                                       ENTRY ORDER

                         SUPREME COURT DOCKET NO. 2014-462

                                  DECEMBER TERM, 2014

                                                  }    APPEALED FROM:
State of Vermont                                  }
                                                  }
   v.                                             }    Superior Court, Rutland Unit,
                                                  }    Criminal Division
Chad E. Morris                                    }
                                                  }    DOCKET NO. 1582-11-14 Rdcr
                                                  }
                                                       Trial Judge: Thomas A. Zonay

                         In the above-entitled cause, the Clerk will enter:

          In this bail appeal, defendant Chad E. Morris challenges the superior court’s imposition
of a condition of pretrial release requiring that he give a surety bond or cash of $100,000.
Defendant argues that under the facts of this case, a bail requirement in this amount violates the
statutory requirement that conditions of release must be the “least restrictive combination
of . . . conditions which will reasonably assure the appearance of [defendant] as required” in
court. 13 V.S.A. § 7554(a)(1). We affirm.

        The transcripts and documents in the trial court record, including affidavits of the
investigating police officers, reflect the following, which is uncontested for purposes of this
appeal.1

        In the very early-morning hours of November 1, 2014, police received a complaint from a
neighbor about a noisy fight in an apartment in Clarendon. Shortly thereafter, a trooper arrived
at the unit, where defendant lived with his girlfriend, and saw defendant’s girlfriend being treated
by ambulance workers for injuries. The trooper noted that the girlfriend had blood on her hands
and face and was shaking and crying. By that time, defendant had already left the scene. The
trooper interviewed the girlfriend, who told him that defendant had returned home from a bar
intoxicated, and she demanded that he leave the residence and return the keys. In the ensuing
heated argument and physical altercation, defendant advanced on the girlfriend in a threatening
way and the girlfriend struck him in an attempt to get him to leave. Defendant stated “I’ll
fucking kill you,” hit her in the face several times, bloodying her nose and injuring her arm and


        1
           In his motion to reduce bail below, defendant conceded that “[t]he weight of the
evidence, at the present [time], is sufficient to survive” a motion to dismiss for lack of a prima
facie case. See V.R.Cr.P. 12(d); see also 13 V.S.A. § 7554(g) (“Information stated in, or offered
in connection with, any [conditions-of-release] order . . . need not conform to the rules pertaining
to the admissibility of evidence in a court of law.”).
back, and choked her until she “crumbled on the floor gasping for breath.” Defendant then took
her cell phone, preventing her from calling police or an ambulance, and left the scene.

        Seven hours later, police responded to a 911 call from a neighbor reporting a second
ongoing fight at the same apartment. Defendant had returned to the apartment and engaged in a
loud verbal argument with the girlfriend. Defendant threw a ceramic coffee mug into the sink,
where it broke, and left the apartment again to go to work. Police arrived soon after and the
girlfriend reported that in addition to the incident in the early-morning hours of that day,
defendant had choked her in the past; had threatened to kill her and her son in the past; had
access to firearms; and was “violently and constantly” jealous and controlling. While police
remained at the apartment, defendant telephoned her around six times, leaving several voicemail
messages, stating that he “would stick a knife in her” and that she was a “dumb bitch” and
“fucking cunt.”

        Less than an hour after the second incident, police arrested defendant at his job site.
Defendant confirmed that he had driven home that night from a bar and was “pretty buzzed.” He
stated that the girlfriend had struck him, that he had tried to restrain the girlfriend only so he
could collect personal property and leave, and that he could not remember other details because
he had been intoxicated. Police served defendant with a relief-from-abuse order obtained by the
girlfriend that morning. Defendant stated “I’m going to string her by the neck and fuck her in
the ass” and told the arresting trooper to “stick [the relief-from-abuse order] up my ass.”

        Defendant was charged by information two days later with one count of felony first-
degree aggravated domestic assault, 13 V.S.A. § 1043(a)(1), one count of misdemeanor
interference with access to emergency services, id. § 1031; and one count of operating a motor
vehicle while license was suspended for the sixth or subsequent time, id. § 674(a)(2). Defendant
was arraigned the same day and pleaded not guilty. The court imposed nine nonmonetary
conditions of release (which defendant does not contest in this appeal) and a requirement that
defendant give a surety bond or cash of $100,000. Id. § 7554(a)(1)(E).

