presence would ensure defendant’s the That public. victim and witnesses and alleged by unrebutted defendant. was we find the to the third Salerno response requirement,
In and legitimate compel- to be protected by interests order which conditions of are the traditional interests on They ling. determined, pen- of the severe magnified release are because alty faced defendant. deprives that the denial of bail
Finally, defendant claims In that the Bail Reform due process. holding him of procedural law, the Court Supreme due deny Act does not into the Act: protections built Salerno procedural itemized (2) (1) counsel; testify opportunity right (3) information; op to cross-examine present opportunity and (4) witnesses; governing preven factors statutory posing (5) a process; requirement decision-making detention tive decision; of reasons for of fact and a statement findings evidence. convincing clear and of proof a requirement all following Salerno interpreted Decisions at 751-52. U.S. re- law as minimum the federal these attributes of or most Aime v. Common- due See process. of procedural quirements Moran, A.2d at 267. Witt v. 214; wealth, 611 N.E.2d involved, require- liberty procedural interest Because of making accurate decision to ensure necessary ments applies. constitutional or not Vermont whether the pro- most or all of courts that view with those agree We the state necessary of the federal law protections cedural due process. comply procedural scheme to in this case the decision proof, for the standard Except con procedural the requirements meets Beview scheme. decision-making text of the Vermont dis unbridled necessary check provides this Court findings cretion, in this case is based and the decision not, however, specify court’s decision does reasons. The do not believe judge. the trial We of proof applied standard proof the standard of a statement of the absence never raised this decision. Defendant to reverse grounds *11 never contested in the trial court and issue standard-of-proof G.S., In re 651, 652, 572 A.2d 153 Vt. facts. See underlying (1990) (failure attack on stand 1350, 1351 to raise constitutional in this Court where in trial court review precludes ard of proof effect on out proof any that standard of had cannot find Court case). fact, to admit appeared In defendant’s counsel come of Defendant’s of conditions of release. least some of the violations of his that he now saw the error in the trial court was position of re abide conditions had a new attitude would ways, failure of the In of this position, in the future. view lease plain used was not proof the standard of specify trial court to error. of serious for the small group standards setting
We is life imprisonment the maximum punishment crimes where that there is defendant is such and where the evidence In the effect determining to bail. no constitutional may appropriateness have on actions of defendant defendant bail, punishment we must mind severe keep (denial Salerno, not an exces- at 747 of bail See 481 U.S. facing. while defendant of offenses committed problem response sive is on bail in denial of bail is limited to “most part only because crimes”). situation, In serious of such a the trial must judge deny have bail to a who is found to the discretion defendant serious, recent multiple committed violations of not here. conditions. That discretion was abused Affirmed.
Johnson, J., that, dissenting. Today, the Court holds in cases in which a of life imprisonment may sentence imposed, that an accused should remain at presumption liberty pending trial is so that the “reversed” becomes that the accused should be incarcerated. This extraordinary proposition finds no in our support precedents or those of the United Nor Supreme by, States Court. is it or even a compelled logical from, conclusion Vermont’s constitutional and statutory provi- that, cases, sions or life imprisonment where capital evidence guilt great, the shall not be bailable as a matter alone, I right. compelled On this am ground dissent. Court Regrettably, compounds its error by sanctioning bail decision-making process that is both without entirely completely standards and I unreviewable Court. do think that such a holding with due con- comports sistent with this Court’s re- responsibility provide appellate view of trial court decisions.
I.
