1996-1998 VERMONT SUPREME COURT CRIMINAL LAW OPINIONS

PART I

CHAPTER 2: SEARCH AND SEIZURE

CURBSIDE GARBAGE
State v. Morris, No. 94-299 (March 22, 1996) (Johnson)
The Vermont Constitution's search and seizure provision, ch. I, article 11, forbids the warrantless search of secured opaque trash bags left at the curbside for garbage collection. The court refuses to follow the contrary fourth amendment rule of California v. Greenwood, 486 U.S. 35 (1988). Police can ordinarily seize curbside garbage without a warrant (and possibly without any particular level of suspicion) but they need a warrant before searching its contents.
In this case a search warrant for defendant's apartment was based in part on the illegally searched garbage (marijuana seeds) and in part on informant information. Without the seeds the informant information fails to state probable cause to search the apartment, because there was nothing to show the informant's credibility or the reliability of his/her information.
Justice Dooley dissents. Defendant should have taken the trash to the dump himself if he wanted to keep it private.

INVESTIGATIVE DETENTION - REQUEST TO SEARCH
State v. Hollister, No. 95-006 (March 22, 1996) (mem.)
A policeman, suspicious in a vague way, engaged a nineteen year old boy in conversation and smelled alcohol on his breath. The boy let him look in his knapsack, which was empty. The officer then asked the defendant if he had anything in his pocket, and the defendant produced marijuana baggies and a pipe. The district court suppressed. The supreme court reverses: there was no constitutional seizure when the officer first engaged the defendant in conversation (citing Florida v. Bostick, 501 U.S. 429 (1991)). After he smelled alcohol on the defendant's breath he had reasonable grounds for a Terry stop (for possessing alcoholic beverages), which entitled him to ask permission to "seek consent for a search related to the suspected crime." Johnson dissents: asking to see the contents of the knapsack might have revealed possession of alcohol but the contents of the defendant's pocket didn't have anything to do with the "suspected crime."

SEARCH WARRANT AFFIDAVIT - FACTUAL ERRORS - STALENESS
State v. Demers, No. 96-452 (Dec. 26, 1997) (Amestoy).
A search of a freezer for deer meat yielded marijuana instead. Game wardens took samples of deer blood from a field and the defendant's yard and sent the two samples to the FBI for DNA analysis. Having better things to do the FBI didn't report the "match" for four months, and it was six months before the search warrant issued. Held: the warrant affidavit stated probable cause; the police didn't conceal exculpatory facts; and the information wasn't stale because, "Daily life frequently involves freezing quantities of perishable food too abundant for consumption within a short time-frame. Once frozen, food can remain usable for months and even years into the future."

"PLAIN VIEW"
State v. Trudeau, No. 95-494 (July 26, 1996) (Allen)
Looking in a car with a flashlight, the officer saw an open beer can on the floor behind the driver's seat. As he was retrieving this can as evidence, he noticed a clear plastic baggie containing green "plantish material" partially exposed under the back seat.
The court reversed the trial court's order suppressing the marijuana, holding that it was lawfully observed and seized under the "plain view" doctrine. Justice Johnson dissented, characterizing the police officer's testimony as "incredible."

EXCLUSIONARY RULE - SEARCH INCIDENT TO INCARCERATION FOR SUMMARY CRIMINAL CONTEMPT
State v. Robinson, No. 95-556 (July 26, 1996) (Morse)
After interrupting his estranged wife's testimony during a family court proceeding, defendant started to leave the courtroom, contrary to the judge's order to remain seated, and he was restrained after a scuffle with the court officer. The judge held him in contempt and summarily sentenced him to 10 days, after which he was searched in a holding cell and found to be in possession of marijuana and a switchblade.
The court upheld the trial court's refusal to suppress the contraband, holding that evidence found in a search incident to incarceration for summary contempt is not subject to suppression, apparently regardless of the legality of the contempt finding.

REPACKAGED MARIJUANA
State v. Coburn, No. 95-537 (July 12, 1996)
Police at JFK airport seized and searched two suitcases after dogs had "alerted" to their contents, finding marijuana. The customs agents then repacked everything and sent it to Vermont, where state police again opened and repacked the suitcases, before delivering them to the defendant. The court affirms the denial of the motion to suppress:
1. The initial search was lawful as a border search: the suitcases had come in on a flight from Jamaica. The court refuses to judge the search by Vermont Constitutional standards, seeing the federal interest as paramount. After the customs search defendant no longer had a protected privacy interest in the suitcases, and the repacking and subsequent Vermont search therefore didn't violate his rights under the fourth amendment or article 11. The transfer from New York to Vermont, and from federal to state officials, wasn't constitutionally significant.
2. The court also rejects a separate challenge to the seizure of the suitcases. The feds waited three days before forwarding them to Vermont, and the Vermont state police retained them an additional two days. The court distinguishes the luggage detention United States v. Place, 462 U.S. 696 (1983), which was not based on probable cause. Here the police had probable cause and could retain the luggage indefinitely, as contraband and evidence of crime, without offending either constitution.

ROBOT VIDEO CAMERAS
State v. Costin, No. 96-624 (July 31, 1998) (Dooley)
By a 3-2 vote the court okays covert video surveillance on private property by a robot video camera. The land was remote country property, but it wasn't posted and the defendant hadn't taken any other affirmative steps (like fencing) to exclude the public, so the police could enter it without a warrant under the rule of State v. Kirchoff, 156 Vt. 1 (1991), and the majority holds that the same rule governs this kind of video surveillance. The camera didn't see anything that a regular "stake-out" wouldn't have seen (the result might be different for cameras with enhanced vision). The marijuana plot itself was not posted or protected (the result might have been different if the camera was looking into a protected area -- a fenced-in garden or the curtilage).
Justice Johnson writes a strong dissent, joined by Justice Morse, calling the tactic Orwellian. She sees "a qualitative difference between walking on to private property to verify a tip and setting up intensive covert surveillance there."

VEHICLE STOP - ANONYMOUS INFORMANT
State v. Lamb, No. 96-252 (July 31, 1998) (Morse)
In another 3-2 search and seizure case decided the same day as Costin the court okays a DUI traffic stop, based on an anonymous tip. Morse, who dissented in Costin, writes the majority and Dooley, who wrote the majority in Costin, dissents.
Somebody called the dispatcher to say that the defendant was leaving a house on Vaughn Road, drunk and upset, in a red car with a vinyl roof. The trooper saw the car at the foot of Vaughn Road and recognized the defendant, whom he had arrested before for DUI. He didn't observe anything indicating drunk driving. The majority finds this enough for a stop based on "reasonable suspicion," even though the tip was anonymous, relying on Alabama v. White, 496 U.S. 325 (1990), because the informant predicted the defendant's future behavior -- facts which wouldn't be known by the general public. Also there was an "element of urgency" in the report of an ongoing DUI similar to anonymous tips about people carrying deadly weapons. This is not to say "that virtually any stop for DUI will be upheld for any reason."
The dissent also relies on Alabama v. White, finding the tip here weaker because it didn't predict future behavior in a way which showed reliable inside information. "[T]he real holding of this case is that the corroboration deemed necessary in White is unnecessary here because defendant was accused of driving while intoxicated."

CONSENT - SCOPE OF CONSENT
State v. Grega, No. 96-106 (April 10, 1998) (Johnson)
The defendant was convicted of murdering his wife in a condominium near Mt. Snow. He consented to the search of the condominium and his car and the police later got a warrant for the same searches. Their first search was not challenged, but the defense claimed that the searches on the following days were illegal. The court affirms: a. Obtaining a warrant didn't "negate" Grega's consent. This wasn't a case where defendant had no choice but to consent because the police had a warrant anyway. b. The consent didn't "expire" once Grega became a suspect. He wasn't arrested or charged until all the searches had been completed. c. Nothing in the consent limited it to a particular day; it covered the searches on the two following days.

PLAIN VIEW
State v. Zele, No. 97-239 (July 10, 1998) (Amestoy)
Plain view observation of a "used waterbong" and the smell of marijuana, plus an anonymous tip that the defendant was dealing marijuana from an adjacent garage, supported a warrant to search both the apartment and the garage. The anonymous tip can be discounted; the other information was enough to state probable cause. A Franks v. Delaware claim -- that the officer lied about the bong being "used" -- failed as a matter of fact, since the court believed the cop over the defendant.

VEHICLE STOP - ARREST FOR DOMESTIC ASSAULT
State v. Remy, No. 97-152 (April 17, 1998) (Morse)
Remy and her friend Palmer were driving in Remy's car. They came across Woodie, Palmer's former husband. Palmer gets out and punches Woodie in the mouth. Woodie calls the police, describing the car. The police stop the car, detect an odor of alcohol emanating from Remy, and process her for DUI. Held: The police had probable cause to charge Palmer with domestic assault. They could stop the car she was riding in, to cite her. V.R.Cr.P.3(c)(1). The vehicle stop was therefore lawful and the smell of alcohol on Remy justified the subsequent DUI processing.

KNOCK AND ANNOUNCE - EMPTY HOUSES
State v. Meyer, No. 97-264 (Feb. 20, 1998) (mem.)
There is no special rule under the Fourth Amendment which prohibits "a search of a home pursuant to a valid warrant if the homeowner is not present, absent exigent circumstances." The U.S. Supreme Court's "knock and announce" decision (Arkansas v. Wilson, 514 U.S. 927 (1995) doesn't imply such a rule.

