2013 VT 22


State v. Casey (2011-205)
 
2013 VT 22
 
[Filed 15-Mar-2013]
 
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, 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.
 
 

2013 VT 22

 

No. 2011-205

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Shane Casey


October Term, 2012


 


 


 


 


Michael
  S. Kupersmith, J.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General, for
  Plaintiff-Appellee.
 
William A. Nelson, Middlebury, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.  Defendant appeals his conviction of two counts
of aggravated sexual assault, alleging that the trial court erred in (1)
denying defendant’s motion to sever a joint trial; (2) refusing to grant a new
trial after codefendant pled no contest midtrial; and (3) admitting the
victim’s diary as evidence of her sexual abuse.  We affirm.
¶ 2.            
This case has a long and winding history.  The State prosecuted
defendant and codefendant, Stacey Parnitzke, with
whom defendant was romantically involved, for multiple counts of aggravated
sexual assault.  The charged incidents occurred between 2005 and 2006.
 There have been three jury trials, presided over by two judges.
 Separate counsel represented defendant and Parnitzke,
but the court joined their cases for discovery, pretrial motions, and all three
trials.   
¶ 3.            
The first trial in June 2009 resulted in a hung jury.  The second
trial in April 2010 led to convictions against both defendants, but due to the
improper admission of evidence, the trial court vacated the convictions and
granted a new trial.  The third trial commenced on January 31, 2011. After
three days of trial, on February 2, 2011, Parnitzke
pleaded no contest to a reduced charge of sexual assault on a minor, which ended
her participation in the case.  The third trial drew to a close on
February 9, 2011.  Defendant was convicted of two counts of aggravated
sexual assault.  Defendant filed a timely motion for a new trial, which
was denied.  This appeal followed.
¶ 4.            
 Defendant first claims that he requested severance before the
third trial and asserts that the court impermissibly denied his motion to
sever, arguing that there was a “reasonable likelihood of prejudice” that could
not be eliminated.  Defendant and Parntizke
were charged in separate informations.  Before
the first trial, the State moved to join the cases pursuant to Vermont Rules of
Criminal Procedure 8(b)(3)(A), 8(b)(3)(B), and 13(a), contending defendants
were charged with offenses that were “closely connected” and part of a “common
scheme or plan.”  Both defendant and Partnitzke
objected to the State’s motion for joinder.  Nonetheless,
the court granted the State’s motion under Rule 13(a), which authorizes the
court to join cases for trial even though they were filed separately.  
¶ 5.            
Rule 13(a) gives the court broad discretion to order joint trials where
cases could be joined for pleading under Rule 8.  See Reporter’s Notes, V.R.Cr.P. 13(a).  Rule 8 authorizes the joinder of defendants when “it is alleged that the several
offenses charged were (A) part of a common scheme or plan; or (B) were so
closely connected in respect to time, place, and occasion that it would be
difficult to separate proof of one charge from proof of others.”  V.R.Cr.P. 8(b)(3)(A)–(B). 
The trial court reasoned that because there were allegations of simultaneous
sexual assault, whereby both defendants were allegedly abusing the victim at
the same time, such acts would constitute a common plan or scheme under Rule
8(b)(3)(A).  Similarly, the court found that because the charged
offenses all occurred between the same time frame and in the same place, the
allegations were “closely connected” under Rule 8(b)(3)(B).  Further, the
court concluded that there was “no reasonable likelihood that [the]
defendant[s] would be prejudiced by a joint trial,” finding that the evidence
involved was not so complicated that the jury would have difficulty
understanding the allegations made as to each defendant.  See V.R.Cr.P. 14(b)(2)(D)–(E).  Specifically
addressing severance with respect to defendant, the court stated:
 
The State has given notice of its intent to introduce other uncharged acts
under V.R.E. 404(b) against each defendant. Defendant-Casey argues that the
jury will be required to distinguish between acts involving other men and
Defendant-Parnitzke and those acts involving these
two defendants. Defendant-Casey also argues that the jury will be required to
“examine frank and shocking allegations of sexual abuse of a child . . . and
to examine equally shocking allegations of incest” against Defendant-Parnitzke. Distinguishing the sexual acts between
participants and the type of sexual act is not so complicated that a jury could
not distinguish the evidence and apply the law intelligently. The jury will be
required to examine shocking allegations of sexual abuse and incest. This is
not a ground for severance. The “shock value” does not prevent a jury from
applying the law intelligently. 
 