Under United
States
(1987),
Both due process analyses with an begin examination of the individual interest threatened by governmental action. Under substantive due process, governmental action a threatens right “fundamental,” deemed then courts “must examine care- fully importance of the governmental interests advanced and the extent to they which are served the challenged regu-
465 (1977), Cleveland, 494, and 499 Moore v. East lation,” 431 U.S. narrowly if it tailored action only the government uphold interest. governmental and compelling” further a “legitimate Salerno, imposes Procedural due at 749-50. 481 U.S. that would deprive decision any governmental constraints v. Eldridge, Mathews U.S. liberty property, individual to effectu- used 319, (1976)), any procedure requiring protected analyzed by balancing ate such deprivation interests, into ac- taking against any governmental interest Id. at 335. deprivation. the risk of erroneous count apply Thus, procedural both substantive bail, right constitutional decisions, not because independently guar- right fundamental liberty but because at the always has been bodily restraint anteed. “Freedom Process Clause from the Due liberty protected by core of the — Louisiana, v. action.” Foucha U.S. arbitrary governmental v. (1992). See also Aime Common- —, 1780, —, 112 S. Ct. (Mass. 1993)
wealth, (tracing central 210-11 611 N.E.2d law and con- common liberty Anglo-American importance governmental that freedom from concluding stitutional law and and is system government “lies at the heart of our restraint a fundamental undoubtedly right”). who come before the court for bail
Those with crimes charged accused, not con- They merely decisions are not criminals. victed; presump- virtue of the they enjoy right liberty by innocence. “The that there is principle presumption tion of law, axio- innocence in of the accused is the undoubted favor its enforcement lies at the founda- elementary, matic and United law.” of the of our criminal tion administration Coffin (1895). States, 432,453 leg- cannot be 156 U.S. to fair trial away; part protected islated Williams, Amendment. Estelle v. U.S. Fourteenth (1976). on the same those accused of crimes are Consequently, noncriminal de- persons facing possible as other legal footing needs out- may of liberty. Although governmental privations interest, 481 U.S. at liberty an individual’s weigh accused, norm, prior and detention liberty, even for the “is limited carefully exception.” trial or without is the 433, 440, Duff, also State v. 563 A.2d 151 Vt. 755. See “necessarily pre- cuts detention (pretrial *13 466 in
sumption innocence inherent our criminal jurisprudence” limited). and is therefore
Instead of guaranteeing detention will be a “carefully limited exception,” majority begins with the dubious propo- sition that if bail, defendant has no constitutional presumption in favor of liberty is somehow “switched so that the norm is incarceration and not release.” Neither Salerno nor other United States Supreme Court case supports this pre- I Dexter, or In re sumption. Nor do find for it in support 93 Duff (1919), Vt. A. 107 134 the two Vermont cases cited majority. Even there were in support cases, the later two I would discount it. They cases, are not due process and whether the court abused its discretion denying bail can only be meaningfully examined a due process context. Salerno pro- vides that context. Salerno,
Under the initial burden is on the State. To overcome the accused’s right to liberty, must show a “legit imate and compelling” governmental need. Preventive deten tion for the safety of the is the community most frequently Watkins, need. See Ludecke v. recognized 160, 171-72 335 U.S. (1948) (approving unreviewable executive power to detain en Landon, war); Carlson v. emy aliens during 342 U.S. 537- (1952) (detention of Communist resident aliens pending de Texas, portation proceedings); Addington 441 U.S. (1979) (detention of dangerous mentally individuals); unstable (detention U.S. of dangerous criminal de fendants). Other compelling interests recognized in the crimi nal context are risk of flight and danger to witnesses. at 749.
Nothing the Vermont Constitution or bail statutes explic- itly states a compelling governmental interest to be served by denying II, § bail. Chapter 40 of the Vermont Constitution pro- vides:
All persons, sentenced, unless or unless committed for of- fenses punishable by death or life imprisonment when the evidence of guilt great, shall be bailable sufficient' sureties. Persons committed for offenses punishable by death or life imprisonment, when the evidence of guilt is great, shall not be bailable aas matter of right.
This provision only identifies a class of people who are not bail- able a as matter of right subject to penalties of death or —those great. evidence of relevant guilt where imprisonment life statute, tracks the constitution: 13 V.S.A. life im- charged punishable
A with offense person great shall guilt when the evidence prisonment is not guilt If the evidence of right. bailable as matter be bailable accordance sec- shall great, person tion of this title. *14 in
Thus, § trial court’s decision-making 7554 the guides has no to bail when the accused except right all bail cases cases, to In the is left the great. of is latter bail guilt evidence at at 563 A.2d 263. Duff, trial court’s discretion. Vt. manifest statute two corresponding bail amendment is potential punishment interests. Seriousness of governmental crime; the great guilt for seriousness of evidence surrogate a crime for likelihood of conviction. surrogate of the is charged as a those only persons right not bailable matter who that the stron- suggests meet both criteria. This combination interest manifest our bail scheme is gest governmental po- for to be flight: likely tential those most convicted crimes most are the most to carrying punishments likely the severe public flee. to the is a for Preventing danger secondary and,— of due a weaker —interest. If process balancing, po- purposes interest, the then no primary tential were one dangerousness crime, of a a propensity accused who demonstrated toward violence, history be as of of the right. Legislative would bailable amendment, of § 1982 bail the current version shows that dangerousness broad to was re- approach specifically such Sauve, 566, 572, 621 State v. 159 Vt. A.2d jected.