WARRANT - ENTRY OF DEFENDANT'S PROPERTY TO CONFIRM INFORMANT'S TIP - FAILURE TO INCLUDE EXCULPATORY INFORMATION IN WARRANT AFFIDAVIT - NEXUS BETWEEN MARIJUANA AND DEFENDANT'S RESIDENCE
State v. Hall, No. 97-160 (September 11, 1998)(Skoglund)
In this challenge to a search pursuant to a warrant, the Court held (a) it did not violate Article 11 for the police to enter an unposted wooded area behind defendant's house, and the police did not invade defendant's curtilage (b) omission from the affidavit of the fact that the officer failed to see a growing marijuana plant on his initial search did not undermine the reliability of the informant since the officer looked in the wrong place and, upon a second search in the company of the informant, saw the plant (c) observation of a cultivated marijuana plant on one's lawn "supports an inference that materials for the manufacture and cultivation of marijuana exist at the residence," and, combined with the informant's observation of a bong in the house, established probable cause to believe that evidence of a crime would be found in the house.

CHAPTER 3: CONFESSIONS

STATE SELF-INCRIMINATION - USE IMMUNITY
State v. Ely, No. 966-587 (Dec. 19, 1997) (Dooley)
The court rejects an invitation to join six states which have held that their state constitutions require a grant of full transactional immunity before a witness can be compelled to give self-incriminating testimony. Use and "derivative use" immunity is generally good enough, the court says, but there must be strict procedures to assure that the prosecution doesn't get any indirect benefits from the immunized testimony (see slip op. 12-14), to wit: (1) The state has to prove beyond a reasonable doubt that its evidence isn't derived from immunized testimony (a requirement of the statute, 12 V.S.A. § 1664). "[B]are assertions of nonuse" aren't enough. (2) The state should usually have to "can" the evidence it has prior to the compelled testimony. (3) "Derivative use" includes non-evidentiary use, such as focusing the investigation, etc. (4) It covers use by police as well as prosecutor: "any evidence that would not have been available in the form provided at trial, but for the immunized testimony of the defendant, cannot be used...." (5) In some cases the judge has discretion to refuse to require testimony without transactional immunity.
Note that most of these protections aren't automatic: the witness' lawyer should ask for a "canning" order and any other protections against surreptitious (or unintentional) derivative use (e.g., a "firewall" in the prosecutor's office or at the police station segregating the case against the witness from the case in which his or her testimony can be used.)

See also Burlington Police Officers' Assoc. v. Burlington, No. 94-665 (Oct. 14, 1996) (mem.) (not reaching the immunity question).

MIRANDA - INTERROGATION
State v. Fitzgerald, No. 94-650 (July 5, 1996)
After being taken into custody in a homicide investigation the defendant asked the policeman where Ricky was. The officer responded (approximately), "He's in Texas, why?" Defendant replied: "That's good, he had nothing to do with it." The court holds that the implied admission was not the product of interrogation.

ADMISSIONS TO POLICE INFORMANT
State v. Lang, No. 95-447 (Sept. 23, 1997) (mem.)
In this first degree murder case, the court held that taped statements by the defendant to an informant, made prior to the filing of a formal charge against the defendant, were not admitted in violation of the Sixth Amendment, the Vermont public defender statutes, or Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility.

MIRANDA - PUBLIC DEFENDER STATUTE
State v. Jeffreys, No. 95-024 (June 27, 1996) (mem.)
The police questioned the defendant at his house (which they were searching), in a cruiser, and at the police station. The court finds two of his statements suppressible and two others not. A statement at the house, made after the defendant said he didn't want to talk, was admissible because he wasn't in custody and there is no right to "cut off" non-custodial interrogation. In the cruiser the defendant was warned, made an oral waiver and confessed, after which he signed a written waiver form and confessed again. Both these statements were suppressed, the first because the waiver wasn't in writing (as required by the public defender statute) and the second because the written form didn't indicate a waiver (there was no indication of defendant's response to the waiver questions, e.g., "Having these rights in mind do you wish to talk to me now?") At the stationhouse, he approached the police and said he wanted to clarify his earlier statements, and proceeded to confess yet again. The court says this last one is admissible as a "volunteered" statement, notwithstanding the earlier violations, citing Oregon v. Elstad, 470 U.S. 298 (1985).

MIRANDA - CUSTODY - PSI INTERVIEW
State v. Cyr, No. 97-450 (Jan. 29, 1998) (Morse)
In an aggravated domestic assault appeal the court rejects self-incrimination claims in connection with sentencing:
1. The defense moved to suppress statements made to a probation officer at the PSI interview, on the ground that no Miranda warnings were given. No evidence indicated that the defendant was "in custody" -- and the court cites with apparent approval cases holding that PSI interviews don't require Miranda warnings. Questioning after the defendant asserts a right to counsel or to silence, as in State v. Cox, 147 Vt. 421 (1986), is different, but the rights aren't "self-executing."
2. The rejects a claim that the sentencing court should have given the defendant immunity for statements made in his allocution, apparently on harmless error grounds (he had already given his version of events to the probation officer).

MIRANDA - PROOF OF ASSERTION OF RIGHTS
State v. Lund, No. 96-056 (Jan. 16, 1998) (Johnson)
No mistrial was required when a police officer testified that the defendant told him he had talked to a lawyer and wasn't going to give a statement.

ASSERTION OF RIGHT TO COUNSEL
State v. LaCourse, No. 97-108 (May 8, 1998) (Amestoy)
A police officer's testified that during a phone conversation the defendant told him, "if those were the type of questions that I was going to ask that I should talk to a lawyer." This wasn't a comment on defendant's assertion of his right to remain silent, because the defendant wasn't in custody. (The court seems to be assuming that the right against self-incrimination is limited, like the Miranda rights, to people in police custody.)

MIRANDA - QUESTIONING PREPARATORY TO BREATH TEST
State v. Blouin, No. 97-053 (June 26, 1998) (Amestoy)
In a DUI case the trial judge excluded the defendant's response to a question during breath testing, and after he had asserted his Miranda rights -- whether he had "burped, belched or vomited" in the last 15 minutes. The state took an interlocutory appeal and the Supreme Court reversed: The "burp question" wasn't "interrogation" but rather an adjunct to the request to perform a breath test; it wasn't designed to get an incriminating response but rather "to help assure the accuracy of the test...." Skoglund dissents on this point, arguing that the burp question is purely investigative and designed to help the state prove intoxication.

PART II

CHAPTER 5: INITIATION OF THE CHARGE

INFORMATIONS - AMENDMENT
State v. Church, No. 96-351 (Jan. 21, 1998) (mem.)
The state's L&L information failed to allege that the act was performed "with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires" of the defendant or the child. The state amended it at the trial to include this language and the Court says this amendment was proper under V.R.Cr.P. 7(d), so long as the defendant didn't claim prejudice.
INFORMATIONS - TIME ALLEGATION
State v. Hicks, No. 96-504 (March 18, 1998) (mem.)
The state alleged child sexual abuse some time between January and August, 1994. The court holds that it didn't have to specify the time more narrowly, despite testimony of one of the two complainants that the crimes occurred between April and June, 1994. The state should make its charges as specific as it can, but the April-June testimony was contradicted by other evidence. The defendant wasn't prejudiced by the January-August allegations, except by losing his alibi defense (which he had no "vested interest" in).

INFORMATIONS - DUPLICITY
State v. Cyr, No. 97-450 (Jan. 29, 1998) (Morse)
The information initially charged that the defendant "attempt[ed] to cause or willfully or recklessly caused" serious bodily injury. The defense said this was too vague and the state should have to "elect"; in response the state filed an amended information alleging a variety of mental states and consequences -- six alternative theories of guilt for the single charge. Over objection the judge charged all of them, together with a lesser-included offense for each -- twelve crimes in all. The supreme court says the state's amendment didn't charge an "additional or different offense" in violation of V.R.Cr.P. 7(d). The initial information charged only one crime, committed by alternative means. The amendment simply clarified the alternative means.

INQUESTS - IMMUNITY
State v. Ely, No. 966-587 (Dec. 19, 1997) (Dooley) (See CONFESSIONS).

CHAPTER 6: THE RIGHTS TO COUNSEL AND SELF-REPRESENTATION

PAYMENT FOR PRO SE DEFENDANTS' EXPENSES
State v. Handson, No. 94-634 (Dec. 13, 1996) (Johnson, J.)
A trial court can order the Defender General's office to pay expenses of a pro se defendant, but the court must give serious consideration to whether the costs were truly necessary. The supreme court refused to order the Defender General to reimburse the Department of Corrections for a $1.75 surcharge per call for inmates on calls relating to their defense.

ASSIGNMENT OF COUNSEL - ELIGIBILITY AND COPAYMENT
State v. Bailey, No. 93-300 (June 27, 1996) (mem.).
Income of household members can be taken into account in connection with a copayment order but it is not a factor in the initial determination of eligibility.

CIVIL CONTEMPT - ABILITY TO PAY - RIGHT TO COUNSEL - ASSIGNMENT
Russell v. Armitage, No. 95-364 (May 2, 1997) (Gibson)
The defendant was held in contempt by the family court, for failure to pay child support arrearages, but the judge allowed him to "purge" the contempt by going to the local Voc. Rehab. office, and taking various steps to settle a worker's comp. case (see his doctor, etc.). When he failed to abide by these conditions the court ordered him to jail. The supreme court affirms. Courts must assign counsel before jailing someone for civil contempt (reaffirming Choiniere v. Brooks, 163 Vt. 625 (1995) (mem.)) but it was enough in this case to assign counsel at the "purge" hearing, because the judge allowed relitigation of all questions.
The right to counsel is not provided by the public defender statute, which applies only to criminal and quasi-criminal cases. Nevertheless, courts have "inherent" power to assign constitutionally necessary counsel, which can include private counsel as well as public defenders. Public defenders shouldn't be "routinely" assigned. "More than an occasional case would unduly interfere with their statutory caseload...."
Justice Morse, concurring, believes that assignment of counsel should be discretionary with the trial courts, and that public defenders should bear the burden.

