Articles Posted in Criminal Law

Following an investigatory stop, defendants Wesley Haynes, Tristan Harris and Dennis Magoon, were all charged in different dockets with possession of heroin and defendant Magoon was charged with possession of a concealed weapon while committing a felony. In November 2018, defendants moved to suppress evidence. Defendants moved for reconsideration of the Vermont Supreme Court’s dismissal of their interlocutory appeals because defendants had not demonstrated why they could not seek review by entering a conditional guilty plea. Defendants argued they should not be required to enter a conditional guilty plea instead of seeking interlocutory review. The Supreme Court agreed, concluding a defendant is not required to demonstrate that a conditional guilty plea is not practicable or available before seeking interlocutory review. "A defendant in a criminal action may seek interlocutory review if the requirements of Vermont Rule of Appellate Procedure 5 are met." In this case, because the criminal division did not explain the basis for granting interlocutory appeal, th Supreme Court dismissed the interlocutory appeals without prejudice to defendants refiling after the trial court issued a decision. View "Vermont v. Haynes" on Justia Law

Appellant Stephan Palmer, Sr. appealed the grant of summary judgment in favor of appellee, Attorney Mark Furlan. While incarcerated, appellant filed a petition for postconviction relief (PCR). Attorney Furlan, an ad hoc public defender, was assigned to represent appellant in the PCR proceedings. The petition was litigated until the parties agreed to settle, arriving at a proposed stipulation to modify appellant’s sentence. December 23, 2015 the PCR court granted the parties’ stipulation motion. The entry order was immediately emailed to the criminal division; the criminal division issued an amended mittimus to the Commissioner of Corrections the same day; and the following day, the Department of Corrections received the amended mittimus and recalculated appellant’s sentence in accord with the PCR court’s order amending the sentence. Appellant was released from incarceration on December 24. Appellant then filed a civil action against Attorney Furlan, alleging legal malpractice. Not knowing that immediate release was at stake, the PCR court took more time than it would have otherwise in scheduling a hearing and approving the stipulation. Appellant characterized the length of incarceration between when he posited he would have been released if Attorney Furlan had more aggressively attempted to get the PCR court to act in an expedited manner and when he was actually released as wrongful and the basis for his damages. In affirming summary judgment, the Vermont Supreme Court concluded "The proof provided here, or rather the lack thereof, leaves all reasonable minds to speculate as to whether or not the PCR court would have: not scheduled a hearing on the motion; scheduled a hearing on the motion sooner than it did; issued an order on the motion in a shorter period of time after the hearing; come to the same conclusions and granted the stipulation motion; or behaved in any of the seemingly endless alternative manners a reasonable person could posit. Appellant’s argument simply leaves too much to speculation, which is something this Court and trial courts will not do when examining a motion for summary judgment." View "Palmer v. Furlan" on Justia Law

This case raised a facial challenge to Vermont’s statute banning disclosure of nonconsensual pornography. “Revenge porn” was a popular label describing a subset of nonconsensual pornography published for vengeful purposes. “Nonconsensual pornography” was defined generally as “distribution of sexually graphic images of individuals without their consent.” Vermont’s law, enacted in 2015, made it a crime punishable by not more than two years’ imprisonment and a fine of $2,000 or both to “knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm.” In late 2015, defendant was charged by information with violating the statute. The complainant contacted police after she discovered that someone had posted naked pictures of her on a Facebook account belonging to Anthony Coon and “tagged” her in the picture. Complainant told police that she had taken naked pictures of herself and sent them to Coon through Facebook Messenger. She advised that the pictures had been sent privately so that no one else could view them. Defendant Rebekah VanBuren admitted to the officer that she saw complainant’s pictures on Coon’s Facebook account and that she posted them on Facebook using Coon’s account. A judge found probable cause for the charge against defendant in December 2015. In February 2016, defendant filed a motion to dismiss. She argued that 13 V.S.A. 2606 violated the First Amendment to the U.S. Constitution because it restricted protected speech and it could not survive strict scrutiny. Defendant also asserted that complainant had no reasonable expectation of privacy because she took the pictures herself and messaged them to Coon without any promise on his part to keep the pictures private. The Vermont Supreme Court concluded the statute was constitutional on its face, but the State did not show the images were not distributed by the person depicted in a manner that undermined any reasonable expectation of privacy, and therefore the trial court was justified in dismissing the State’s charge against defendant. As the State acknowledged in its briefing, “it is difficult to see how a complainant would have a reasonable expectation of privacy in pictures sent to a stranger.” But the Court found the State did not present evidence to demonstrate that, in contrast to a stranger, Coon had a relationship with complainant of a sufficiently intimate or confidential nature that she could reasonably assume that he would not share the photos she sent with others. Nor did it offer evidence of any promise by Coon, or even an express request by complainant, to keep the photos confidential. The State stipulated that complainant and Coon were not in a relationship at the time complainant sent the pictures. Therefore, no evidence was presented to permit a jury to conclude beyond a reasonable doubt complainant had a reasonable expectation of privacy in the photos she sent. View "Vermont v. VanBuren" on Justia Law

