2012 VT 73


State v. Brandt (2010-468)
 
2012 VT 73
 
[Filed 31-Aug-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 73

 

No. 2010-468

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Grand Isle
  Unit,


 


Criminal Division


 


 


Jeffrey Brandt


June Term, 2012


 


 


 


 


Ben
  W. Joseph, J.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Joshua S. O’Hara,
Appellate Defender, Montpelier,
  for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.  Defendant Jeffrey Brandt, convicted by a jury of
two counts of second-degree aggravated domestic assault and one count of
driving with a license suspended (DLS), now appeals.  He makes three
arguments: (1) the trial court erred in denying his motion to sever the charges
and grant him separate trials; (2) the jury instruction on excited utterances
improperly bolstered the credibility of the complainant’s out-of-court
statement; and (3) the prosecutor’s opening and closing arguments were
inappropriate and denied him a fair trial.  We affirm.
¶ 2.            
From the testimony of the complainant, the following story
emerged.  On the evening of August 7, 2009, defendant awoke the
complainant, his wife, and told her that he wished to take their shared
vehicle, a GMC Jimmy, to a party.  The complainant pointed out to
defendant that she had to work in the morning, so he needed to return with the
car before she had to leave the next day.  This spurred an
argument, and defendant expressed that he felt as if she had given him a
curfew.  The argument led to violence when defendant threw his wife
down, her head striking an unidentified hard object—either the coffee table or
some boxes.  Defendant then drove to the party, while the complainant lay
dazed in the back seat.  At the party, she managed to find a
ride home from a friend, who observed a bump on the back of her head. 
¶ 3.            
Defendant came back to the house at around five o’clock the following
morning.  The complainant was unable to get the keys to the vehicle from
defendant.  She unsuccessfully tried to call her work to say she would be
late.  Eventually, she decided to leave defendant and began packing her
things.  Defendant locked her out of the car, and a second
quarrel began.  Again, the argument escalated. 
Defendant grabbed the complainant’s face and began striking her head against
the living room wall.  She managed to break away from defendant and fled
from the house, running to the nearby grocery store, A&B Beverage.  She
entered the store and approached an employee, exclaiming that she had been
attacked and that he should call the police for help. 
¶ 4.            
Shortly after the complainant entered the store, defendant arrived in
the vehicle.  The store owner led the complainant, panicked,
into the back of the store, while the employee called 911.  At
the direction of the owner, a customer of the store opened the door and
informed defendant that he was not welcome.  He returned to the vehicle
and drove away.  The complainant was taken to a nearby hospital.
¶ 5.            
On November 6, 2009, defendant was charged with two counts of domestic
assault and one count of driving with a suspended license.  One
count of assault was for defendant’s actions during the evening of August 7;
the other was for his actions during the morning of August 8.  The DLS
charge was for his driving to and from the grocery store on August 8. 
Following a trial, the jury convicted defendant of all three charges. 
Defendant appeals, raising three assertions of error.  
¶ 6.            
We first address defendant’s claim that the trial court erred by failing
to sever the two assault charges and grant defendant separate trials.[*]  Defendant contends that Vermont
Rule of Criminal Procedure 14 provided him with an absolute right to severance
because the charges were not sufficiently related and were joined solely based
on their similar character.   The trial court ruled that the charges
were not joined solely based on their similar character.  The court
reasoned that because “[a]ll 3 incidents occurred on April 7 and 8, 2009, and
they involve the same parties” that therefore “[t]his is a series of events.” 
¶ 7.            
The issue involves two rules of the Vermont Rules of Criminal
Procedure.  The first is Rule 8(a), which provides four possible grounds
for charging a defendant with more than one offense in a single information:
(1) the offenses “are of the same or similar character”; (2) they “are based on
the same conduct”;  (3) they are based on “a series of acts connected
together”; or (4) they constitute “parts of a single scheme or plan.”  The
second is Rule 14, which controls severance of offenses joined in an
information in order to provide separate trials on the offenses.  It
provides a defendant the right to severance if the offenses were joined solely
for the first reason stated above—that they are “of the same or similar
character.”  V.R.Cr.P. 14(b)(1)(A).  If the offenses were joined for
any of the other reasons, the court may sever the offenses before trial if “it
is deemed appropriate to promote a fair determination of the defendant’s guilt
or innocence of each offense.”  Id. 14(b)(1)(B)(i).
¶ 8.            
In this case, defendant invokes Rule 14(b)(1)(A) and claims that the
offenses were joined solely because they are of similar character.  In
that circumstance, he argues, he had a right to severance of the
offenses.  He made no argument in the trial court, and similarly makes no
argument here, that severance was necessary to promote a fair determination of
his guilt pursuant to Rule 14(b)(1)(B)(i).
¶ 9.            
Although the trial court did not use the precise language of Rule 8, it
appears that the court concluded that the offenses involved a “series of acts
connected together.”  Thus, we analyze the case under that ground for
joinder.  The question is one of law, and we review it de novo.  See State
v. Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126 (“The
interpretation of procedural rules
is a question of law which we
review de novo.”).
¶ 10.        
We addressed this ground for joining offenses in State v. Beshaw,
136 Vt. 311, 313, 388 A.2d 381, 382 (1978), where the defendant was charged
with multiple offenses arising out of a disturbance in the prison in which he
was incarcerated.  We explained that the offenses were properly joined
because they “derive from a single happening, and occurred in one geographical
location and within a restricted and uninterrupted time sequence.”  Id. 