INEFFECTIVE ASSISTANCE
In re Miller, No. 96-586 (March 5, 1998) (mem.)
The court rejects a claim of ineffective assistance of counsel in a PCR stemming from a murder trial. The trial lawyers' decision not to cross-examine a prosecution witness had a tactical justification (avoiding a possible in-court identification on redirect). Their decision not to file a motion in limine (to exclude this witness' claim that he had been threatened) wasn't unreasonable because the motion wouldn't have been granted.

INEFFECTIVE ASSISTANCE
State v. Lund, No. 96-056 (Jan. 16, 1998) (Johnson)
In a child sexual assault case the Court refuses to consider a series of ineffective assistance of counsel claims on direct appeal; the defendant has to raise them by PCR.

INEFFECTIVE ASSISTANCE
In re Wilkinson, No. 97-125 (April 29, 1998) (mem.)
A PCR petitioner and an attorney who wouldn't take no for an answer finally win a claim of ineffective assistance of counsel. The defense lawyer in a child sex abuse case failed to object to an obvious Catsam error, and made other blunders. On direct appeal the supreme court found waiver and no plain error. The first PCR trial ended in judgment for the state, but the supreme court reversed, holding that the trial judge should not have been allowed to testify to the fairness of his own trial. In re Wilkinson, 165 Vt. 183 (1996). The second PCR hearing went for the defendant. The state appealed and the supreme court now affirms. The PCR court's finding of "prejudice" (i.e., that but for counsel's errors there was a reasonable probability the result would have been different) wasn't clearly erroneous, and wasn't inconsistent with the no-plain-error decision on the first appeal.

INEFFECTIVE ASSISTANCE
In re Hemmingway, No. 96-565 (June 5, 1998) (published mem.)
Affirming denial of a PCR: The defense lawyers weren't ineffective in arranging the plea agreement, in not pursuing incompetency, and in not raising an insanity defense.

LAWYER-CLIENT CONFLICT - RIGHT TO CONTINUANCE
State v. Hicks, No. 96-504 (March 18, 1998) (mem.)
Hicks wanted to fire his lawyer on the morning of trial, and asked for a continuance to hire a new one. The judge would have allowed him to proceed pro se but denied a continuance. The supreme court finds no abuse of discretion, in part because the conflict between lawyer and client wasn't so serious as to prevent an adequate defense. See State v. Lund, No. 96-056 (Jan. 16, 1998), for a similar holding.

CONFLICT OF INTEREST - EX DEFENSE LAWYER IN PROSECUTOR'S OFFICE
State v. Mears, No. 98-252 (Nov. 24, 1998) (mem.)
Defense counsel's partner took a job with the Attorney General's office, and the court asks for a better record before deciding whether the A.G. is disqualified from the case. Some jurisdictions require disqualification while others allow the prosecutor to continue if the case is adequately "screened" from the former defense lawyer, but it's the state's "heavy burden" to show "that the prosecutor who previously represented the defendant is totally screened from the prosecution against the defendant." The court remanded the case for a record on screening, but the A.G.'s office subsequently bowed out on its own.

MOTION TO WITHDRAW - APPEALABILITY
State v. Powell, No. 98-303 (Dec. 21, 1998)
An order denying a lawyer's motion to withdraw is not a final appealable order (it may be reviewable as an interlocutory appeal).

CHAPTER 7: BAIL

PREVENTIVE DETENTION - RIGHT TO A HEARING
State v. Bickel, No. 97-214 (June 17, 1997) (Dooley)
The defendant appeared pursuant to citation and the court held him without bail under § 7553a on the basis of the police affidavits, ordering an evidentiary hearing for a week later. Justice Dooley affirms, holding that a defendant can be detained temporarily, on probable cause, pending an evidentiary hearing, so long as the hearing is scheduled "as soon as reasonably possible." On the record that was given him he couldn't decide if a week's delay was too long.

PREVENTIVE DETENTION
State v. Plant, No. 96-455 (Oct. 2, 1996) (Morse)
The court upholds an order holding the defendant without bail under 13 V.S.A. § 7553a, finding enough evidence that no condition of release would prevent future acts of violence.

BAIL FOR MATERIAL WITNESS
State v. Ely, No. 98-451 (Oct. 9, 1998) (Dooley)
A material witness who is held in lieu of bail does not have a right to appeal to a single justice of the supreme court under 13 V.S.A. § 7556, which applies only to defendants. Detained witnesses must proceed by petition for extraordinary relief, under V.R.A.P. 21(b), to the full court.

BAIL - PREVENTIVE DETENTION
State v. Gardner, No. 97-520 (Jan. 15, 1998) (mem.)
The Court affirms a hold-without-bail order in a DUI case. The defendant was charged with felony DUI as a repeat offender, and the new felony served as the predicate for a habitual offender charge, which carries a life sentence. The court holds that this "double enhancement" is permissible and that the defendant can be denied bail under 13 V.S.A. § 7553 (no right to bail for person charged with offense punishable by life imprisonment).
A hold-without-bail order cannot be punitive and "cannot be excessive in relation to the regulatory goal...." The trial judge made a finding that release on bail would pose a danger to the public in light of the defendant's long DUI record. The Supreme Court says this finding is supported by the record, and makes clear that it's the defendant's burden to show otherwise (bail can be denied unless the court is "fully convinced" that the defendant will obey conditions of release).

CHAPTER 8: COMPETENCY TO STAND TRIAL

RIGHT TO COMPETENCY HEARING
State v. Davis, No. 95-090 (June 21, 1996)
The court was under no duty to hold a competency hearing when the defendant's lawyer stipulated to a psychiatric evaluation which found him competent. Subsequent developments - entry of a new attorney in the case who expressed concerns about competency; defendant's refusal to cooperate with a "mental health screener" and his request to be absent from the courtroom during the complainant's testimony - also didn't require a hearing, because none of these things raised reasonable doubts about competency.

RIGHT TO COMPETENCY HEARING
In re Hemmingway, No. 96-565 (June 5, 1998) (published mem.)
Affirming denial of a PCR: The trial court adequately resolved the competency issue, after an evaluation reported defendant competent and he and his lawyers agreed that he was competent. Unlike the situation in State v. Pollard, 163 Vt. 199 (1995) his behavior in court seemed rational and in line with the doctor's opinion.

PART III

CHAPTER 12: SPEEDY TRIAL

SPEEDY TRIAL
State v. Turgeon, No. 94-683 (March 8, 1996) (Morse)
The court rejects a claim that a seven month delay violated the right to a speedy trial. The witnesses the defendant said he lost because of the delay wouldn't have helped him.

CHAPTER 13: DOUBLE JEOPARDY

DOUBLE PUNISHMENT - LESSER INCLUDED OFFENSES
State v. Grega, No. 96-106 (April 10, 1998) (Johnson)
The court affirms defendant's aggravated murder conviction but vacates a second conviction for aggravated sexual assault, on double jeopardy grounds: The defendant was convicted of aggravated murder under 13 V.S.A. § 2311(a)(8): "The murder was committed in perpetrating or attempting to perpetrate sexual assault..." Aggravated sexual assault is a lesser-included offense of this crime. As a matter of double jeopardy law, this raises a presumption that the legislature didn't intend double punishment, and nothing in the legislative history indicates a contrary intent. (Note that if Grega had only been charged with first or second degree murder, use of the sexual assault as an aggravating sentencing factor under § 2303(c) probably wouldn't have precluded a separate sexual assault sentence.)

TWO SENTENCES FOR ONE ACT
State v. Ritter, No. 96-288 (April 10, 1998) (mem.)
A person is guilty of second degree aggravated domestic assault if he assaults the victim in violation of an abuse prevention order (13 V.S.A. § 1044(a)(1)) or if he's been previously convicted of domestic assault (§ 1044(a)(2)). Defendant's assault on his girlfriend satisfied both subsections, so the state charged both and the court imposed consecutive sentences. The supreme court vacates one of the sentences. Unlike the two crimes in Grega the two subsections of § 1044(a) don't involve lesser included offenses, so there's no presumption against cumulative punishments, but the court thinks that the legislature didn't intend cumulative sentences for a single act: "§ 1044(a)(1) and (2) define alternative ways of committing second-degree aggravated domestic assault, rather than creating two separate offenses."

HARSHER SENTENCE ON RETRIAL
State v. Turgeon, No. 94-683 (March 8, 1996) (Morse) (See SENTENCING)

HARSHER SENTENCE ON PROBATION REVOCATION
State v. Draper, No. 97-055 (April 15, 1998) (mem.)
(See PROBATION AND PROBATION REVOCATION)

CONVICTION OF LESSER INCLUDED AFTER DISMISSAL OF GREATER
State v. Hatcher, No. 95-279 (Oct. 24, 1997) (Morse)
In affirming a second degree murder conviction, the court held that it was not a double jeopardy violation for the trial court to dismiss the original charge of first degree murder for insufficient evidence and permit the trial to continue on the lesser included offense of second degree murder.

ISSUE AND CLAIM PRECLUSION
State v. Dann and Wurzberger, Nos. 96-178 & 96-179 (Aug. 8, 1997) (Dooley)
1. In a prosecution of a store owner for selling and possessing fireworks the defense argued that the case was barred by "claim preclusion," because courts had thrown out two similar prosecutions in 1987 and 1992, on the ground that the fireworks statute was vague and overbroad. The supreme court says no: even if the doctrine of claim preclusion (a.k.a. res judicata) applies to criminal cases and not exclusively to civil cases, it doesn't apply here because the "subject matter" of new case - fireworks sales in 1994 - wasn't the same as the subject matter of the earlier cases.
2. Nor does the narrower doctrine of "issue preclusion" (a.k.a. collateral estoppel) apply. Issue preclusion clearly does apply in at least some criminal cases, but the precluded party must have had a "full and fair" opportunity to litigate the issue in the prior proceeding. The court thinks the state didn't have one, given its "limited ability" to appeal misdemeanor cases; the court even doubts whether issue preclusion should apply to misdemeanors at all because "[t]he State's incentive to ligate misdemeanor cases is finite...."