¶ 6.            
Furthermore, the court explained that the uncharged acts, complained of
by defendant, had a “limited purpose,” and the jury would be instructed that
they could not be used substantively against either defendant or Parnitzke.  The court also observed that defendant and
Parnitzke’s underlying relationship would remain
pertinent to both cases and be disclosed at trial, regardless of whether their
cases were severed.  Before the jury draw of the first trial,
defendant twice renewed his objections to joinder,
but the court reaffirmed its denial.  As noted, the first trial
ended in a hung jury. 
¶ 7.            
Before the second trial, the State moved for joinder.
 Parnitzke filed a renewed motion to sever.
 Defendant did not move to sever and expressly declined to join Parnitzke’s motion for severance but indicated he may want
to renew such motion at a later time.  The court granted joinder, citing reasons articulated in its earlier decision
to join the cases.  The second trial resulted in convictions of both
defendants; however, as noted above, a new trial was granted due to the
admission of improper evidence. 
¶ 8.            
On the first day of jury draw for the third trial, counsel for Parnitzke renewed the request for a separate trial,
acknowledging that her request had been consistently rejected but wanting to
preserve the issue despite the court’s ruling that it would be a joint trial. 
Again,
my client wishes an individual trial, not a joint trial.  We’ve asked for
that repeatedly.  The Court we understand has denied that, and we’re going
forward as a joint trial.  But don’t want to not preserve the issue and
bring it up before this trial. 
 
Defendant’s counsel then chimed
in, “The same here, Judge, on that issue.”  The court continued to
deny the motion to sever, and the trial resulted in convictions of two counts
of aggravated sexual assault against defendant. 
¶ 9.            
Following his trial, defendant filed a motion for a new trial based on,
among other things, the court’s decision not to sever trials.  The court
reasoned that defendant did not adequately petition the court for severance,
stating that:
  Defense
counsel’s comment, in the absence of a motion to that effect, is inadequate to
preserve the issue. [Defendant’s] position on severance was made known to the
Court on August 25, 2009, and after that date, he never filed a written motion
to sever defendants. A motion to sever defendants must be made by a proper
pre-trial motion or it is waived.  
 