(1993). for violations of conditions —the reason re- prior
Detention the by majority lied on court and affirmed nei-—is a governmental nor interest to be explicitly implicitly ther at our scheme. id. vindicated under bail See (bail revocation for violations of conditions does repeated interest). governmental not rise to the level of a compelling that they violations should relevant to extent only Such that are part interests governmental bear extent, minimizing and to a lesser preventing flight, scheme — danger not to The trial court did find defendant was public. Likewise, not to it did con- endanger public. at risk flee him a greater elude his violations rendered risk to prior Its conclusion was that endanger public. only flee or “de- to fendant abide orders of court.” simply motivated satisfy far due process. This too broad reasoning Moreover, has, if even we that our current bail scheme accept interest, danger public, as a to the I governmental preventing how majority do not understand moves from recognizing creating that interest incarceration for all presumption free right interpret those without a bail. We are not our way or constitutional —in a that vio- provisions statutory — liberty lates the fundamental the Four- guaranteed Hence, teenth Amendment to the United States Constitution. meaningfully analyze we cannot isolation from the re- Salerno. quirements clause as discussed Salerno allows if presumption dangerousness, appro- limited, priately the legislature simply but has not created one Rather, merely here. gave deny courts the discretion to bail to and Salerno limits how courts can exercise defendants, some that discretion. Under even a danger- ousness is of a only carefully limited beginning inquiry into whether the accused is fact And dangerous. even the ac- cused presumed dangerous, court must still found —not — *15 inquire necessary whether incarceration is to prevent the dan- ger. The I only presumption any find for support is the presumption of innocence.
II. that our bail Assuming scheme manifests a legitimate gov- interest, ernmental is still inadequate under Salerno. Due that a requires bail decision be narrowly tailored to ef- Here, fectuate compelling governmental interest. no statu- tory factors guide trial court’s discretion. Neither today’s nor opinion prior Vermont case provides law such any guide- Dexter, Instead, lines. relies on at majority 93 Vt. A. at for the that if proposition the exercise of discretion is “controlled certain and rules,” well defined and established then “we determined, would leave the matter as there let it be way, either without further consideration.” This would be an unremarkable proposition except the “well defined estab- Dexter lished rules” are not articulated in other any case. as the trial court long believes that majority Apparently the re- rules, must rubber stamp Court follows unstated it is required by process; due scrutiny sult. This is the strict no at scrutiny all. defined and has “well making closest this Court come
The the trial court Duff, suggests rules” which established in determining those similar to used look at considerations at 263-64 (citing at 563 A.2d bail. Vt. post-conviction Mullen, 336 A.2d Fountaine apparent with approval (R.1.1976)). Court, while Today, apparently citing Duff by failing back from that decision approval, step takes making decision any such standards. Post-conviction bail apply § con- (judge is controlled statute. See 13 V.S.A. 7574 shall 7554(b) § factors forth and defendant’s sider set Y.S.A. conviction) fact of and 13 V.S.A. during conduct 7554(b) look “nature (judge shall at and circumstances accused, charged, weight offense of the evidence ties, resources, accused’s financial family employment, condition, in the length character and mental residence convictions, community, appearance record of and record of court or of to avoid or failure to proceedings flight prosecution judge may any at court also consider appear proceedings”; “[rjecent of actual or threats of violence” as history violence “character and mental condition of the ac- bearing cused”). such majority adopt guiding does not these or are considerations for bail decisions. We left with pretrial crimes, still irrational result: accused of who persons merely innocence, are less due enjoy given crimes, longer than those convicted of who no protection presumption. entitled course, could stand- legislature, pass setting statute It has not so for release of those not entitled bail. done
ards but, statute, so, such a and need not do the absence of less This Court must process requirements apply rigorously. no or re- principled making either set standards decision *16 the court set such standards. Neither quire apply trial was done here. Salerno, act it upheld
In
the Court
the federal bail
because
the
found the act
balanced
need
appropriately
government’s
the
defendants
nu-
protect
community
dangerous
with
merous
defendants. See
In Aime, Supreme the Massachusetts Judicial Court struck down, recently on due enacted amendments to grounds, law, its judge may state’s bail which exercise provided any discretion to refuse bail to release will person whose endan- safety community. the or the at ger any person N.E.2d 206. the Massachusetts statute under Analyzing court held that the not enact a preventive state could detention scheme “without providing safeguards similar those which Id. incorporated into the Bail Reform Act.” at 212. Congress defective, many The court found the bail amendments fatally ways here, was critical applicable especially but of the “un- given judges bridled discretion” “to determine whether at 214. In contrast, arrested individual is dangerous.” that, federal statute provisions contains consistent with (for process, substantive due narrow the judge’s inquiry exam- ple, the court must find that no release conditions “will reasona- the . . . bly assure safety any person other and the 3142(f)), community,” 18 U.S.C. and the statute enumerates factors to in the bail be considered decision. Salerno