¶ 11.        
We have also addressed what constitutes offenses joined because they are
“of the same or similar character.”  In State v. Carter, we
characterized offenses joined under this provision as “random events of the
same or similar character.”  156 Vt. 437, 440-41, 593 A.2d 88, 91
(1991).  In State v. Johnson, we noted that they are “normally
unrelated crimes that ‘involve different times, separate locations and distinct
sets of witnesses and victims.’ ”  158 Vt. 344, 350, 612 A.2d 1114,
1117 (1992) (quoting 2 W. LaFave & J. Israel, Criminal Procedure
§ 17.1(b), at 355 (1984)).
¶ 12.        
Despite our precedents, defendant argues that joinder for a series of
acts connected together is intended to be a limited ground.  Both Criminal
Rules 8 and 14 are based on the 1968 approved draft of the American Bar
Association (ABA) Minimum Standards Relating to Joinder and Severance. 
See Reporter’s Notes, V.R.Cr.P. 8, 14.  Relying on the commentary to these
standards, defendant argues that when no scheme or plan is found, Rule 8(a)(2)
allows for joinder only in cases where “one offense is committed to aid in
accomplishing another.”  ABA Comm. On the Criminal Trial, Standards
Relating to Joinder and Severance 12 (Approved Draft 1968) [hereinafter ABA
Standards].  Defendant urges that we follow the Michigan Supreme Court
decision in People v. Tobey, 257 N.W.2d 537, 542 (Mich. 1977), which
relied on the commentary to interpret the ABA Standards as expressing only a
limited ground for joinder.
¶ 13.        
We do not find the Tobey limitation supported by either the
language of the rule itself or by the ABA commentary.  The commentary
actually lists several examples of when joinder is allowed, including not only
the above-quoted situation but also for “offenses within a close time-space
sequence.”  ABA Standards, supra, at 12.  This latter
description is more consistent with the language of the rule itself, which
contains no words suggesting that the series of connected acts have to be
related in a particular way.  
¶ 14.        
We are more persuaded by decisions from other states that have adopted
joinder and severance rules using language identical to that in the Vermont
rule.  For example, in Gilie v. State, 808 S.W.2d 320, 324 (Ark.
1991), the Arkansas Supreme Court explained that offenses are based on a series
of acts connected together if they occurred “close together in time and
space.”  In State v. Jatta, No. 59099-5-I, 2008 WL 555948, at *2
(Wash. Ct. App. Mar. 3, 2008), a case involving incidents of domestic violence
three months apart and joinder language identical to that in our rule, the
court held that the offenses were sufficiently connected since they involved
the same victim and were  “related in time.”
¶ 15.        
A common theme in the cases is whether evidence in the trial of the
joined offenses would be admissible in the trial of each offense if the
offenses were severed.  See Simmons v. State, 646 S.E.2d 55, 58
(Ga. 2007) (“[W]here evidence of one charge would be admissible in the trial of
another, a trial court does not abuse its discretion by denying a motion for
severance.”).  Thus, in commentary summarizing each of the grounds for
joinder, the ABA Standards note:
Joint prosecution
of related offenses, as described above, does not place the defendant at a
disadvantage in terms of the evidence which may be admitted.  Even if
these offenses were tried seriatim, evidence of all the offenses would be
admissible in each prosecution under the other crimes test.
ABA Standards, supra, at
13. 
¶ 16.        
The present case arises in a context, domestic violence, where we have
generally allowed evidence of other noncharged acts of domestic violence to be
admitted to explain the circumstances of the relationship between the
parties.  See State v. Williams, 2010 VT 77, ¶¶ 13-16, 188 Vt. 405,
9 A.3d 315; State v. Sanders, 168 Vt. 60, 62, 716 A.2d 11, 13
(1998).  As we noted in Williams, this evidence may be probative
“to explain the dynamic of the parties’ relationship and complainant’s conduct
both before and after the assault.”  2010 VT 77, ¶ 16.  Although
defendant argues to the contrary, if there had been separate trials, the
evidence of the other assault might have been admissible in each, and, in that
case, the joinder of the trials would not have put before the jury evidence
that would have been absent without the joinder.
¶ 17.        
In this case, the two charged assaults involve the same complainant and
the same location.  They were relatively close in time—less than twelve
hours apart.  They involved an ongoing conflict over the use of the one
car that defendant and complainant shared.  After the initial dispute and
violence, the complainant decided to leave the marriage, which led to the
second attack.  We hold that the offenses were part of a series of acts,
within the meaning of V.R.Cr.P. 8(a)(2).  We find no error in the denial
of defendant’s motion to sever the assault counts.
¶ 18.        
We next turn to defendant’s claim that the jury instruction regarding
excited utterances was improper.  The court admitted the complainant’s
statements to the employee of A&B Beverage that she had been attacked by
her boyfriend and needed to call the police.  The statements were admitted
as excited utterances, an exception to the hearsay rule pursuant to V.R.E.
803(2).  In addition to admitting the evidence, the court took the unusual
step of instructing the jury on the excited utterance doctrine:
  You have
heard testimony in this case that on August 8, 2009, a witness or witnesses
made statements to some civilians and police officers.  The court has
admitted the witnesses’ statements because they are what are known in the law
as “excited utterances.”
 