ISSUE AND CLAIM PRECLUSION
State v. Pollander, No. 966-387 (Dec. 5, 1997) (Amestoy)
The defendant's acquittal on DUI charges doesn't preclude the state from claiming in a civil license suspension proceeding that his BAC was over .08%. The defendant raised two defenses to the criminal charges: that he didn't drive with a BAC over .08%, and that his driving was justified by necessity. Because the general verdict of acquittal could have been based on either theory, the criminal case didn't "resolve" the BAC issue. Also, because the state has an easier burden of proof in civil suspension cases, it wouldn't be fair to find preclusion on the basis of the criminal acquittal.

CHAPTER 16: VAGUENESS AND OVERBREADTH

DISORDERLY CONDUCT - FIGHTING WORDS
State v. Read, No. 95-023 (March 22, 1996) (Gibson)
13 V.S.A. § 1026(3) -- the section of the disorderly conduct statute which makes it a crime to "use abusive language" with intent "to cause public inconvenience or recklessly creating a risk thereof" -- survives a first amendment challenge by a 3-2 vote. The statute, the majority holds, punishes only "fighting words" and this narrowing construction, together with the mens rea requirement (intent to cause public inconvenience), saves it from the overbreadth/vagueness challenge. The defendant's words were directed at a police officer who was trained not to respond violently, but the legislature didn't intend to make an exception for words directed at the police. The court sees no reason why the Vermont Constitutional free speech provision should be broader than the first amendment in this case.
Justice Morse dissents, seeing the "fighting words" doctrine as "an archaic relic."
DISORDERLY CONDUCT - FIGHTING WORDS - FALSE IMPRISONMENT - POLICE IMMUNITY
Long v. L'Esperance, No. 96-082 (July 11, 1997) (Johnson)
The plaintiff was stopped at a DUI roadblock and had to wait on line fifteen minutes. When he got to the head of the line, he said something with the word "fucking" in it to the state trooper (L'Esperance) and ended up getting arrested for disorderly conduct. He sued for unlawful arrest, false imprisonment, etc. The trial court granted summary judgment for L'Esperance, but the supreme court reverses. L'Esperance could only claim immunity for his arrest if he acted in "good faith." Police can't arrest for constitutionally protected speech. Abusive words violate the disorderly conduct statute only if they are "fighting" words (i.e. "tend to incite an immediate breach of the peace") or obscene, and the plaintiff's "fuck you" was neither.

VAPO - HARASSMENT
State v. Goyette, No. 96-067 (Feb. 28, 1997 (Johnson, J.)
The court reverses a VAPO conviction where the trial court's jury instructions defined "harass" as engaging in acts which trouble, worry, torment, disturb or threaten another. The definition was too broad, encompassing any conduct which simply caused disagreement. Additionally, the instructions permitted conviction without jury unanimity where the jurors could choose from one of six acts alleged without any requirement of unanimity.

CHAPTER 20: DISQUALIFICATION OF JUDGES AND PROSECUTORS

JUDGE MARRIED TO POLICE OFFICER
State v. Lincoln, No. 96-078 (May 15, 1996) (mem.)
In a follow-up to State v. Putnam, 7 Vt.L.W 6 (1996) the court holds that Judge DiMauro should have disqualified herself in a case where a state police officer, who had supervisory powers over the judge's husband, was slated to be a witness.

JUDGE'S FRIENDSHIP WITH PROSECUTOR
State v. Dann and Wurzberger, Nos. 96-178 & 96-179 (Aug. 8, 1997) (Dooley)
Judge DiMauro didn't have to disqualify herself on the ground of being a "good friend" of the Windham state's attorney.

JUDGE'S EXPOSURE TO CASE IN PRIOR PROCEEDINGS
State v. Davis, No. 95-090 (June 21, 1996)
The trial judge didn't have to disqualify himself simply because he had presided over an aborted change-of-plea proceeding, or because privileged information from a competency evaluation found its way into the PSI.

PROSECUTOR'S CONFLICT OF INTEREST
State v. Crepeault, No. 96-523 (Oct. 31. 1997) (Morse)
The court slammed the prosecutor for a conflict of interest since her husband (who was also her deputy) had represented the defendant in a CHINS proceeding.

WAIVER BY UNTIMELY MOTION TO DISQUALIFY
In re Miller, No. 96-586 (June 11, 1998) (published mem.)
After losing his appeal from the denial of a PCR the defendant moved to disqualify the entire court -- Amestoy because he represented the state in an earlier stage of the case; Skoglund and Johnson, because they were in the AG's office at the time, and Morse and Dooley, because they were tainted by sitting on the case with the other three. The court denies the motion as untimely. Defense counsel said he didn't know about the AG's participation in the case until after the decision, but the court says it was common knowledge, and litigants must exercise due diligence. The litigant must show "good cause" for not moving earlier.

DISQUALIFICATION OF PANEL MEMBER - EFFECT ON PANEL DECISION
State v. Lund, No. 96-56 (June 15, 1998) (published mem.)
Justice Amestoy disqualified himself from this case after participating in the decision, but the court says the decision can stand since his vote was "mere surplusage." Justice Dooley concurs: the court is a deliberative body and sometimes a judge counts for more than his or her vote, but Dooley doesn't think that Amestoy did in this case.

CHAPTER 21: JOINDER AND SEVERANCE

SEVERANCE - "SINGLE SCHEME OR PLAN"
State v. Labounty, No. 96-180 (April 17, 1998) (Morse)
Labounty was convicted of two counts of sexual assault, for having oral sex with two girls at his wife's home daycare.
1. A motion to sever the two counts was properly denied. Defendant had no right to severance, because the two crimes were part of a "single scheme or plan" (V.R.Cr.P. 8(a)(2)), even though they were separated by as much as nine months.
2. Even crimes which are part of the same scheme must be severed if it's necessary to a "fair determination" of the charges (V.R.Cr.P. 14(b)(1)(B)), but that wasn't the case here, in part because each crime would be admissible under V.R.E. 404(b) in a trial of the other, to show a common scheme or plan. (But doesn't this mean that severance will never be necessary to fair determination of two charges which are part of the same scheme or plan?)
A preservation point: It's not enough to simply renew a motion for severance at the close of the evidence. The defendant has to point out how the potential for prejudice has actually panned out.

CHAPTER 24: DISCOVERY

REQUIRED RECORDS
State v. Gomes, No. 96-123 (Aug. 6, 1996) mem.
This is Gomes II. In Gomes I (State v. Gomes, 162 Vt. 319 (1994)) the court reversed and remanded defendant's convictions for L&L for a determination whether lack of access to day care attendance records had prejudiced the defendant. On remand, the district court ruled that it could not comply with the court's order because the records had never been maintained. The regulation that the supreme court had relied on as a "required record" to reverse the first time had not actually been in effect, which the court now says was an error of fact. Other record keeping requirements pursuant to a federal meals subsidy program did not require records of the names of the children and did not apply here. The court reinstates the convictions.

SRS RECORDS - PRIVILEGE
State v. Ross, et al., No. 96-306 (June 10, 1997) (mem.)
In an SRS appeal the court affirms a broad disclosure order, ordering SRS to turn over pertinent case files to the prosecutor who would review them and release discoverable material to the defendant, along with notice of any material being withheld. The defendant could then seek in camera review of the withheld materials. The court says this procedure doesn't violate any confidentiality rules.

NOTICE OF WITNESSES - SANCTIONS
State v. Lund, No. 96-056 (Jan. 16, 1998) (Johnson)
No error in refusing to let the defendant impeach the complainant with evidence that another allegation she made against the defendant may have been a lie. The defendant hadn't given notice of the witness who would give this evidence, and the evidence wasn't so probative that the court had to overlook this failure on constitutional grounds (distinguishing State v. Passino, 161 Vt. 515 (1994).

TAPED DEPOSITIONS
State v. Batchelder, No. 96-125 (July 5, 1996)
The defense has a right under the discovery rules to tape-recorded depositions. A judge can require stenographic recording only "to prevent abuse" in a particular case, and not on the ground that tape recordings are generally less reliable than stenographers. If a party wants stenographic recording in addition to the tape he/she/it can arrange and pay for it.

RAPE SHIELD LAW - DEPOSITIONS
State v. Roya, No. 97-078 (Jan. 6, 1998) (mem.)
The trial judge allowed the defense to ask a sexual assault complainant at her deposition about prior sexual conduct, notwithstanding 13 V.S.A. § 3255(c), which prohibits such questions. The state appealed and the supreme court reversed, rejecting the defendant's claim that the statute violated his rights to confrontation and due process. The restriction doesn't violate the confrontation clause, which is a trial safeguard and does not apply to pretrial discovery depositions. Although a restriction on pretrial discovery could violate federal due process, the defendant has to show how the information would be relevant, and why he can't get it from an unprivileged source. The defendant's generic showing here (the prior sexual conduct would show context and provide a motive to falsify) wasn't good enough.

EXCLUSION OF DEFENSE WITNESS
State v. Cameron, No. 97-046 (October 16, 1998)(Johnson)
It was not error to exclude two defense witnesses as untimely disclosed and because their testimony did not directly connect a third party with the crime charged

DISCOVERY - PREJUDICE
State v. Flanigan, No. 97-355 (Oct. 23, 1998) (mem.)
The state's failure to tell the defense that the complaining witness had two criminal convictions until after she had finished testifying was a violation of V.R.Cr.P. 16(a) but it didn't require a mistrial or any other curative action by the court: the defense could have recalled the witness and impeached her with her record.