¶ 10.         Rule
14 provides that “the court shall grant severance of the moving defendant
unless the court finds that there is no reasonable likelihood that that
defendant would be prejudiced by a joint trial.”  V.R.Cr.P.
14(b)(2)(D).  In order to adequately move for
severance, defendant must file a motion before trial, and if overruled,
defendant must renew the motion on the same grounds, before or at the close of
all evidence.  “Severance is waived if the motion is not made at the
appropriate time.”  See V.R.Cr.P. 14(b)(4).  The onus is on defendant to specify to the court
the reasons he opposes joinder and to show why there
is a reasonable likelihood that he would be prejudiced by a joint trial. 
See V.R.Cr.P. 14.  Here, because defendant
previously considered and rejected severance of defendants before the second
trial, the court could reasonably assume that a joint trial was part of his
strategy. 
¶ 11.           Defendant’s
vague attempt to preserve the issue for review fails.  Counsel's statement
was cryptic and scant, and sought no action from the
court as required by the rule.  See State v. Venman,
151 Vt. 561, 567, 564 A.2d 574, 578-79 (1989) (In severance-of-offenses cases,
“the burden is placed upon the defendant” to request
and “renew the motion” for severance, which permits “the defendant to
reevaluate” whether to proceed with a consolidated trial.  “Therefore,
failure to renew the motion constitutes a waiver of any right to
severance.”).  Merely stating, “[S]ame here,
Judge” does not constitute a motion to sever. 
¶ 12.         Further,
considering defendant’s shifting position—requesting to sever in the first
trial and not objecting to joinder in the second—it
is unclear what the “same here” references.  Such a nebulous request does
not preserve the issue for review.[1]
 Without a proper motion, the court should not have been expected to
divine a change in defendant's position.  Defendant failed to clearly request severance or note the
prejudice to him and, therefore, waived his right.  See V.R.Cr.P. 14(b)(4).  As a
result, we do not reach the merits of whether the trial court improperly joined
the cases.
¶
13.        
Defendant next contends that the trial court erred in denying his motion
for mistrial after codefendant’s sudden absence from trial.  On the third
day of trial, during the lunch recess, Parnitzke
reached an agreement with the State and pleaded no contest to a lesser charge.
 When the jury returned, the judge advised them that some issues had
arisen and trial would not resume for two days.  In the interim, defendant
moved for a mistrial and a new trial arguing: (1) the jury would consider
irrelevant and highly prejudicial information about Parnitzke
that would not have been admitted had defendant been tried alone; (2) Parnitzke’s change of plea resulted in a major shift in
defense strategy; (3) the jurors would draw impermissible conclusions from Parnitzke’s absence; and (4) cautionary instructions alone
would not protect defendant’s fair trial rights.  
¶
14.        
The court denied the motion, concluding Parnitzke’s
removal from the trial did not warrant the extreme response of a mistrial.
 When the jury returned, two days later, Parnitzke
was absent.  The judge explained that the cases had been “separated.”  Without
going into details, the judge stated that there are “several legal reasons why
this could have occurred” and the jury was “not to speculate about these
possible reasons.”  
¶
15.        
 Denial of a mistrial under circumstances such as those presented
here is reviewed for abuse of discretion only.  See United States v.
Merida, 765 F.2d 1205, 1220-21 (5th Cir. 1985).  And, “[g]iven the trial judge’s closeness to the scene,” denials of
mistrials after a codefendant pleads mid-trial are reversed “only under
extremely compelling circumstances.” United States v.
Butterworth, 511 F.3d 71, 76 (1st Cir. 2007) (quotation omitted). 
This Court uses the same standards.  State v. Messier, 2005 VT 98,
¶ 15, 178 Vt. 412, 885 A.2d 1193 (“The disposition of a motion for mistrial is
discretionary, and, as such, a claim of error can be supported only where the
trial court’s discretion was either totally withheld, or exercised on clearly
untenable or unreasonable grounds.”).  “The exercise of that discretion
always must be informed by the circumstances of the particular case.”  United States v. Sepulveda, 15 F.3d 1161, 1184 (1st
Cir. 1993).  Based on the trial judge’s superior vantage point, we
will not interfere with the disposition of such a motion unless the complaining
party can demonstrate a manifest abuse of that discretion.  See United
States v. Pierro, 32 F.3d 611, 617 (1st Cir.
1994), overruled on other grounds by United States v. Booker, 543 U.S.