Plaintiff-appellant James Ingerson sued the Department of Corrections (DOC) for negligence in investigating allegations that plaintiff was being sexually exploited by a DOC employee while he was an inmate at a DOC correctional facility. The trial court granted summary judgment to the State, holding that plaintiff’s claim was barred by the discretionary function exception to the Vermont Tort Claims Act (VTCA), 12 V.S.A. 5601(e)(1). Plaintiff appealed the summary judgment ruling to this Court. Finding no error, however, the Vermont Supreme Court affirmed. View "Ingerson v. Pallito" on Justia Law

Plaintiff Jeffrey-Michael Brandt was an inmate in the custody of the Vermont Department of Corrections (DOC). He filed this action seeking declaratory and injunctive relief prohibiting defendants (DOC officials) from interfering with his mail correspondence. The parties had previously entered into a Stipulation and Agreement of Dismissal (the Stipulation) in which DOC agreed not to prohibit plaintiff’s correspondence with other inmates not in the custody of DOC on the basis that this would violate 28 V.S.A. 802 and VTDOC Directive 409.5. However, plaintiff was prevented from corresponding with an inmate in another jurisdiction’s custody when he was housed in a state-run Pennsylvania facility, subject to the Interstate Corrections Compact (ICC). The trial court denied plaintiff’s motion seeking to be transferred to a non-ICC facility where the Stipulation would be enforced. Yet, during this appeal defendants transferred plaintiff to a non-ICC facility in Mississippi. The Vermont Supreme Court remanded this matter for a hearing to determine whether plaintiff’s mail correspondence privileges were restricted in Mississippi, and, if so, to what extent and on what basis they were restricted. View "Jeffrey-Michael Brandt" on Justia Law

In December 2015, Vemont charged defendant Jeremy Fischer with sexual assault of a minor based on an allegation that defendant raped the complainant. Defendant testified at trial. He confirmed he was with the complainant on the evening of the alleged assault. On cross-examination, the State asked defendant, “And you mentioned that [the complainant] was trying to nuzzle with you, you were feeling uncomfortable, and that she pursued you, correct?” Defendant answered, “Correct.” The State then asked, “And you didn’t tell Detective Tallmadge any of that during your interview with him, did you?” Defendant replied, “I did not.” Defendant also confirmed that he had been convicted of providing false information to a police officer in 2016. The State’s closing arguments raised defendant’s failure to tell Detective Tallmadge that the complainant tried to pursue him. Defendant appealed his ultimate conviction, arguing the trial court violated his due process rights by allowing the State to impermissibly comment on his silence. The Vermont Supreme Court determined that under the facts of this case, commenting on defendant's omissions did not raise the concerns of fundamental fairness and due process present in the controlling caselaw, Doyle v. Ohio, 426 U.S. 610 (1976). The Court determined defendant chose to respond to each of the detective’s questions and did not refuse to answer any specific questions. In this situation, the Court concluded defendant could not claim a due process violation. As such, the Supreme Court found no errors and therefore affirmed. View "Vermont v. Fischer" on Justia Law

Defendant Treyez McEachin was convicted of three charges pursuant to a conditional plea that preserved his right to appeal the denial of his motion to suppress and dismiss. Defendant was charged with disorderly conduct based on fighting or violent, tumultuous, or threatening behavior, as well as resisting arrest and simple assault on a police officer. He argued on appeal that because his conduct in walking toward a police officer was not disorderly, the disorderly-conduct charge should have been dismissed. He contended that because the officer then wrongfully prolonged their encounter, all evidence of his subsequent conduct, including his assault of the officer well after he was taken into custody, should also have been suppressed, and the assault charge should have been dismissed. After review of the trial court record, the Vermont Supreme Court agreed the disorderly-conduct charge should have been dismissed, and accordingly reversed the denial of the motion to dismiss that charge. However, the Court affirmed denial of the motion to suppress the evidence underlying the assault charge, and affirmed that conviction. View "Vermont v. McEachin" on Justia Law

Defendant Melissa Robitille appealed her conviction for involuntary manslaughter for the death of her son. She argued that the trial court violated the Confrontation Clause when it restricted cross-examination of the State’s key witness; that the State produced insufficient evidence to support a conviction; and that the court erred in failing to provide a specific unanimity instruction to the jury. Defendant's thirteen-year-old son was born with severe birth defects; to ease his pain, defendant often placed alcohol in the son's feeding/water bag. The child died as a result of his medical condition and acute ethanol toxicity; his blood alcohol level was 0.146. Defendant alleged multiple errors at trial warranted reversal of her conviction. The Vermont found no such errors and affirmed her conviction. View "Vermont v. Robitille" on Justia Law

Defendant Erika Schapp appealed her conviction for refusing to submit to an evidentiary breath test to determine blood-alcohol concentration. Defendant argued: (1) the court erroneously admitted evidence of her refusal to take a preliminary breath test (PBT); (2) the State failed to meet its burden of proving the “reasonableness” requirement for criminal refusal beyond a reasonable doubt; and (3) the State failed to prove that she refused the test. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Schapp" on Justia Law

Defendant Jody Herring, who pleaded guilty to murdering her cousins Rhonda and Regina Herring, her aunt Julie Falzarano, and social worker Lara Sobel, challenged her sentence of life imprisonment without possibility of parole for Lara Sobel’s murder. She argued the trial court abused its discretion in holding her history of trauma and resulting anxiety disorder against her when it should have viewed them as mitigating factors, and in basing its decision on a mistaken understanding that, if given an indeterminate sentence, she might be paroled without having rehabilitated. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Herring" on Justia Law