State v. Amidon

2018 VT 99

State of Vermont v. Jeremy R. Amidon

No. 2016-354

Supreme Court of Vermont

March Term, 2018

September 7, 2018

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@vermont.gov 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.

On Appeal from Superior Court, Bennington Unit, Criminal Division

David A. Howard, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. SKOGLUND, J. Defendant appeals his conviction by jury of lewd or lascivious conduct with a child. He argues that the trial court should have granted his motion for a mistrial after the State asked prejudicial questions during voir dire that tainted the jury; that the court erroneously admitted evidence of his prior incarceration; and that the State was improperly permitted to impeach the defense's sole witness with a question concerning the molestation of her daughter. We affirm.

¶ 2. In October 2013, defendant was charged with a single count of lewd or lascivious conduct with a child, second offense, for touching the vaginal area of his daughter C.A. sometime between July 2005 and July 2007. Prior to trial the State notified the defense of its intent to introduce evidence of prior bad acts, including that defendant was physically and emotionally abusive toward C.A. and other family members and that she felt safe when he was in prison and became afraid when she learned he was being released. The State indicated that it was offering this evidence to explain why C.A. did not disclose the sexual abuse sooner. Defendant filed a motion in limine seeking to exclude the evidence on the grounds that it was irrelevant and prejudicial.

¶ 3. Following a hearing in August 2015, the court ruled that evidence of defendant's anger and possible physical abuse toward C.A. and other family members was relevant and admissible. It found that the probative value of the evidence outweighed any prejudicial effect, as the State had a reasonable need to explain why C.A.'s fear caused her to disclose defendant's act after several years of silence. The court held that the State did not have to wait for the defense to attack the witness for her delayed report, as a jury would naturally be concerned about the timing of the report. The court also ruled evidence of defendant's incarceration and release was admissible to explain why C.A. delayed in reporting and then finally did report, as "[i]t would be difficult for the jury to consider why the complainant suddenly had a fear of defendant when some years had passed without disclosure." The court concluded that the probative value of this evidence outweighed its prejudicial effect so long as proper jury instructions were given and the jury was not informed of the reason that defendant was incarcerated. However, it excluded the other evidence the State sought to introduce, including the facts underlying defendant's 2007 conviction for sexual assault on a minor and evidence of his alleged sexual assaults against other children.

¶ 4. Defendant was initially tried in January 2016, but the jury was unable to reach a verdict. A new jury was selected in May 2016. During voir dire, the State asked individual potential jurors about their prior jury experience and whether that experience had affected them in a way that they felt they could not be fair or impartial in defendant's case. The State then asked:

So of the folks that were on the jury, the—was there anything that came out in the newspaper after, that you read about the trial, that you were completely in disbelief that you didn't know that when you were in the trial, or that irked you that you didn't know that, or—so nothing about that process that—because the judge is going to instruct you to not read anything and not follow any newspaper, not to research this independently, and sometimes people are not happy about that, that they can't look up what happened, and then sometimes they hear things after that they just don't understand why they weren't told some of the things they read about. So nobody had that experience where you felt like this was not a fair and impartial jury process?

None of the potential jurors responded affirmatively.

¶ 5. The prosecutor went on to ask the jurors several questions on other topics. After the prosecutor concluded her voir dire, defense counsel objected to the prosecutor's questions about finding out information after the trial. The prosecutor responded that the questions were aimed at discovering whether members of the jury panel who had served on juries the previous month were frustrated by the process. The court overruled the objection, stating that the questioning "didn't indicate one way or another which—what they could have read, whether it could have been pro-defendant or pro-State. It was neutral questioning."

¶ 6. After jury selection but prior to trial, defendant moved for a mistrial, arguing that the jury had been irrevocably tainted by the prosecutor's questioning. He argued that the questions planted an idea in the minds of the jurors that prejudicial information was being withheld from them in this case, and a simple internet search would reveal that defendant had been previously convicted for sexual assault on a child. He argued that even if the jurors obeyed the court's standard instructions not to conduct their own outside research about defendant, the State had created a prejudicial suspicion that other information existed. The court ruled that it would take up the motion at the beginning of the trial, stating that "[u]nless it is shown by the required supplemental exam that a juror has actually obtained inappropriate information about defendant or the case, the court does not believe the questioning defendant objects to is sufficient for a mistrial."

¶ 7. On the first morning of trial, the court reiterated its determination that the questioning itself did not taint the jury. It went on to ask the jury if anyone had learned anything about defendant or the case since jury selection, and received no response. The jury was then sworn and the trial began.

¶ 8. The following facts were presented at trial. Defendant lived with his wife, Yvonne Pratt, and their five children in a three-bedroom mobile home in Woodford, Vermont, from 2004 to 2007. The boys slept in one bedroom, the girls in another, and defendant and Yvonne slept in the third. Yvonne worked a night shift. While she was at work, Fred Bessette, a friend of defendant, watched the children. He was paid by the State to look after the children because defendant was on medication and partially disabled. Defendant was usually sleeping or on his computer. Fred's wife Ida accompanied him when he was at defendant's home, but she did not have childcare duties and spent most of her time on another computer.

¶ 9. Yvonne, one of her sons, and her daughter C.A. testified that defendant only interacted with his children to discipline or yell at them. Defendant made the children stand in the corner for hours and lick paint off the wall. He also made them sit in the "invisible chair," which involved sitting with their backs against the wall and supporting their weight with their legs, and run laps around the mobile home park while he followed them in a vehicle. Yvonne did not intervene because defendant would become violent toward her in front of the children.

¶ 10. In early 2007, defendant went to prison in Kentucky. Yvonne visited him there a few times with the children, who did not want to go. She eventually ended her relationship with defendant. Around 2013, defendant was released from prison. Yvonne received some court documents indicating that defendant wanted visitation with the children. When she told C.A. that defendant wanted to have contact, C.A. cried and said she wasn't going to see him.

¶ 11. C.A. testified that she was scared when she learned that defendant was getting out of prison and wanted contact with her because he had touched her sexually when she was younger.She told her grandmother, who told Yvonne. C.A. refused to speak to Yvonne about defendant's act, but Yvonne told her that she needed to talk to somebody. C.A. eventually told the dean of students at her high school, who reported the conversation to the Department for Children and Families, which then interviewed C.A.

¶ 12. C.A. testified the lewd or lascivious conduct charged occurred when she went into defendant's bedroom to tell him that dinner was ready. She was wearing a nightgown and underwear. He was sitting on the bed, and his hand went under her underwear. Defendant told her that he would hurt her mother if she told anyone. She believed him because she had heard him threaten her mother before and because of the way he disciplined her and her siblings.

¶ 13. The jury returned a verdict of guilty. In September 2016, defendant was sentenced to serve four to six years. This appeal followed.

I.

¶ 14. The first issue before us is whether the trial court properly ruled that the prosecutor's questions during jury selection did not amount to a prejudicial extraneous influence on the jury sufficient for the court to declare a mistrial.¹ The decision whether to grant a new trial is a matter committed entirely to the discretion of the trial court. State v. Jewell, 150 Vt. 281, 284, 552 A.2d 790, 792 (1988). The court's decision will be upheld unless that discretion was abused or withheld. State v. McKeen, 165 Vt. 469, 472, 685 A.2d 1090, 1092 (1996).²

¶ 15. A criminal defendant is entitled to a fair trial by an impartial jury, "free of the suspicious...