State v. Lund

Annotate this Case

State v. Lund (96-056); 168 Vt. 102; 718 A.2d 413

[Opinion Filed 16-Jan-1998]
[Motion for Reargument Denied 18-Feb-1998]
[Motion to Vacate Denied 15-Jun-1998]

ENTRY ORDER

SUPREME COURT DOCKET NO. 96-056

MAY TERM, 1998

State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont
} Unit No. 3, Essex Circuit
James H. Lund }
} DOCKET NO. 110-11-94Excr

In the above-entitled cause, the Clerk will enter:

Defendant moves to vacate this Court's decision that issued January
16, 1998, on the ground that Chief Justice Amestoy participated in that
decision. Following the decision, defendant moved to disqualify the Chief
Justice, who recused himself in response to the motion on February 13.
Defendant's motion to reargue was denied by the four other justices.
Defendant now maintains that the original decision must be vacated. We
deny the motion.

The issue is whether a unanimous decision of the Court must be vacated
where one of the participating justices later recuses himself. The vast
majority of authority indicates that a decision need not be vacated where
the disqualified judge's vote was mere surplusage. See, e.g., Aetna, 475 U.S. at 827 ("Some courts have concluded that a decision need not be
vacated where a disqualified judge's vote is mere surplusage."); Harris v.
Champion, 15 F.3d 1538, 1571 (10th Cir. 1994) (considering that decision
was made unanimously by three-judge panel in deciding it was not necessary
to vacate decision where one judge was later found disqualified); Hodosh v.
Block Drug Co., Inc., 790 F.2d 880 (Fed. Cir. 1986) (disqualification of
one judge would not have provided basis for vacating unanimous decision of
panel); Maier v. Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985) (same); Caples
v. Taliaferro, 200 So. 378, 382 (Fla. 1941) (disqualification of justice
who had overlooked fact that he had participated in case as Attorney
General of Florida did not require vacating decision that was three to two
by qualified justices); State v. Kositzky, 166 N.W. 534, 535 (N.D. 1918)
(participation of judge disqualified to act did not require invalidating
proceeding where vote was five to zero, so his vote did not determine the
result); Goodheart, 565 A.2d 757, 761 (Pa. 1989) (judgment need not be
disturbed where participating "interested" judges' votes were mere
surplusage).

We join these courts and deny defendant's motion to vacate our
decision.

Dooley, J., concurring. This Court is a deliberative body, and
decisions often emerge from group interaction and decisionmaking. Thus, I
am unwilling to endorse a blanket rule that if enough nondisqualified
justices voted for a particular result, it will always stand despite the
involvement of one or more disqualified justices in the deliberative
process. Nor am I willing to endorse the rule advocated by defendant --
that involvement of a disqualified justice in deliberation automatically
taints the deliberation so the case must be submitted to a whole new panel
of specially-assigned justices. In this case, I believe, based on my
involvement in the case from its initial argument, that the participation
of the Chief Justice did not affect the result. Defendant has made no
showing to the contrary. Accordingly, I join in the decision to deny the
motion to vacate.

Motion to vacate denied.

FOR THE COURT:

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Frederic W. Allen, Chief Justice (Ret.)
Specially Assigned

---------------------------------------------------------------------------
State v. Lund (96-56) [Filed 18-Feb-1998]

ENTRY ORDER

SUPREME COURT DOCKET NO. 96-56
FEBRUARY TERM, 1998

State of Vermont } APPEALED FROM:
}
v. } District Court of Vermont
} Unit No. 3, Essex Circuit
James H. Lund }
} DOCKET NO. 110-11-94Excr
In the above-entitled cause, the Clerk will enter:

On motion to reargue, defendant contends that this Court overlooked
the failure of the trial court to conduct an adequate pretrial inquiry
regarding his request to fire his attorney. See United States v. Zillges,
978 F.2d 369, 372 (7th Cir. 1992) (on motion for substitute counsel, court
must engage in some inquiry as to reasons for defendant's dissatisfaction
with attorney); United States v. Torres-Rodriguez, 930 F.2d 1375, 1380
(9th Cir. 1991) (request for substitute counsel on morning of trial
requires inquiry into defendant's complaint). Although briefly addressed
in our opinion, we explain in more detail here that we do not reach this
issue.

On the morning of the jury draw, the day before trial, the State
objected to defendant presenting any witnesses because defense counsel had
failed to provide the State with a list of witnesses. Defendant blurted
out that he was not trying to delay the trial, that he had fired a previous
attorney for failing to properly represent him and that he wanted to fire
his attorney because he had done nothing. Between each statement, the
court told defendant that he was represented by counsel and should not be
speaking out in court. The court asked to hear from the attorney, and the
issue of the late witness list was then addressed. At defendant's request,
defense counsel then moved for a continuance to better prepare for the
trial as counsel had first met with defendant the day before. The court
denied the request for a continuance.

Defendant's request to fire his attorney was never ruled on by the
court and was never renewed orally or in writing. Where the defendant has
failed to pursue a ruling before the trial court, he has waived the motion
and any right to review. Harmony v. State, 594 A.2d 1182 (Md Ct. App.
1991) (offhand remark is insufficient to raise issue; court must decide
issue to preserve for appeal); see also State v. Hodge, 882 P.2d 1, 9 (one
preserves issue for appeal by invoking ruling from trial court). In all
other respects, the motion to reargue is denied.