        Weighing in favor of imposing a higher bail requirement, the court considered: (1) the
nature and seriousness of the charged offenses, most significantly the aggravated domestic
assault charge, which carries a maximum penalty of fifteen years’ imprisonment; (2) the “strong”
weight of the evidence and defendant’s concession that the state had a prima facie case; (3) the
circumstances leading up to the incidents of November 1 and defendant’s “character and mental
condition,” including defendant’s possible drug use and the likelihood that defendant had
previously engaged in “extreme” actual or threatened violence toward the girlfriend and her son,
and had access to firearms; (4) defendant’s multiple voicemail messages to the girlfriend and
comments to arresting officers, which the court found were not only “crude” and “coarse” but
also “direct” threats to commit violent acts against the girlfriend; (5) defendant’s twelve past
misdemeanor convictions and two past felony convictions (a 2005 conviction of possession of
more than 200 milligrams of heroin and a 2000 sexual assault conviction), which would likely




                                            2
affect possible sentencing; and (6) defendant’s past revocation of probation in 2002 following a
violation of his terms of probation.2

       Weighing in favor of imposing a lower bail requirement, the court considered that
defendant had strong community ties, was a lifelong resident of the community, lived near his
parents and brother and would, if released before trial, live in his parents’ home, 3 had been self-
employed for the past two years as a construction worker and roofer, had no significant failures
to appear despite his extensive criminal history, and had properly registered with the sex-
offender registry each year since he was convicted of sexual assault in 2000.

       Weighing all the factors, the court determined that “a risk of non-appearance significantly
outweigh[ed] the other factors” and imposed a $100,000 bail requirement as well as the nine
nonmonetary conditions of release.

        Following the arraignment, defendant moved on December 8 for a bail-review hearing
and for a reduction in the monetary bail requirement. See 13 V.S.A. § 7554(d)(1) (“A person for
whom conditions of release are imposed and who is detained as a result of his or her inability to
meet the conditions of release . . . shall . . . be entitled to have the condition reviewed by a judge
in the court having original jurisdiction over the offense charged.”). At the December 15 bail-
review hearing, defendant argued that the nonmonetary conditions of release imposed by the
court were sufficient, and that “at this point it appears that a $100,000 bail requirement would be
unnecessary to reasonably assure his appearance.” Defendant suggested that a $10,000 secured
appearance bond would be an “appropriate . . . lesser amount” that would be “sufficient to reach
his surety.” Both the State and defendant largely renewed their arguments raised at the
arraignment, with defendant emphasizing that defendant’s parents had made a commitment to
notify police if defendant was not compliant with conditions of release. The trial court denied
the motion to reduce bail and maintained the bail amount at $100,000, again determining that
“[w]hen the Court looks at everything in this case it notes that . . . [the Section] 7554 factors—
the seriousness, nature and circumstances, the weight of the evidence, Defendant’s prior record
and Defendant’s character and mental condition—weigh heavily in favor of significant bail being
necessary to reasonably assure his appearance.”

       Defendant appealed the cash bail requirement. See 13 V.S.A. § 7556(b).



       2
           The court considered, but declined to accept the State’s arguments that high bail was
justified because defendant “fled the scene,” and that defendant had failed to appear in
connection with a charge in 2000. On the first point, the court commented that on “the available
information while he may have had an idea that the police might show up . . . the Court can’t
find that he ‘fled’ . . . from the police at that moment.” On the second point, the court found that
the 2000 failure to appear was a post-conviction failure to appear, “presumably after needing to
pay a surcharge,” and was thus not probative of the likelihood that defendant would abscond.
       3
          See 13 V.S.A. § 7554(a)(2)(A) (allowing court to order, as condition of release, that
defendant be “[p]lace[d] in the custody of a designated person or organization agreeing to
supervise him”).