LOST EVIDENCE - SANCTIONS
State v. Devine, No. 96-482 (May 22, 1998) (mem.)
The state's destruction of defendant's car, in a C&N case, which deprived him of a chance to perform tests which might have established its speed at the time of the collision, was sanctionable under State v. Delisle, 162 Vt. 293, 310 (1994), but the trial court had discretion not to impose any sanction. The state didn't act in bad faith, and the defendant presented a weak case of prejudice.

PART IV

CHAPTER 27: SELECTING AND EMPANELING THE JURY

PRETRIAL PUBLICITY - CHANGE OF VENUE
State v. Billado, No. 95-361 (Oct. 2, 1996) (mem.)
A deputy sheriff charged with vandalizing a car was not entitled to a change of venue due to pretrial publicity. The fact that a prospective juror came to court with a newspaper with a headline about financial problems in the sheriff's office didn't require an order either dismissing the juror or striking the venire.

STIPULATED ELEMENTS - JURY WAIVER
State v. Loveland, No. 95-136 (Aug. 9, 1996) (Dooley)
In a child sexual assault case counsel stipulated, and the court instructed, that the elements of nonmarriage and the complainant's age had been proven. The supreme court rejects an argument that such a stipulation constitutes a waiver of the right to a jury trial on the conceded elements (which would have required the defendant's personal approval).

JURY SELECTION - CRIMINAL RECORDS OF POTENTIAL JURORS-
JURY BIAS - JUROR'S RELATIONSHIP TO WITNESS - CHANGE OF VENUE
State v. Grega, No. 96-106 (April 10, 1998) (Johnson)
The court affirms a conviction for aggravated murder, rejecting claims of error at jury selection:
1. The state refused to disclose its criminal record checks of potential jurors and the judge (DiMauro) refused to order it to. The supreme court doesn't decide whether the defense has a right to this material (citing a decision which says it does), because the defendant "made no showing that he was prejudiced" by the nondisclosure. (Was Judge DiMauro right or wrong? What if she does it again? How should the defendant show prejudice?)
2. No error in refusing to remove a juror who was a patient of the doctor who examined the victim's body. The juror said she could be fair. The court doesn't discuss whether the doctor-patient relationship would support a claim of implied bias. Cf. Jones v. Shea, 148 Vt. 307 (1987) (jurors were patients of doctor in malpractice action).
3. During voir dire one potential juror said s/he believed Grega was guilty and they ought to hang him. No abuse of discretion in denying motions for mistrial and change of venue: a cautionary instruction, and questioning others in the pool was good enough, and there was no evidence that the comment reflected local community bias requiring a venue change.

CHAPTER 29: THE RIGHTS TO CONFRONT AND PRESENT EVIDENCE

EXCLUSION OF DEFENSE 404(b) EVIDENCE
State v. Corliss, No. 96-035 (Feb. 6, 1998) (Amestoy)
A murder defendant testified that Justin Durphy stabbed the victim, and produced nine witnesses who testified that Durphy had threatened to commit the crime beforehand and confessed to it afterwards. The trial judge allowed these admissions as statements against penal interest (V.R.E. 804(b)(3)) but kept out evidence of the context, which usually involved other crimes and bad acts. (E.g., when a witness accused him of beating a friend of hers, Durphy threatened to kill her, as he had killed the murder victim. The judge excluded the evidence of the beating). The supreme court affirms, finding a proper exercise of discretion and no violation of the defendant's right to confront or to produce exculpatory evidence.

EXCLUSION OF DEFENSE EVIDENCE - INSUFFICIENTLY SUPPORTED DEFENSE THEORY
State v. Webster, No. 94-106 (March 15, 1996) (Johnson)
The defendant was charged with assaulting his wife and daughters. His theory of defense was that the local sheriff - who was the investigating police officer - was having an affair with his wife and that the two of them fabricated the charge and "coached" the daughters. The judge let some of this evidence in but instructed the jury to consider it only as impeachment (the wife had denied the affair) and that they shouldn't decide whether the affair actually took place. The supreme court affirms. There was no evidence other than the affair to support the defense's conspiracy theory; the sheriff didn't testify so his credibility wasn't involved, and there were proper V.R.E. 403 reasons to limit this evidence.

EXCLUSION OF DEFENSE 404(b) EVIDENCE - THIRD PERSON'S INVOLVEMENT
State v. Olsen, No. 95-119 (May 10, 1996)
In a murder prosecution for killing a two-year-old girl, evidence that the victim's daycare provider had been investigated for abusing another child was properly excluded; a defendant trying to show a third person's involvement has to show "some evidence to directly connect [the] third person to the crime charged." Slip op. 5.

CONFRONTATION - BRUTON MATERIAL - INSTRUCTIONS
State v. Gundlah, No. 96-052 (July 3, 1997) (Johnson)
Gundlah and a codefendant, Bacon, were charged with murdering a schoolteacher while on furlough from Woodstock. They were tried separately. At Gundlah's trial a police witness testified that Bacon told him that Gundlah gave Bacon a knife (which could have been the murder weapon), "[b]ecause he chickened out while they were en route to [the victim's house]." The judge told the jury to ignore the testimony entirely, but denied a motion for mistrial, and the supreme court affirms: Juries can be expected to follow this kind of curative instruction, unlike the instruction in Bruton v. United States (1968) which told a jury in a joint trial it could consider a codefendant's admission against the codefendant, but not against the defendant himself (as to whom it was inadmissible hearsay). In a Bruton situation a mistrial is mandatory but here a mistrial was discretionary and the judge could properly deny it (the statement wasn't all that inculpatory, and there was lots of other evidence of guilt).

EXCLUSION OF DEFENSE EVIDENCE - 404(b) MATERIAL AND THIRD PERSON'S CONFESSION
DEFENSE WITNESS IMMUNITY
State v. Grega, No. 96-106 (April 10, 1998) (Johnson)
The court affirms defendant's conviction for murdering his wife, rejecting claims that the defense was prevented from presenting exculpatory evidence.
1. The defense contended that the murder was committed by two men, Comi and Carpenter, who were working as painters in the condominium complex where the defendant and his wife were staying. The judge refused to allow proof of their sexual preferences, criminal histories, and a hearsay statement by one of them claiming responsibility for the crime. Some of this evidence -- including an apparent admission to the crime -- was excludable as hearsay. Some -- including admissions to other murders and evidence of a penchant for anal sex -- was inadmissible "propensity" evidence barred by V.R.E. 404. The court says that the propensity evidence wasn't strong enough that its admission was required under the sixth amendment. (But what about the alleged confession?)
2. No abuse of discretion in refusing to allow use of Comi's and Carpenter's criminal convictions as impeachment under V.R.E. 609: the defense had not given the state notice of its intent to use this material as required by V.R.Cr.P. 26(c).
3. A claim that the court should have granted immunity to a defense witness wasn't preserved. To preserve an immunity claim the witness must take the stand and claim a privilege against self-incrimination as to particular questions.

RIGHT TO PRESENT IMPEACHMENT EVIDENCE - HARMLESS ERROR
State v. Fuller, No. 95-534 (September 11, 1998)(Skoglund)
The exclusion of statements in letters written to defendant by his wife, offered for impeachment, was error, but harmless, and it was not error to exclude, as impeachment, the testimony of a witness who claimed defendant's wife expressed doubts about the truth of her son's allegations against defendant. Justice Dooley dissented, being unable to conclude that the exclusions were either proper or harmless beyond a reasonable doubt.

EXCLUSION OF DEFENSE PROFILE EVIDENCE
State v. LaBounty, No. 96-180 (April 17, 1998) (Morse) (See EVIDENCE).

CHAPTER 30: THE PRIVILEGE AGAINST SELF-INCRIMINATION

STATE SELF-INCRIMINATION - USE IMMUNITY
State v. Ely, No. 966-587 (Dec. 19, 1997) (Dooley) (See CONFESSIONS).

COMMENT ON SILENCE AT TRIAL
State v. Zele, No. 97-239 (July 10, 1998) (Amestoy)
When the state argued in closing in a drug case that the defendant never said to police, "this doesn't belong to me," it wasn't commenting on defendant's silence at trial but his failure to claim innocence to the police who conducted the search. It was also not misconduct for the prosecutor to argue that there wasn't any evidence "in this case" that the marijuana belonged to the defendant's roommate. The state had charged the roommate with possession, but there was no evidence introduced about that, so the comment wasn't untruthful.

CHAPTER 31: ADMISSIBILITY OF EVIDENCE (SELECTED TOPICS)

HEARSAY - PAST RECOLLECTION RECORDED
State v. Marcy, No. 94-173 (March 22, 1996) (Johnson)
In a spousal assault case the court holds that the "past recollection recorded" exception to the hearsay rule, V.R.E. 803(5) allows admission of the wife's tape recorded statement, after she testified to a general lack of memory about the incident. The opinion backs off from an earlier case, State v. Lander, 155 Vt. 645 (1990), which required the witness "to adopt the statement as his own or aver that the statement accurately reflected his knowledge at the time of its making." The rule's requirement that the statement must be "shown to have been made or adopted by the witness" can be satisfied by someone other than the witness, at least in the case of a tape recording. The requirement that the statement "reflect [the witness'] knowledge correctly" doesn't require the witness to vouch for its accuracy, and can be satisfied by other evidence supporting its reliability.
Justice Dooley sees this opinion as "an unprecedented weakening of the foundational requirements" for the past recollection recorded rule.

L&L WITH A CHILD - STATEMENTS IN PREPARATION FOR A LEGAL PROCEEDING (V.R.E. 804a)
EXPERT "VOUCHING" FOR CREDIBILITY
State v. Fisher, No. 96-015 (March 21, 1997) (Gibson, J.)
1. A court-appointed psychologist in a family court proceeding was allowed to testify in the criminal case concerning the statements made by the child. The court holds that these statements were taken "in preparation for a legal proceeding" within the meaning of V.R.E. 804a, but the error was harmless. 2. Other statements by the psychologist that the children's behavior was suggestive of direct trauma and that one child's affect was congruent with the content of her statements were not plain error as vouching for the child's credibility.