When the court
allows the introduction of excited utterance testimony, it is because there is
some evidence that a witness was under stress when the statements were
made.  Under our law, when there is evidence that a person was upset or
excited when statements were made, those statements may be considered by
you.  They are what we call “admissible evidence.”  This is not to
say that the law requires you to accept all such statements as being credible,
but you may consider them because the law understands that such statements may
not be the product of reflection or thought.
 
I instruct you
that a witness’ excited utterances are to be treated equally with all of the
other evidence presented in the case.  It is for you to determine the
credibility of each one of those “excited utterance” statements.  You may
decide to believe all of those statements, to believe some of those statements
and to reject others, or you may decide to reject all of them.
 
Defendant
objected to these instructions when they were proposed, particularly focusing
on the last sentence of the second paragraph and its reference to the
statements not being the product of reflection or thought.  As drafted at
the time of the objection, this sentence said that “the law understands that such
statements are unlikely to be the product of reflection or thought.”  The
trial judge diluted that sentence to the version above.  
¶ 19.        
When reviewing jury instructions, we will examine the instructions as a
whole in order to determine if they were misleading or inadequate.  State
v. Shabazz, 169 Vt. 448, 450, 739 A.2d 666, 667 (1999).  We will
assign error if the instructions undermine our confidence in the verdict. 
State v. Brooks, 163 Vt. 245, 250, 658 A.2d 22, 26 (1995).  
¶ 20.        
Rulings on the admissibility of evidence are made by the court and not
by the jury.  See V.R.E. 104(a).  Thus, there was no reason for the
court to give this instruction.  We recognize that it is desirable for the
court to instruct the jury on how to approach and weigh the evidence.  In
this vein, the court gave instructions on credibility of witnesses, credibility
of law enforcement officers, circumstantial evidence, prior inconsistent
statements, and prior statements made by the defendant.  Apparently, the court
saw its excited utterance instruction as similar to the others, although it
explained the grounds for admissibility when the other instructions did
not.  
¶ 21.        
We recognize that there are circumstances where the court may have to
explain the admission of particular evidence to the jury for clarification or
to guard against prejudice.  See Ulm v. Ford Motor Co., 170 Vt.
281, 291, 750 A.2d 981, 990 (2000) (allowing curative instruction on excited
utterances because lawyer had argued in closing that excited utterances were to
be given special consideration).  There are no special circumstances here,
however.  We agree with defendant that because the court singled out this
evidence and explained its admissibility, there was some danger that the jury
would give it undue weight.  For this reason, we do not follow the
unpublished Tennessee decision cited by the State, State v. Ward, No.
E2004-016650CCA-R3-CD, 2005 WL 3590992, at *9 (Tenn. Crim. App. 2005), holding
that the trial court acted within its discretion in giving an instruction to
explain why excited utterance testimony was admitted.  In our view, the
court should not have given the instruction.