                                              3
        Generally, a person charged with an offense “shall be ordered released on personal
recognizance or upon the execution of an unsecured appearance bond” before trial, “unless the
judicial officer determines that such a release will not reasonably assure the appearance of the
person as required.” Id. § 7554(a)(1). “In determining whether the person presents a risk of
nonappearance, the judicial officer shall consider, in addition to any other factors, the seriousness
of the offense charged and the number of offenses with which the person is charged.” Id. If the
court determines that there is a risk of nonappearance, the court must impose the least restrictive
condition or combination of conditions “which will reasonably assure the appearance of the
person as required.” Id. Such conditions may include the requirement that defendant execute a
surety bond or deposit cash. Id. § 7554(a)(1)(E). On appeal, this Court will affirm the superior
court’s bail determination if it is “supported by the proceedings below.” Id. § 7556(b).

        On appeal, defendant emphasizes that he has strong community ties and has shown no
inclination to abscond in the past. He notes that concerns about protection of the public may
warrant protective conditions on release, but do not support the imposition of a bail requirement.
Defendant further argues the trial court improperly based the amount of bail solely on the
seriousness of the charge and that the bail amount is unsupported because the superior court did
not conduct any “articulated analysis” of why $100,000—rather than some lesser amount—was
the least restrictive condition that would reasonably assure defendant’s appearance, and did not
take into account defendant’s individual financial circumstances. Defendant argues that while a
detailed financial analysis is not necessary, the court must link the factors considered to the
ultimate amount set.

         We agree that the purpose of bail is to mitigate the risk of nonappearance, and that bail
may not be set to punish the defendant or to protect the public. State v. Brown, 2005 VT 104,
¶ 10, 179 Vt. 22, 26. Protection of the public may be accomplished through other conditions
listed in 13 V.S.A. § 7554(a)(2), or in accordance with the requirements of 13 V.S.A. § 7553a. If
the trial court had required substantial cash bail on account of its concerns for public safety, its
order would contravene the statutes governing conditions of pretrial release.

        However, we conclude that the trial court’s imposition of substantial cash bail was
supported by its findings and conclusions concerning the risk of nonappearance.
Notwithstanding defendant’s acknowledged ties to the community and past history of appearing,
given the seriousness of the charge, the strength of the evidence, defendant’s substantial criminal
history, and defendant’s behavior in connection with and subsequent to the alleged offense, the
trial court was within its discretion in concluding that substantial cash bail was required to secure
his appearance. Defendant’s repeated threatening telephone messages and direct threats of
violence in the presence of a state trooper demonstrate a threat to public safety, but also reflect
on his character and mental condition—factors that bear on defendant’s risk of nonappearance.
See 13 V.S.A. § 7554(b) (“Recent history of actual violence or threats of violence may be
considered by the judicial officer as bearing on the character and mental condition of the
accused.”).

       With respect to the amount of the bail requirement, the trial court’s minimal findings and
discussion concerning the amount of bail, as opposed to the necessity of bail, make this a close
case. On the one hand, when setting such high bail for an indigent defendant, a trial court must



                                             4
cite some evidentiary support for the amount set. State v. Duff, 151 Vt. 433, 436 (1989) (lack of
evidentiary support for bail requirement of $150,000 for indigent defendant required conclusion
that the amount could not be justified under 13 V.S.A. § 7554). On the other hand, a defendant
“need not be capable of meeting bail in order for the amount to be supported by the record.” Id.
In this case, the trial court weighed the various factors and found that they “weigh heavily in
favor of significant bail being necessary to reasonably assure [defendant’s] appearance.” In
contrast to the defendant in State v. Duff, defendant here has a substantial prior criminal record
and the record contains evidence of behavior in connection with and following the alleged
offense that casts serious doubt on his stability and condition. The court here was cognizant that
the amount being set was substantial and appropriately justified it on the record. See State v.
Girouard, 130 Vt. 575, 581 (1972) (“The determination of the amount of bail set is one of
judicial discretion, controlled, of course, by certain guidelines. To maintain error, the defendant
must show an abuse or withholding of discretion by the court.” (citations omitted)). At some
point a court’s bail requirement may be so out of synch with a defendant’s conceivable ability to
meet bail that it cannot be fairly considered to be the least restrictive means of securing a
defendant’s appearance, but on this record the trial court did not exceed its discretion.

       Affirmed.

                                                 FOR THE COURT:



                                                 Beth Robinson, Associate Justice




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