V.R.E 403 - GRUESOME VIDEOTAPE
State v. Gundlah, No. 96-052 (July 3, 1997) (Johnson)
In a murder case the state was allowed to show a videotape of the victim's exhumation, the ostensible purpose being to show that it took two men to bury her. The supreme court says this wasn't an abuse of discretion.

PRIOR CONSISTENT STATEMENTS - "REHABILITATION" OF IMPEACHED WITNESS
State v. Church, No. 96-351 (Jan. 21, 1998) (mem.)
The defense case included evidence that one of the complainants had recanted; the state responded with a prior consistent statement to "rehabilitate" the witness; and the defense argued that the statement didn't meet the requirements of the prior-consistent-statement rule (V.R.E. 801(d)(1)(B). The court holds that 801(d)(1)(B) only covers those circumstances when prior consistent statements are offered as substantive evidence. The statement here was simply offered as rehabilitation, and this use is permissible whenever the statement has "some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony."

SEXUAL ASSAULT - PERSONAL KNOWLEDGE OF COMPLAINANT
State v. Cate, No. 94-419 (Aug. 9, 1996) (Gibson)
In this sexual assault case, the complainant maintained that defendant had unconsented sex with her after she had passed out from alcohol and drug intoxication. The defense claimed that she had only "blacked out," and willingly engaged in sexual activity which she could not remember later.
The court affirmed the conviction, holding (a) the argument that the evidence was insufficient because complainant lacked personal knowledge, due to her intoxication, was not properly preserved in the trial court, (b) it was not error for the court to admit evidence that the complainant told defendant to stop sexual activity as soon as she awoke, evidence of her emotional state after the event, and evidence that complainant had rejected defendant's sexual advances in the past.

PCR - JUDGE AS WITNESS
In re Wilkinson, No. 95-156 (April 12, 1996)
In a PCR case claiming ineffective assistance of counsel the state called Judge Grussing, the trial judge, to testify that although defense counsel's performance fell below reasonable standards his incompetence didn't affect the outcome. The supreme court reverses: a judge can't testify in a PCR case in defense of the fairness of his own trial.

V.R.E. 404(b) "DOMESTIC ABUSE" EXCEPTION
V.R.E. 26(c) NOTICE - HARMLESS ERROR
State v. Sanders, No. 97-003 (April 24, 1998) (Morse)
The court fashions a broad new domestic abuse exception to V.R.E. 404(b) permitting proof of prior spousal assaults, and pares down the disclosure requirements of V.R.E. 26(c).
1. An error in the prosecution's V.R.E. 26 notice, misdescribing the prior bad acts it intended to introduce, was harmless because the defendant wasn't misled. In fact, "If defendant actually brings a motion in limine to exclude prior bad act evidence, he cannot then claim insufficient notice since the purpose of V.R.Cr.P. 26(c) has been met."
2. As for the alleged acts themselves -- prior assaults against the same complainant -- the court says it doesn't have to decide if they were relevant to show "fear" or "intent" or some other V.R.E. 404(b) exception, but (as in State v. Forbes, 161 Vt. 327 (1994), which carved out a similar exception for child sexual abuse cases) simply to show the context:
Without knowing the history of the relationship between the defendant and the victim, jurors may not believe the victim was actually abused, since domestic violence is "learned, ... controlling behavior aimed at gaining another's compliance" through multiple incidents....
The history was also relevant to explain the complainant's subsequent recantation.
3. The complainant denied that the prior acts had occurred and the defendant claimed on appeal that there wasn't enough evidence for the jury to find that they actually happened. The court holds that this claim was waived: defendant didn't object on this ground and raised it only in his motion for new trial.

HEARSAY - V.R.E. 804A
EXCLUSION OF DEFENSE PROFILE EVIDENCE
State v. Labounty, No. 96-180 (April 17, 1998) (Morse)
1. Labounty was convicted of two counts of sexual assault, for having oral sex with two girls at his wife's home daycare. The children's statements to their parents and (the following day) to a caseworker and police officer, were admissible under V.R.E. 804a. The statements to the parents were reliable judged independently of each other (their mutual corroboration is probably not a proper basis for finding reliability.) The statements to SRS and the police were not taken in preparation for a legal proceeding but simply as a matter of investigation.
2. The trial judge had discretion to exclude defendant's expert, Richard Hamill, who would have testified to a profile regarding "acquaintance abusers," offered to show that Labounty didn't fit the profile. The evidence was only marginally probative and could have bogged down the trial in side-issues. The court says it isn't ruling on the general admissibility of this kind of evidence when offered by the prosecution.

RAPE SHIELD LAW - PRIOR CONDUCT - OFFER OF PROOF
State v. Rock, No. 96-478 (Feb. 5, 1998) (unpublished mem.)
No error in excluding evidence of an eight year old boy's prior sexual experiences: the defendant's offer of proof (complainant had been "sexually abused by one or two other children") wasn't nearly specific enough.

V.R.E. 804A
State v. Cameron, No. 97-046 (October 16, 1998)(Johnson)
V.R.E. 804a hearsay was reliable enough to provide the sole support for a sexual assault conviction. The defendant's right to confront witnesses was not infringed by using children's videotaped testimony under V.R.E. 807 to satisfy the availability requirement of V.R.E. 804a

CHILD-ABUSE REGISTRY - EXPUNGEMENT - HUMAN SERVICES BOARD - CHILD HEARSAY - V.R.E. 804A
In re C.M., No. 97-245 (October 9, 1998)(Morse)
The Court reversed an order of the Human Services Board refusing to expunge a sexual abuse finding from the child-abuse registry. The board did not have good cause to reject the findings of the hearing officer that the abuse allegations were unreliable. The Court also held that V.R.E. 804a governs the admissibility of child hearsay concerning sexual abuse at expungement hearings.

CHAPTER 34: JURY INSTRUCTIONS

DELIVERY OF HEROIN - LESSER INCLUDED OFFENSES
State v. Mercado, No. 95-392 (June 13, 1997) (mem.)
The trial court didn't err in refusing a requested "lesser offense" instruction on possession of heroin, in a prosecution for delivery. The same prosecution evidence which showed possession also showed delivery, so the jury couldn't have rationally convicted on the lesser and acquitted on the greater. The defendant's own testimony, that he possessed heroin earlier in the day but didn't sell it, also didn't warrant a lesser-included offense charge.

"LESSER RELATED" OFFENSES
State v. Corliss, No. 96-035 (Feb. 6, 1998) (Amestoy)
Corliss, charged with murder, contended that he was not guilty of homicide but had agreed with the real murderer not inform on him. He requested a jury instruction on the "lesser-related" offense of "compounding a felony" (13 V.S.A. § 8). The court ducks the question whether defendants are entitled to lesser-related (as opposed to lesser-included) jury instructions. The jurisdictions which require these instructions limit them to offenses which have an "inherent relationship" or be "closely related" to the crime charged, and the court holds that compounding a felony doesn't bear this relationship to murder. It's still an open question "whether it is ever appropriate to instruct the jury on a lesser-related offense...."

FAILURE TO CHARGE ELEMENT - NOT PLAIN ERROR
State v. LaCourse, No. 97-108 (May 8, 1998) (Amestoy)
The trial judge failed to instruct the jury in a perjury prosecution that the false statement must have been "material" to an issue in the proceeding. This omission was probably error under the U.S. Supreme Court's decision in United States v. Gaudin, 515 U.S. 506 (1995) (materiality of falsehood a fact question which must be decided by jury), but the defendant failed to object (though Gaudin had been decided a year before) and in the circumstances the failure to charge was not plain error.

CHAPTER 35: JURY INTEGRITY AND THE RETURN OF THE VERDICT

JUROR MISCONDUCT - EX PARTE CONVERSATION
State v. Washington, No. 95-416 (Jan. 10, 1997) (mem.)
The court held that a juror need not be removed even though the juror's husband told her that the defendant "is always in trouble". The court stated that even if the statement had the "capacity to influence" the jury, the record revealed no "possibility of prejudice." The court noted that the statement was not particularly inflammatory, that no prior charge against the defendant was revealed, the defendant was "obviously in trouble," the juror testified that she was unaffected by the statement, and that the evidence in support of the verdict was strong.

JUROR MISCONDUCT - VOIR DIRE
State v. Fitzgerald, No. 94-650 (July 5, 1996)
The trial court properly denied a motion for new trial based on the alleged misconduct of an alternate juror. After questioning the alternate, and asking the jury if any extraneous information had come its attention, the judge had no basis to suspect jury prejudice and no duty to conduct an individual voir dire.

JUROR MISCONDUCT - EX PARTE CONVERSATION
State v. McKeen, No. 94-260 (Aug. 30, 1996) (Dooley)
A trial juror met a friend in a bar, and mentioned he was sitting on the case. The friend responded, "Guilty, guilty, guilty." The juror said he was uncertain. The two also discussed the evidence and the reasonable doubt standard, and the friend told the juror about the unsavory reputation of the bar where defendant had met the complainant. The juror also asked of another person the price of an eight ball of cocaine ($300), and gave this information to other jurors.
The court held that the trial court did not abuse its discretion in denying a new trial.