220 (2005). 
¶
16.        
The “standard method” for handling a mid-trial plea change in a
multi-defendant criminal prosecution “is to (a) refrain from telling the jury
of the change of plea, and (b) instruct the jury that the absent defendant has
been withdrawn from the case for legally sufficient reasons and that the jury (i) should not speculate on why the absent defendant is no longer in the case and
(ii) should focus single-mindedly on whether the government has established,
beyond a reasonable doubt, the guilt of the defendant or defendants remaining
in the case, bearing in mind that in order to achieve a conviction of a
defendant the government must carry its burden of proof individually as to that
defendant.”  See United States v. Rodriguez, 205 F. Supp. 2d 411,
412-13 (E.D. Pa. 2002).  “Declaring a mistrial is a last resort, only to
be implemented if the taint is ineradicable”; that is, where curative
instructions cannot realistically mend the harm done by the mid-trial plea.
 Sepulveda, 15 F.3d at 1184; see Pierro,
32 F.3d at 617.
¶
17.        
The majority of the cases cited by defendant have arisen in the
particular context of conspiracy, where “[a] guilty plea entered by a
codefendant can be especially prejudicial.”  United
States v. Peterman, 841 F.2d 1474, 1480 (10th Cir. 1988) (quotation
omitted).  No conspiracy was charged in the case at
hand.  Here, the overlap of offenses charged against each defendant is not
such that any inkling of Parnitzke’s guilt would
automatically lead a jury to conclude defendant’s guilt, as it is well settled
that “the guilty plea of one defendant cannot serve as substantive evidence
against another defendant.”  Rodriguez, 205 F. Supp. 2d at 414; see
United States v. Baez, 703 F.2d 453, 455-56 (10th Cir. 1983)
(trial court’s reference to codefendants’ guilty plea for conspiracy to
distribute PCP was plain error).  This rule protects defendants from a jury’s temptation “to conclude that
if one defendant is guilty
of committing an offense, the other defendant is guilty as well.”  Peterman,
841 F.2d at 1480 (challenging admission of co-conspirators prior convictions);
see United States v. Miranda, 593 F.2d 590, 594 (5th Cir. 1979)
(“[A] defendant is entitled
to have the question of his guilt determined upon the evidence against him, not
on whether a codefendant or government witness has been convicted of the same
charge.”); Babb v. United States, 218 F.2d 538, 542 (5th Cir. 1955).
 “A guilty plea entered by a codefendant can be especially prejudicial if
the plea is made in connection with a conspiracy to which the remaining
defendants are charged.”  Peterman, 841 F.2d at 1480 (quoting United
States v. DeLucca, 630 F.2d 294, 298 (5th
Cir. 1980)).  “Due to the extreme and unfair prejudice suffered by
defendants in [coconspirator] situations, courts and prosecutors generally are
forbidden from mentioning that a codefendant has either pled guilty or been
convicted.”  United States v. Griffin, 778 F.2d 707, 710
(11th Cir. 1985) (finding that trial court abused its discretion in allowing
co-conspirators’ adjudication of guilt to be admitted into evidence).  
¶ 18.         Defendant
asserts that some or all of the jurors must have speculated, regardless of the
instructions to the contrary, that Parnitzke pleaded
guilty after the victim’s devastating testimony that her mother had allowed
many men to assault her while they were living in England, and that guilt of
the absent Parnitzke directly inculpated defendant.
 It is fair to say that a significant portion of the victim’s testimony
detailed accounts of Parnitzke’s long history of
abuse of her daughter, leaving defendant just another man Parnitzke
permitted to assault her child.  Defendant analogizes his case to Rodriguez,
a capital murder case where three defendants were tried together for
murders.  205 F. Supp. 2d 411.  The two
accused of actually carrying out the murders entered into a plea agreement
after six weeks of trial, leaving only the defendant, who stood accused of
hiring the first two to commit the crimes.  The judge in Rodriguez
granted defendant’s motion for a mistrial, positing that at least some members
of the jury, over the course of the several weeks the trial was expected to
last, would at some point surmise that “changes of plea constituted not merely
a possible, but perhaps the most probable, explanation for the departure from
the case” of the two other defendants.  Id. at
413.  Also, the prosecution’s presentation of the murder charges
against the two pleading defendants was keyed into the theory that the
defendant orchestrated the murders and hired the two defendants.  In other
words, the guilt of the two absent defendants was directly linked to the guilt
