Defendant Allen Spaulding appealed his conviction on domestic assault charges. The issues on appeal centered on the admission of the complainant’s written statement as past recollection recorded and claims of insufficiency of the evidence and improper closing argument. The Supreme Court reversed on the admission of the written statement as hearsay, concluding that the admission was not harmless to defendant's case. View "Vermont v. Spaulding" on Justia Law

In consolidated appeals, petitioners, both recipients of home-based long-term care benefits through Vermont's Medicaid-funded Choices for Care (Choices) program, appealed decisions of the Human Services Board disallowing deductions for personal care services from their patient-share obligation under federal and state Medicaid laws. Upon review of the cases, the Supreme Court concluded that to the extent the services in question were medically necessary, expenses for those services must be deducted from petitioners’ patient-share obligation even if they are of a type generally covered by Medicaid. Furthermore, the Court rejected the State’s claim that the decision of the Department of Disabilities, Aging and Independent Living not to provide the personal care services in question under the Choices program constituted a conclusive finding that the services were not medically necessary. View "In re Brett" on Justia Law

The father of L.M. appealed the trial court's finding L.M. to be a child in need of care or supervision (CHINS). He raised numerous arguments. The Supreme Court found that while father's unstable living situation, standing alone, might not be sufficient to support a CHINS determination, there were multiple elements of risk under the facts of this case leading to the trial court's conclusion that father and L.M. could end up in an unsafe living situation. Furthermore, father's inability to follow through on recommendations designed to promote L.M.'s safety enhanced the potential risk of harm to L.M.'s well-being. Given these factors, including mother's concession, the Supreme Court concluded that the trial court record supported the decision that there was a risk of prospective harm to the child sufficient to justify the State’s temporary intervention to ensure that L.M. was safe. View "In re L.M." on Justia Law

This case stemmed from the Superior Court, Environmental Division’s affirmance of the zoning board’s grant of a conditional use zoning permit to applicant Group Five Investments, LLC, to build and operate a Dollar General store in Ferrisburgh. Opponents claimed: (1) the trial court erroneously shifted the burden of proof by requiring opponents to show both that the proposed project would have an adverse impact on the area and that existing commercial development in the area already had an adverse impact; (2) the trial court erred in using the "Quechee" definition of undue adverse impact as guidance in interpreting the zoning ordinance; and (3) the trial court erred in failing to rule that the proposed use is prohibited under the applicable zoning ordinance, and that the trial court violated Vermont Rule of Civil Procedure 52(a) by failing to make requested findings on the proposed use of the Dollar General store. Finding no reversible error, the Supreme Court affirmed the trial court. View "In re Group Five Investments CU Permit" on Justia Law

Defendant was convicted of sexual assault. He appealed that conviction, arguing that his case should have been dismissed on speedy trial grounds and that he was entitled to a new trial based on statements made in closing argument by the prosecution. While defendant asserted his right to a speedy trial at the appropriate time, the Supreme Court concluded that that right must be balanced with the facts that he was out on bail for the entire period of delay and has identified few specific claims of prejudice. Under these circumstances, the Court concluded that defendant was not deprived of his right to a speedy trial. Moreover, the prosecutor’s statements did not rise to the level of fundamental misconduct required by the "plain error" standard. View "Vermont v. Reynolds" on Justia Law

James and Leslie Tschaikowsky were married in 1999, and were in the process of divorcing. In between, the parties legally separated, agreeing on terms of separation that were formally incorporated into a final order issued by the family court on October 12, 2007. This appeal followed husband James’s request that the family court enforce the terms of the separation agreement in the divorce proceedings through summary judgment, which the court denied. The Supreme Court agreed with husband that the agreement was binding and enforceable as a matter of law, and reversed the family court’s denial of summary judgment. View "Tschaikowsky v. Tschaikowsky" on Justia Law

Defendant Scott Provost appealed the decision of the criminal division that he violated his probation when he refused to admit the offense and failed to complete a domestic violence program in a timely manner, and engaged in threatening behavior while attempting to sign up for the program eight months after his conviction. Defendant argued that the original one-year fixed term of probation expired during the pendency of this appeal, excusing him from the consequences of any subsequent violations. The Supreme Court affirmed on the ground that the record supported the trial court’s determination that defendant violated the terms of his probation by his delay in enrolling in and completing the domestic violence program. View "Vermont v. Provost" on Justia Law