PART V

CHAPTER 36: PLEAS OF GUILTY AND NOLO CONTENDERE

RULE 11 - VOLUNTARINESS
Thompson v. State, No. 96-175 (June 6, 1997) (Allen).
Round 1 of this case was State v. Thompson, 162 Vt. 532 (1994), where the court rejected a claim of V.R.Cr.P. 11(c) violations on the ground that defense counsel did not object or move to withdraw the plea and the defendant didn't show "plain error". Thompson then filed a PCR alleging that the plea violated the rule and was involuntary. The superior court granted summary judgment for the state and the supreme court affirms again.
PCR petitioners have to show that they were prejudiced by Rule 11 violations. There was "substantial compliance" with the rule here: the prosecutor's recitation of a factual basis served to explain the nature of the charges, and the written plea agreement spelled out the maximum punishment. The court rejects affidavits of the defendant's trial lawyers swearing that they never could discuss these things with their client: a pre-plea finding of competency settled any question of the defendant's ability to understand.

MOTION TO WITHDRAW NOLO PLEA - SEXUAL ASSAULT - REQUIREMENT OF ADMISSION OF GUILT FOR SEX OFFENDER TREATMENT
State v. Fisk, No. 93-545 (June 10, 1996) (Morse)
Defendant pled nolo to four counts of sexual assault of minors pursuant to a plea agreement that provided for concurrent split sentences. Before sentencing, he moved to withdraw his pleas, alleging he was not aware that he could not successfully complete sex offender treatment (and thus avoid violation of probation) unless he was willing to admit guilt of the crimes. The court upheld the trial court's denial of leave to withdraw the pleas, holding that language in the written plea agreement showed that defendant understood the consequences of his plea. Justice Dooley dissented, claiming the court had eviscerated the liberal standard for plea withdrawal before sentencing and questioning the wisdom of permitting nolo pleas in sexual abuse cases.

BOYKIN AND RULE 11 - MOTION TO WITHDRAW
State v. Yates, No. 97-191 (Jan. 8, 1999) (Johnson)
The defendant received a deferred sentence on a plea to aggravated domestic assault. Three months later he was charged with violating his probation, and the court revoked the deferred sentence. He then moved to withdraw his plea. The trial judge denied the motion. The Supreme Court reverses in a surprising opinion, given its recent cavalier attitude towards Rule 11 claims.
1. The defendant had a procedural right to move to withdraw his plea on the deferred sentence. Motions to withdraw may be made "only by a defendant who is not in custody under sentence." V.R.Cr.P. 32(d). Yates' probation put him "in custody" (see State v. Wargo, No. 97-246 (Aug. 28, 1998)), but because his sentence had been "deferred" he wasn't "in custody under sentence." Also, because his sentence didn't include a term of imprisonment, the motion could be made "at any time".
2. The motion to withdraw should have been granted because the trial court didn't conduct a sufficient inquiry into the factual basis (V.R.Cr.P. 11(f)). The supreme court holds for the first time that Rule 11(f) requires inquiry of the defendant personally, "because the factual basis for the plea may consist only of facts that defendant has admitted during the proceedings at which the plea is entered." The advice subsections of the rule (11(c) and (d)) also require personal address, and Rule 11(g), which requires "[a] verbatim record" of the plea-taking, make clear that the court's advice about rights and its inquiry into voluntariness, as well as the factual basis, "must be met through personal address of the defendant."
3. Rule 32(d)'s tough "manifest injustice" standard for post-sentence plea withdrawal motions applies to this case, but the absence of a factual basis inquiry satisfies the test. In a footnote the court says that a non-technical Rule 11(c) violation might also demonstrate "manifest injustice."

MOTION TO WITHDRAW GUILTY PLEA - "IN CUSTODY UNDER SENTENCE" - V.R.CR.P. 32(D)
State v. Wargo, No. 97-246 (August 28, 1998)(Johnson)
A person whose sentence is suspended and who is placed on probation is "in custody under sentence" for purposes of V.R.Cr.P. 32(d) and therefore cannot move to withdraw his plea more than 30 days after imposition of the suspended sentence. The remedy is a petition for post-conviction relief.

NOLO CONTENDERE PLEA - ADMISSION OF CONDUCT UNDERLYING CONVICTION
State v. Katon, No. 96-359 (September 4, 1998)(Skoglund) (see PROBATION AND PROBATION REVOCATION)

CHAPTER 37: SENTENCING

STIFFER SENTENCE AFTER RETRIAL
State v. Turgeon, No. 94-683 (March 8, 1996) (Morse)
The defendant's plea-bargained sentence of 15-25 years was reversed on appeal and the case went to trial. His sentence after the trial was 24.5 to 43 years. The court sees nothing wrong with this, since the rule against harsher sentences after retrial doesn't apply where the first sentence is the result of a plea bargain.

PSI - NEWSPAPER'S FIRST AMENDMENT RIGHT OF ACCESS
State v. LaBounty, No. 96-180 (Aug. 1, 1997) (Johnson)
The court reluctantly upholds the statutory confidentiality of PSIs against a newspaper's first amendment claim for access. Given the fact that defendants now have access to PSIs and a right to challenge their allegations, the court thinks that the PSI privilege "makes little sense" and that the legislature should repeal it.

PSI - THIRD PARTY DEFENDANT'S RIGHT OF ACCESS
State v. Bacon, No. 96-548 (Aug. 29, 1997) (Johnson)
In a related case the court rules that criminal defendants have a limited due process right of access to another defendant's PSI. The standards and procedures are the same as for other confidential materials: the defendant must make an initial "plausible showing" of materiality; the court conducts an in camera review and discloses any exculpatory material. The right of access applies also to sentencing, because Brady holds that the state must disclose evidence material to guilt or punishment. But the defendant has to show more than that other defendants in the state received lower sentences for similar crimes in unrelated cases. The court orders an in camera review of Bacon's codefendant's PSI.

IMMUNITY FOR STATEMENTS MADE BY SEX OFFENDERS AT SENTENCING
State v. Loveland, No. 95-136 (Aug. 9, 1996) (Dooley)
A sexual assault defendant maintained his innocence at sentencing and the judge gave a stiff sentence because his refusal to acknowledge responsibility made therapy impossible. Acknowledging a self-incrimination problem which it had avoided in prior cases, the court ordered resentencing, adopting a use immunity rule for statements made by sex offenders, convicted after a trial, during their sentencing. See also State v. Cate, No. 94-419 (Aug. 9, 1996) (under PROBATION AND PROBATION REVOCATION).

LOVELAND IMMUNITY - HARMLESS ERROR
State v. Lund, No. 96-056 (Jan. 16, 1998) (Johnson)
The court's failure to offer the defendant use immunity at sentencing (pursuant to Loveland) was harmless, given that defendant claimed innocence at sentencing.

ACQUITTED CONDUCT
State v. Sahm, No. 94-518 (June 14, 1996) (mem.)
In a case where the defendant was charged with murder and convicted only of voluntary manslaughter, the judge's remarks at sentencing - to the effect that the victim was simply minding his own business and didn't see the defendant coming until the very end - were not inconsistent with the verdict.

ACQUITTED CONDUCT
State v. Rock, No. 96-478 (Feb. 5, 1998) (unpublished mem.)
No error in using acquitted conduct at sentencing: "a sentencing court may take into account conduct for which the defendant has been acquitted, as long as the court finds that the conduct has been established by a preponderance of the evidence."

MURDER SENTENCES
State v. Corliss, No. 96-035 (Feb. 6, 1998) (Amestoy)
The court rejects a challenge to a murder sentence, holding (a) that the evidence supported the aggravating factor which
the trial judge relied on (crime was "particularly severe, brutal, or cruel), (b) that the usual "common law" sentencing considerations -- punishment, deterrence, rehabilitation -- are applicable to murder sentencing, and (c) that the judge's failure to set forth his sentencing decision in writing (as required by 13 V.S.A. § 2303(c)) was harmless error.

MURDER SENTENCES
State v. Gundlah, No. 96-052 (July 3, 1997) (Johnson)
There was no error in finding the aggravating sentencing factor that the defendant committed the crime while "in custody under sentence of imprisonment." The section applies to escapees.

CONDITIONS OF CONFINEMENT
State v. Passino, No. 97-428 (Dec. 14, 1998) (mem.)
The judge's recommendation of sex offender programming (notwithstanding that defendant had been acquitted of sexual assault) didn't violate due process. The court holds broadly that "due process rights are not implicated when the issue is the conditions, as opposed to the duration, of [defendant's] confinement" because conditions of confinement are "within the broad discretion of prison authorities."

MURDER SENTENCES
State v. Corliss, No. 96-035 (Feb. 6, 1998) (Amestoy)
The Court rejects a challenge to a murder sentence, holding that the evidence supported the aggravating factor which the trial judge relied on (crime was "particularly severe, brutal, or cruel"), and holding that the usual "common law" sentencing considerations -- punishment, deterrence, rehabilitation -- are applicable to murder sentencing. The judge's failure to set forth his sentencing decision in writing (as required by 13 V.S.A. § 2303(c)) was harmless error.

See also State v. Cyr, No. 97-450 (Jan. 29, 1998) (CONFESSIONS)

CHAPTER 38: PROBATION AND PROBATION REVOCATION

PROBATION REVOCATION - HEARSAY - CONFRONTATION
FAILURE TO COMPLETE THERAPY - SUFFICIENCY OF EVIDENCE
CONSTITUTIONALITY OF URINALYSIS CONDITION - WAIVER
State v. Austin, No. 95-256 (Aug. 9, 1996) (Gibson)
1. In this appeal of an order revoking probation, the court (a) held that an affidavit of a New Hampshire police officer, admitted over an objection based on the Confrontation Clause, was insufficient to establish that defendant left the state without permission; in probation revocation proceedings, "a trial court must make an explicit finding, and must state its reasons on the record, whether there is good cause for dispensing with the probationer's confrontation right and admitting hearsay into evidence."
2. There was insufficient evidence to support a finding that defendant failed to complete sex offender therapy where he was still participating but had problems putting what he learned into practice in daily life.
3. The defendant could not challenge the validity of a drug testing condition during a revocation proceeding, where the challenge could have been raised on direct appeal from the sentencing order.