Similarly, Supreme Rhode Island applied Court statute, to its own state’s bail which pretrial allows detention certain classes of defendants defined statute as dangerous. The court upheld statute but also formulated procedures necessary to make conform to federal process, including due that, requirement deciding deny bail, whether to court make of fact findings record regarding individ- Witt, ual Next, defendant’s at dangerousness. 572 A.2d 266. court held any restrictions on be liberty defendant’s must consistent the particular case. Id. circumstances of the this, 267. To guarantee the trial court must consider alter- natives to bail that would denying ensure that Id. would not danger community. Finally, the court endorsed Salerno’s procedural includ- protections, ing the clear-and-convincing finding standard for a of danger- ousness, reasoning that a heightened promotes standard a more determination, judicial accurate which is necessary justify to trial. Id. restrictions liberty prior on defendant’s *17 I believe Aime and Witt stand- properly apply by Salerno ards mandated bail review determinations for defendants who are not bail as of Like the guaranteed right. Witt, statute, § statute our analyzed bail 13 V.S.A. sin- out a class of offenders who But gles may merely be denied bail. a being member the class is not enough support preventive Rather, detention. the court must its exercise discretion within the context of an individualized Witt outlined in inquiry find by clear and that a convincing particular evidence would individual or the danger community and that no conditions of release would be sufficient to prevent that dan- I ger. would remand for consistent with that proceedings pur- (where Duff, pose. See 151 Vt. at at 264 trial court decision, made on inadequate findings case was remanded so it could show on the record it how had exercised its discre-
tion). remand,
On I would also require that the trial court appro- priately apply the clear and im- convincing Having standard. invented a properly incarceration, the Court puts the burden of proof defendant to show that he deserves For liberty. the Court example, states that “it is entirely appro- priate for the court to deny bail unless it is fully convinced that the defendant will abide the conditions that would be im- posed released,” defendant were even though apparently the Salerno accepts requirement there must be clear and convincing evidence that defendant is a risk to flee or endanger — Foucha, public order to deny bail. Cf. —, U.S. at 112 S. Ct. at 1787 on due (striking, grounds, Louisiana stat- ute requiring persons to prove they are not dangerous institution). order to be freed confinement in a mental The Court states that Salerno has “only limited appli- cability” because it upholds the federal bail statute without making definitive on what ruling parts of it are constitu- Aime, Witt tionally required. however, treat all of the Salerno protections Also, as due process requirements. Court seeks to distinguish all three cases because deal they with bail statutes that are explicitly preventive detention meas- I ures. find this a distinction without a difference. Surely 13 V.S.A. at least as the today Court interprets scheme, provides preventive detention. Surely that was is lack- achieve in this case. What court sought
what the trial is not the of our bail scheme interpretation the Court’s ing limitations on detention, any reasoned but preventive goal an accused who lacks constitu- to detain the court’s discretion statutory bail. tional
III. from a due disturbing process perspective, most Finally, and *18 trial court’s deci- approach reviewing is the Court’s asserts, should, today as the Court in this Court sion. Review check unbridled discretion.” necessary “provideQ is at stake liberty fundamental Because defendant’s him liberty should be any attempt deprive and because trial court’s dis- scrutinized, the Court’s review of the strictly the trial court woefully requiring cretion falls short. Instead of sim- process, make a that conforms to due Court record and allows it the reasoning the trial court’s ply hypothesizes example, of various presumptions benefit —for leads to the criminality’” “‘history pretrial defendant’s that “‘he cannot trusted to conform to the re- conclusion release,”’ at the law while on 160 Vt. quirements of United States F. Coyne, Supp. at 1141 (quoting A.2d (D. 1992)), then to a enlarges pre- 1020 Mass. which the Court violations of conditions lead to a multiple prior sumption that “no of conditions of release would conclusion combination safety alleged ensure at trial or the presence defendant’s This use of unsubstan- victim and witnesses and the public.” is inconsistent with the due re- presumptions tiated that decisions fundamental must be quirement involving rights Bail narrowly individually inquiries tailored. should be facts, this de- speculations: based on not Was presumptions endan- endanger fendant at risk to flee or others? Who was witnesses, victim, there gered public? any Was —the effectively protect endangered per- condition that would son^)? not, why If not? a looser danger allowing inquiry.