In 2007, plaintiffs Sylvia and Stanley Stroup sued defendants Peter Doran and Peter Doran Landscape Design, LLC for breach of contract, fraud, and consumer fraud after defendants failed to perform landscaping for plaintiffs. Plaintiffs obtained a judgment against defendants. Defendants failed to pay the judgment. Plaintiffs obtained a writ of execution, and the court approved plaintiffs’ motion for trustee process to attach funds owned by defendants and held by Brattleboro Savings and Loan Association (BSL). BSL disclosed to plaintiffs that it held a balance of $2,853.05 in a checking account titled in the name of one of the defendants. A few days later, the parties stipulated that BSL would release $750 to plaintiffs, and that BSL would then be discharged as a trustee and defendant’s account would be free of any lien or charge benefitting plaintiffs. Defendants further agreed to pay $3,500 to plaintiffs before January 31, 2008. BSL paid plaintiffs $750. Plaintiffs claim that defendants never paid the remainder of their debt. In 2013, plaintiffs served BSL with another trustee summons. BSL did not reply within thirty days, and on August 27 plaintiffs moved for default against BSL and entry of judgment against it as trustee for $24,155.12, the balance due under the judgment. The court ordered the clerk to schedule a hearing on plaintiffs’ motion, and directed that a copy of plaintiffs’ motion and the notice of hearing be served on BSL. On September 16, BSL filed a trustee disclosure indicating that it did not have any of defendants’ property in its possession. The court subsequently entered an order denying plaintiffs’ motion for default judgment against BSL. The court stated that “[a]lthough Trustee failed to make a timely disclosure, its disclosure now made in response to Plaintiff[s’] motion for default shows that it holds no assets for the benefit of Defendant[s]. Default judgment under these circumstances would be inequitable.” Plaintiffs appealed. Plaintiffs argued that the trial court erred in denying their motion for default because applicable Vermont law makes default mandatory when a trustee fails to serve a disclosure within thirty days. Plaintiffs did not contest the information contained in the trustee’s disclosure form or request an evidentiary hearing below. See V.R.C.P. 4.2(g) (stating that party who intends to contest information contained in trustee’s disclosure is entitled to evidentiary hearing upon written request). Nor do they contest the information on appeal. Their sole argument before this Court is that default was mandatory under 12 V.S.A. § 3062 and V.R.C.P. 4.2(f). Finding no reversible error, the Supreme Court affirmed. View "Stroup v. Doran" on Justia Law

On the evening of September 9, 2009, the complainant was walking home along Colchester Avenue in Burlington when an unknown man attacked her and tried to force her into the cab of a pickup truck that was parked alongside the road. He punched her repeatedly in the face and she fell to the ground. He pinned her to the ground with his knee. She started screaming. At one point he shoved his finger into her mouth and she bit him. He got up and she managed to escape. She ran to a nearby house and rang doorbells until someone let her in. The assailant drove off in a truck. Police and an ambulance arrived soon afterwards. Several people witnessed the event and offered descriptions of the assailant and the truck to police. While the assailant’s truck was parked on the side of the road, a Chittenden County Transportation Authority (CCTA) bus passed by. Two video cameras attached to the bus captured images of the assailant’s truck at the location identified by the complainant. Defendant Harold Porter, Jr. was arrested and charged with attempted kidnapping, aggravated assault, and unlawful restraint. The latter two charges were eventually dismissed by the State. Defendant’s first trial in July 2011 ended in a mistrial when the jury was unable to reach a verdict. A second jury trial in March 2012 resulted in a guilty verdict. Defendant was sentenced to serve thirty years to life. He argued on appeal that the trial court erred: (1) in refusing to grant a motion for a new trial because the prosecution failed to disclose important expert testimony; (2) in admitting the testimony of police officers that they had ruled out other suspects based on interviews with out-of-court declarants; (3) in admitting eyewitness identification testimony; (4) in failing to dismiss the case for failure to preserve and test potentially exculpatory evidence; and (5) in excluding the testimony of defendant’s expert on police procedures. Upon review of the trial court record, the Supreme Court found that the investigating officers had no basis upon which to offer admissible testimony that the information they received from some of the witnesses met the personal knowledge requirement of Rule of Evidence 602. Consequently, admission of the officers' testimony was prejudicial to defendant. The Supreme Court reversed the conviction on this ground. View "Vermont v. Porter, Jr." on Justia Law

Defendant Yetha Lumumba is a native of the Democratic Republic of Congo. He immigrated to the United States in 2004, where he became a legal permanent resident. In 2012, defendant, then a student at the University of Vermont (UVM), was convicted of sexual assault of a fellow student. In June of 2010, defendant and the victim, J.B, met up for a bike ride to a Burlington beach which ended in sex that J.B. felt was nonconsensual. Several months later, J.B. reported the incident and defendant was subsequently charged with sexual assault against J.B. After a three-day jury trial, defendant was found guilty and received a sentence of eight years to life in prison. Defendant appealed his conviction, arguing that the trial court erred: (1) in allowing a clinical psychologist to give expert testimony about common reactions and behaviors of rape victims in between J.B.’s testimony and the defense’s cross-examination of J.B.; (2) in not permitting defense counsel to have J.B. look over transcripts of her prior testimony during cross-examination to determine whether she had made a prior inconsistent statement; and (3) in admitting hearsay testimony from a UVM police officer who met with J.B. Defendant also challenged his sentence, arguing that his immigration status prevented him from meeting Vermont’s statutory requirement for sex-offender counseling prior to release from incarceration, thereby effectively sentencing him to a disproportionately harsh punishment of life in prison without the possibility of parole in violation of the Eighth Amendment. Upon review of the matter, the Supreme Court affirmed the trial court's evidentiary rulings, but reversed on sentencing. The trial court did not have an obligation to reduce the sentence awarded in consideration of imminent deportation upon release from prison, but it did have an obligation under Vermont’s individualized sentencing process to examine defendant’s case and to consider the consequences of his particular situation in fashioning a sentence. Stating that it did not care to understand these consequences was a failure of this obligation and an abuse of discretion; awarding a sentence range of which the only evidence presented at sentencing indicated was not likely to be a range at all required more from the court in the way of findings than the court provided. Because the Supreme Court reversed on these grounds, it did not reach defendant’s Eighth Amendment claim. View "Vermont v. Lumumba" on Justia Law