PROBATION REVOCATION - HEARSAY EVIDENCE
State v. Styles, No. 96-234 (Apr. 1, 1997) (mem.)
The court vacated and remanded a probation revocation because the trial court did not make explicit findings and did not state its reasons on the record for admitting hearsay into evidence at defendant's probation revocation hearing as is required by State v. Austin.

PROBATION REVOCATION - HEARSAY - STANDARD OF REVIEW
State v. Leggett, No. 966-249 (Nov. 21, 1997) (Amestoy)
Leggett's probation was revoked for violating a "no contact" condition (no contact with children under sixteen). He appealed arguing that some of the evidence was hearsay, received without a finding of "good cause," in violation of State v. Austin. The opinion acknowledges the error but affirms the violation because "there was ample direct evidence to support the conclusion that defendant had contact with children...." Dooley, joined by Johnson, writes a sharp dissent. The case has to do with the standard of review, he says. Amestoy has invoked an "extreme pro-affirmance standard" affirming the VOP "because it was possible for the trial court to have revoked defendant's probation ... without considering the inadmissible evidence." This stands the usual standard of review on its head (in criminal cases errors aren't harmless unless they're harmless beyond a reasonable doubt; in quasi-criminal probation cases the reviewing court can't affirm unless convinced that the error had no effect).

USE IMMUNITY FOR STATEMENTS REQUIRED FOR SUCCESSFUL COMPLETION OF SEX OFFENDER PROBATION
State v. Cate, No. 94-419 (Aug. 9, 1996) (Gibson)
In a sexual assault case the court vacated a sentencing order which required defendant to admit guilt as a condition for enrollment in probationary sex offender therapy, holding that the court must grant use immunity to a defendant for any statements required for successful completion of rehabilitative probation and so advise the defendant at sentencing. See also State v. Loveland, under SENTENCING.

RESTITUTION - LOST PROFITS
State v. May, No. 95-435 (Dec. 6, 1996) (Johnson, J.)
The court distinguished between lost profits, "lost employment income" and "loss of earning capacity" for purposes of restitution. Lost profits may be awarded under 13 V.S.A. 70433 if easily ascertainable. Lost profits were found not to be easily ascertainable when the calculations rested on store managers' estimates and not supported by any data. Morse dissents.

RESTITUTION - STOLEN PROPERTY
State v. VanDusen, No. 96-120 (Jan. 31, 1997) (Dooley, J.)
The restitution award of $4,000 exceeded the amount of the value limit for petit larceny ($500) but full restitution is approved anyway. The statute does not limit damages to the dollar amount in the crime charged.

RESTITUTION - COSTS OF EXTRADITION
State v. Lewis, No. 966-493 (April 17, 1998) (Morse)
The court affirms a restitution order requiring the defendant to pay the costs of his own extradition. The cost of extradition is not a "cost of prosecution" which must be borne by the state (see 13 V.S.A. §§ 7172(b), 7253)), at least when the underlying crime is escape. The department of corrections was a "victim" for purposes of the restitution statutes, and the expense of extradition constituted a "material loss."

RESTITUTION - COSTS OF PROSECUTION - VICTIM'S SECURITY MEASURES
State v. Forant, No. 97-386 (Aug. 21, 1998) (Johnson)
In a domestic assault case the court vacates a broad restitution order, which required the defendant to pay for various costs of trial preparation (lost wages, childcare, and transportation costs), and for "security measures" which the complainant took (changing door locks and changing her telephone number). The first category was barred by 13 V.S.A. § 7172(b), which says that defendants can't be taxed with the "cost of prosecution." Compare State v. Lewis, No. 96-493 (April 17, 1998) (defendant can be charged with costs of extradition). The second category -- "security expenses" -- isn't covered by Vermont's "narrowly drawn" restitution statute, 13 V.S.A. § 7043. These "damages" weren't directly related to the criminal act but to possible future crimes.

RESTITUTION - CHILD SUPPORT PAYMENTS
State v. Fontaine, No. 97-043 (April 17, 1998) (Morse)
A DUI death-resulting defendant was ordered to make weekly support payments to the decedent's two children. The court reverses: the damages are too uncertain. "[A]n award for partial child support is not authorized under our statutory scheme[,]" and the court "encourages" the legislature to broaden the restitution statutes.

VIOLATION OF PROBATION AFTER COMPLETION OF PAROLE
State v. Bensh, No. 97-338 (August 31, 1998)(mem.)
A defendant can be found in violation of probation even after he has successfully completed parole. Despite the parole board's discharge, the defendant remained on probation until the court discharged him.

VOP - INCREASING UNDERLYING SENTENCE
State v. Draper, No. 97-055 (April 15, 1998) (mem.)
Defendant was on probation on three suspended concurrent sentences. After finding a violation the judge revoked probation on two of the three, but continued probation on the third (in part, at least, to preserve a restitution condition). The supreme court holds that this exceeded the judge's sentencing authority. The effect of the VOP sentences was to make one of the three concurrent sentences run consecutively to the other two. A court's power to increase a sentence is limited by 13 V.S.A. § 7042(b) (on prosecution motion, filed within seven days of sentence), and its options after a VOP are limited by 28 V.S.A. § 304 (revoke, continue on probation, or modify conditions). Making a concurrent sentence run consecutively isn't one of the options. Because it resolves the case on statutory grounds the court doesn't reach defendant's double jeopardy argument.

DEFERRED SENTENCE - REVOCATION
State v. Rafuse, No. 97-458 (Dec. 8, 1998) (mem.)
When a defendant is found in violation of probation on a deferred sentence, the court has no discretion to reinstate or continue the deferred sentence. The statutory language is mandatory: "Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence." 13 V.S.A. § 7041(b).

REVOCATION OF PROBATION - NOLO CONTENDERE PLEA - ADMISSION OF CONDUCT IN AFFIDAVIT OF PROBABLE CAUSE
State v. Katon, No. 96-359 (September 4, 1998)(Skoglund)
Defendant, who pleaded nolo to domestic assault, was denied admission to DAEP, and therefore charged with a probation violation for failure to complete DAEP counseling, because he did not sufficiently acknowledge the facts underlying the charge. The Court held that "revocation of defendant's probation was properly based on defendant's failure to admit his culpability for the crime to which he pleaded nolo contendere." Since slapping the victim was "the specific conduct underlying his conviction," it was not a violation of due process to require this admission as a condition of participation in DAEP. On the other hand, a defendant may not be required as a condition of programming to admit untested or unadmitted-to allegations in the police probable cause affidavit. In a concurring opinion, Justice Dooley counseled against permitting nolo pleas in cases where a defendant will have to participate in a rehabilitative program.

PROBATION REVOCATION - SENTENCING BY WRITTEN DECISION
State v. Passino, No. 97-428 (Dec. 14, 1998) (mem.)
Affirming revocation of probation on a manslaughter charge: A judge can revoke probation and impose the underlying sentence in a written decision. Neither V.R.Cr.P. 32.1 nor the constitution requires sentencing in open court in a VOP case.

PART VI

CHAPTER 40: APPEALS

THE ROCKET DOCKET
State v. Mills, et al., Nos. 96-337, etc. (Jan. 2, 1998) (Dooley).
The rocket docket is constitutional, Justice Dooley writes for a unanimous court, notwithstanding the provision of Ch. II, § 29, that the "Supreme Court shall consist of the Chief Justice of the State and four associate justices of the Supreme Court" (and not a three justice rocket docket panel), and notwithstanding Ch. II, §31, which specifies that all courts "except the Supreme Court" may be divided into "geographical and functional" divisions.

CHAPTER 41: POSTCONVICTION REMEDIES IN SUPERIOR COURT

PCR - "DELIBERATE BYPASS" OF APPEAL
In re Hart, No. 97-059 (March 25, 1998) (mem.)
The defendant had a valid claim that the judge relied on sentencing information which hadn't been disclosed (V.R.Cr.P. 32(c)(3), but he didn't raise it on direct appeal and the court refuses to consider it on his PCR. A defendant can't "deliberately bypass" review by direct appeal and then raise an issue in a PCR proceeding (why would he ever want to?), and it's the PCR petitioner's burden to show that the "bypass" wasn't "deliberate."

PETITION FOR EXTRAORDINARY RELIEF - DENIAL OF RELIEF FROM ABUSE PETITION
Willis v. Young, Commissioner, SRS, No. 98-308 (August 25, 1998)(4 judge e.o.)
Review of a family court decision denying a relief from abuse petition is not available by filing a petition for extraordinary relief in the Supreme Court. Relief must be sought by a petition in superior court or by appeal of the family court decision.

CHAPTER 42: POSTTRIAL MOTIONS IN DISTRICT COURT

NEWLY DISCOVERED EVIDENCE
State v. Webster, No. 94-106 (March 15, 1996) (Johnson)
The court affirms denial of the defendant's motion for new trial based on new evidence. The defendant was charged with assaulting his wife and daughters and claimed that the local sheriff - who was the investigating police officer - was having an affair with his wife and that the two of them fabricated the charge and "coached" the daughters. The newly discovered evidence was an answering machine tape in which the wife threatens the sheriff and tells him that he'd "best be doing something" and that she "can turn over those pictures." The court agrees with the trial judge that the tape probably wouldn't change the result of the trial.

NEWLY DISCOVERED EVIDENCE
State v. Olsen, No. 95-119 (May 10, 1996)
In an murder case the defendant claimed that a daycare provider was the actual culprit. Defense counsel moved for a new trial, alleging that the victim's sister told him that the daycare provider had kicked the victim in the stomach on the day of her death, and then threatened the sister to prevent her testifying. The lawyer said he knew about this before the trial, but that the sister had been "terrified of testifying." This evidence was not "newly discovered," besides which the attorney's hearsay affidavit wasn't good enough.