This case illustrates the came the court for a review of a no-bail deci- Defendant before tran- Reading sion on a sexual assault. charge aggravated and the court’s the court looked at script opinion, apparently file, in the court found violations of prior history defendant’s conditions, of violations of and decided charges conditions that defendant could not with conditions and should be comply states, not, incarcerated. issue is Court whether the as the court can in bail for viola- deny its discretion “substantial” tions conditions of release. These characteriza- “important” tions are the The trial court never did such Court’s. analysis.
The trial did not substantively court evaluate defendant’s If violations of conditions. the court found the “sub- violations “serious,” violations, it say stantial” or did not so. The all prior apparently involving illegally approaching former were not girlfriend, charge. related to current Under Sauve, defendant could not his bail for any revoked these violations or the no-alcohol condition. 159 violating Vt. 575-76, at explanation 1302. The court no provides how the charge. about former violations relate the new Find- prior should ing beginning violations record be the the end of the inquiry.
Salerno lim- requires pretrial “carefully detention be a ited U.S. at exception.” 481 755. Court does not re- today the trial court to be quire either careful or limited in its decision making; has reduced a empty fundamental to an for- concept decision, mula. Under the Court’s accused could be denied *19 it liberty merely because system inconvenient the court him, deal with as long some hypothetical governmental inter- can est be as a produced cover.
Moreover, the trial court problem decision here is that it is wrong, not but that we cannot tell it is The wrong. trial court’s rationale is accepted because it “is not arbitrary.” Both the trial court’s decision making and this Court’s review of fall far short of the strict scrutiny required under substantive process analysis.
IV.
biggest
today’s
loser
decision is not the bail decision-
is the
making process. It
of
presumption
innocence. Based only
accusation —not a conviction —of
sexual as-
aggravated
sault, defendant has lost his presumption of innocence and faces
incarceration,
trial,
indefinite
without a
without
a finding
even
he
risk to flee or endanger others.
as of
is denied
the Court stresses
Although
crimes,”
leg-
the “most
committing
to those
serious
only
easily
attaching
penalty
can
that class
enlarge
islature
imprisonment
presumption
life
crime.
possible
accused of crimi-
too
fear of those
easily
innocence is
eroded
allow
to be com-
We
that erosion
nal behavior.
should
bail decisions
be
process making
pounded
allowing
one.
casual
difficult;
of innocence is often
Honoring
presumption
costs as a
sometimes we must
substantial social
result
pay
But at
our
to the values
the end
espouse.
commitment
we
the inno-
day
protects
innocence
cent; the
take with
whom we
shortcuts we
those
believe
injure
and,
those
accused
ulti-
guilty
only
wrongfully
mately, ourselves.
(Marshall,
J., dissenting).
I would reverse remand for review comports requirements process. with the of due joins I am authorized state that Morse this dis- Justice sent.
In re Vincent Illuzzi [632 346] 92-602 No. Allen, Dooley, C.J., Gibson, Johnson, Present: Morse and JJ. July 30,
Opinion Filed