¶ 22.        
We disagree with defendant, however, that in this case the jury
instruction on excited utterances improperly bolstered the credibility of the
complainant.  Assessment of witness credibility is a task left solely to
the jury, and instructions should not evaluate the relative weight of testimony
or the credibility of witnesses.  See State v. Martel, 122
Vt. 491, 494, 177 A.2d 236, 239 (1962); Noyes v. Parker, 64 Vt. 379,
382-83, 24 A. 12, 13 (1892).  The instruction given in this case did not
violate this principle.  Although the original language might have
suggested special weight for an excited utterance, the instruction ultimately
given to the jury was more benign.  The final instruction merely stated
that if there was “some evidence that a witness was under stress . . . such
statements may not be the product of reflection or thought.”  It
went on to emphasize that the jury must determine credibility, treating excited
utterances equally with all other evidence. 
¶ 23.        
Furthermore, the instruction was not an incorrect statement of Vermont law. 
While the trial court’s decision to give an instruction explaining the excited
utterance hearsay exception was unusual, the instruction was not inaccurate or
misleading. See V.R.E. 803(2); State v. Muscari, 174 Vt. 101, 111, 807
A.2d 407, 415 (2002) (upholding instruction that was accurate and served
cautionary purpose).  Indeed, the instruction in this case is essentially
the same as that given in Ulm, and we held in that case that it was
accurate.  See Ulm, 170 Vt. at 291, 750 A.2d at 989-90.
¶ 24.        
The instruction on excited utterances does not undermine our confidence
in the verdict.  We can say beyond a reasonable doubt that the verdict
would have been the same had the instruction not been given.  Therefore,
its inclusion was harmless.  See State v. Williams, 2010 VT
83, ¶ 35 (“Error is harmless if we can say beyond a reasonable doubt that the
jury would have convicted absent the error.”).
¶ 25.        
Defendant finally claims that aspects of the prosecutor’s closing arguments
were inflammatory and unduly prejudicial.  Defendant failed to object to
the prosecutor’s argument at trial, so the claim will be reviewed for plain
error.  See V.R.Cr.P. 52(b).  In these circumstances, defendant faces
a very limited standard of review.  “Plain error can be found only in
exceptional circumstances where a failure to recognize error would result in a
miscarriage of justice, or where there is glaring error so grave and serious
that it strikes at the very heart of the defendant’s constitutional
rights.”  State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881
(1986).  In challenges to the prosecutor’s closing argument, we have found
reversible error absent an objection only if the argument is “‘manifestly and
egregiously improper.’”  State v. Ayers, 148 Vt. 421, 426, 535 A.2d
330, 333 (1987) (quoting State v. Bailey, 144 Vt. 86, 100, 475 A.2d
1045, 1053 (1984)).  In making this judgment, we have considered a number
of factors:  
the
blatancy of the challenged statement, the impact on the theory of the defense,
the persistence and frequency of the statement, the opportunity for the court
to minimize potential prejudice, the strength of the evidence supporting the
relevance of the statement, the overall strength of the State’s case, the apparent
motivation for making the remarks, and whether the statement was inflammatory
and attacked defendant’s character.  
 