of the defendant Rodriguez.  Id. 
¶
19.        
We find the facts of the present case distinguishable.  The two cases
here were joined based on a common plan or scheme and because the offenses
charged were closely connected in time, place and occasion; yet, the behaviors
constituting the charges against each were distinct, as was the evidence
presented.[2]
 Moreover, unlike the situation presented in Rodriguez, the
potential for a prejudicial inference in this case was not wholly obvious.
 The court appropriately instructed the jury not to speculate as to why
the case against Parnitzke had been separated from defendant’s.  The court further told the jury not to
draw any conclusions from Parnitzke’s absence.
 The court’s explanation falls directly in line with established
procedures.  See Butterworth, 511 F.3d at 76;
Sepulveda, 15 F.3d at 1184-85.  While defendant suggests that more
evidence of abuse came in as a result of being tried jointly with Parnitzke, he fails to appreciate that the evidence to
which he refers was offered solely against Parnitzke. 
He fails to support his claim that he was prejudiced by Parnitzke’s
mid-trial absence or to show how the jury could have wrongly inferred his guilt
from codefendant’s absence.  We affirm the lower court’s decision to deny
the mistrial.
¶
20.        
As a final matter, defendant asserts that evidence of the victim’s diary
was improperly admitted at trial.  Discretionary rulings regarding the
admissibility of evidence are reviewed under an abuse-of-discretion standard.
 State v. Voorheis, 2004 VT 10, ¶ 20, 176
Vt. 265, 844 A.2d 794.  Prior to trial, defense
counsel sought to exclude from evidence notations in the victim’s diary which
she claimed represented a record of the abuse, arguing that such evidence would
constitute hearsay. The court ruled that the State would not be permitted to present
the substance of the diary entries but agreed that the victim could testify to
the fact that she kept the diary and wrote notes corresponding to the timing of
the sexual abuse. 
¶
21.        
At trial, in response to the State’s inquiry as to whether she ever
informed anyone of, or documented the alleged abuse, the victim stated, “I
didn’t like write it, but I used like little symbols or drawings . . . in
a diary” in order to protect the information from others.  The
defense then, on cross-examination, introduced the actual diary, apparently to
highlight the fact that there were no verbal descriptions of abuse or tally
marks, as the victim suggested during earlier interviews.  The
court noted that, in its closing, the defense argued persuasively that the
victim’s contradictory accounts undermined the value of the markings and the
victim’s credibility.  Defendant now argues that diary symbols are hearsay
and were impermissibly admitted under Vermont Rule of Evidence 801(d)(1)(B), as prior consistent statements.  However, the
court had ruled that the victim could testify only that she kept a diary, but
not as to the substance of the diary.  The court reasoned that if there
was impeachment on cross-examination suggesting the victim’s allegations were
recently fabricated, the State could then offer evidence of what was recorded
in the diary as a prior consistent statement.  Because it was the defense
that offered the diary, which the court noted was not strong evidence and was
in fact a double-edged sword, and that used the diary to impeach the victim’s
credibility as well as to show the victim’s bias towards defendant, we find no
abuse in admitting the evidence. [3]

Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 







[1]
 We are not advocating form over substance.  See generally, Venman, 151 Vt. at 565, 564 A.2d at 577 (defendant
preserved request to sever even though he referred to it as
sequestration).  But where, as here, defendant provides no express request
to sever or reason why the court should sever trials, we cannot craft one. 


[2]
 The victim did describe one instance where Partnizke
was performing oral sex on the victim while the victim performed oral sex on
defendant.  Though allegedly simultaneous, defendant’s culpability did not
require a corresponding reliance on Partnizke’s guilt
and vice versa.  The victim’s credibility as to one could be assessed
differently as to the other.  


[3] 
The State asserts that the defense failed to preserve the matter on appeal
based on its failure to object to the court’s ruling that the victim could
testify to the mere fact of the existence of the diary, without going to its
substance, but rather just responded, “Great” to the entire discussion.
 Because we find that defendant’s claim of error fails, we decline to
address the State’s preservation issue.