State v. Hemond, 2005 VT
12, ¶ 12, 178 Vt. 470, 868 A.2d 734 (citations omitted).
¶ 26.        
Defendant alleges that the prosecutor made improper arguments in three
respects.  First, he called defendant a liar in two instances and argued
that defendant called others liars.  As to the latter statement, the
prosecutor was referring to the testimony of a police officer that defendant
called the persons who had been at A&B Beverage on the morning of August 8
liars.  In his closing argument, the prosecutor stated that defendant lied
about how he confronted the police officer.  In his opening statement, the
prosecutor argued that he could not determine why defendant was saying that the
witnesses lied about his presence at A&B Beverage “when he was [lying]
patently.”  
¶ 27.        
Second, he claims that the prosecutor was appealing to the jurors’
sympathies when the prosecutor referred to the complainant as having been
brutalized and expressed in the opening statement that he could not convey the
complainant’s passion, pain, and hysteria when she entered A&B Beverage on
August 8.  Finally, defendant claims that the prosecutor personally
attacked defendant’s character when he argued in rebuttal that defendant was
“contemptuous of the law” for driving with a suspended sentence and
“contemptuous of life” for his violence to the complainant.
¶ 28.        
We have been critical of prosecutor arguments that label defendant as a
liar because of the special weight the jury may place on the opinion of the
prosecutor.  See State v. Francis, 151 Vt. 296, 299-300, 561 A.2d
392, 394 (1989).  But we have rarely reversed a criminal conviction
because of such statements, particularly where there has been no
objection.  Here, the prosecutor’s statement that defendant was lying
about the details of his meeting with the police officers did not involve
events central to the case.  The statement that defendant was lying about
whether he went to A&B Beverage was central to his defense to the DLS
charge, but was closer to fair comment because defendant had told an officer
that the independent observers at A&B Beverage were liars.  This is a
point on which the State’s case was strongest because it was based on the
testimony of neutral witnesses.  The court gave a standard instruction to
the jury that statements made by the lawyers are not evidence and should not be
considered as such.  We conclude that the circumstances of the
prosecutor’s statements in this case are close to those in State v. Kinney,
2011 VT 74, ¶¶ 10-12, 190 Vt. 95, 27 A.3d 348, where the prosecutor’s statement
that defendant lied to the police did not amount to plain error.
¶ 29.        
We cannot find that the second category of statements was manifestly and
egregiously improper.  The prosecutor was entitled to comment on the
evidence.  The evidence supported the State’s claim that the complainant
entered A&B Beverage in a hysterical and frightened condition, experiencing
pain.  It was fair for the prosecutor to focus on her actions and mental
state.  The prosecutor’s characterization that the complainant had been
brutalized was also within the range of the evidence.
¶ 30.        
Defendant has focused particularly on the rebuttal comments that
defendant was contemptuous of the law and of life.  Again, we do not find
that the statements rose to the level of plain error.  Certainly,
defendant’s driving to A&B Beverage with a suspended license, if believed by
the jury, showed an intentional disregard for his legal responsibilities that
the jury could consider.  According to the jury instructions, the jury had
to find that defendant acted recklessly to convict him of the assault
crimes.  This included finding that defendant’s conduct was a “gross
deviation from how a law-abiding person would have acted in the same situation”
and that defendant “consciously ignored a known, substantial and unjustifiable
risk that his conduct would cause injury to [the complainant’s] face and/or
head.”  While the labeling of defendant’s actions as contemptuous went
beyond what the State had to prove, they were comments on defendant’s conduct
with respect to the charges, rather than general attacks on his
character.  Although the prosecutor must be fair in his comments, he can
be harsh in describing defendant’s conduct.  We do not find the choice of
words to be manifestly and egregiously improper. 
Affirmed.

 
 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 





[*] 
Defendant’s motion sought separate trials for each of the counts, the two
domestic assaults and the driving with license suspended.  The trial court
denied the motion with respect to all of the counts.  Defendant has not,
however, appealed the failure to sever the DLS charge. 