BY THE COURT:

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Frederic W. Allen, Chief Justice (Ret.)
Specially Assigned

-------------------------------------------------------------------------
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-056

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 3, Essex Circuit

James H. Lund October Term, 1997

Alan W. Cheever, J.

Jan R. Paul, Essex County State's Attorney, St. Johnsbury, for
Plaintiff-Appellee.

Charles S. Martin of Martin & Associates, Barre, and James H. Lund,
pro se, Bradford, Pennsylvania, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse and Johnson, JJ., and Allen,
C.J. (Ret.), Specially Assigned

JOHNSON, J. Defendant appeals his conviction and sentence for having
sexually assaulted his stepdaughter. He claims that (1) the trial court
abused its discretion by denying his motion for a continuance on the eve of
trial; (2) his trial counsel's ineffectiveness prejudiced his defense and
thus requires reversal of his conviction; (3) the court erred in denying
his request to have an unnoticed witness testify to impeach the victim's
testimony; (4) the court erred in refusing to grant a mistrial when a
State's witness testified that defendant had refused, upon advice of
counsel, to give police a statement; and (5) the court erred in enhancing
his sentence based on his lack of remorse without first offering him
immunity from further prosecution in the event he prevailed on appeal and
obtained a new trial. Defendant also contends in a supplemental pro se
brief that (1) the trial court's failure to ensure that he was returned to
Vermont to allow adequate time to prepare a defense with his new counsel
violated his right to a fair trial; (2) the court's failure to conduct an
inquiry into defendant's pretrial request to dismiss

his new attorney was reversible error; and (3) the State misrepresented
relevant facts to the court and withheld exculpatory evidence, resulting in
unfavorable and prejudicial evidentiary rulings. We affirm without
addressing defendant's ineffective-assistance-of-counsel claims.

In November 1994, the court assigned defendant a public defender after
the State filed an information charging him with sexual assault on a minor.
Shortly thereafter, defendant was incarcerated in a federal prison in
Pennsylvania on federal firearms charges. For the most part, the sexual
assault case remained dormant until July 1995, when defendant himself filed
a formal request asking that he be tried within 180 days or that his case
be dismissed under the Interstate Agreement on Detainers Act. In August
1995, defense counsel filed a motion to dismiss for lack of a speedy trial.
The court denied the motion to dismiss, but set the matter to be tried
within 180 days. Eventually, the trial was set to begin on December 5,
1995. In October 1995, defendant sought appointment of new counsel, and
his attorney filed a motion to withdraw. On November 7, the court granted
the public defender's motion to withdraw and assigned a new attorney for
defendant. On December 5, the day the jury draw began, defendant's new
attorney sought a one-week continuance for further trial preparation. The
court denied the motion, and the trial began the next day. Following a
two-day trial, the jury found defendant guilty of sexual assault on a
minor.

I.
A.

To the extent that defendant is arguing that he was entitled to a
continuance because he had his first face-to-face meeting with his new
attorney only the day before the trial began, we find no error in the
court's decision to deny the continuance. Substitute counsel had nearly
five weeks to prepare for a relatively uncomplicated trial that would hinge
on whether the jury believed defendant or his stepdaughter. Indeed, at the
hearing on the first public defender's motion to withdraw, the public
defender assured the court that the case was a simple and straightforward
credibility contest between defendant and his stepdaughter, and that new
counsel

could prepare an adequate defense in the month remaining before trial. In
response to the prosecutor's concern that defendant was manipulating the
system by demanding a speedy trial and then firing his attorneys, the court
ordered that the new counsel be assigned and begin work on the case
immediately. The new attorney made no request for an extension of time
until the day of the jury draw, and even then he made no specific showing
of what he needed to do in the ensuing week to assure that he could prepare
an adequate defense. Further, defendant has not contended that telephone
or facsimile communication was unavailable during the month before his
trial began,(FN1) that face-to-face contact between him and his attorney was
necessary for preparation of his defense, or that such contact was
impossible, if necessary. Given these facts and circumstances, and the
last-minute timing of the request, we cannot conclude that the trial
court's decision to deny the motion to continue was a clear abuse of
discretion requiring reversal. See State v. Hanlon, 164 Vt. 125, 128, 665 A.2d 603, 605 (1995) (Supreme Court will not interfere with trial court's
ruling on motion to continue if there is any reasonable basis to support
it).

At the heart of both of defendant's briefs is his claim that he
received ineffective assistance of counsel. Because the record is
insufficient for this Court to assess whether his trial counsel adequately
defended him, this claim must be raised, if at all, in the context of a
petition for post-conviction relief. See State v. Judkins, 161 Vt. 593,
594-95, 641 A.2d 350, 352 (1993) (mem.) (generally, question of ineffective
assistance of counsel is limited to petitions for post-

conviction relief; unless question of ineffective representation is raised
at trial and ruled on by trial court, there is no record on which Supreme
Court can determine if trial judge erred in weighing competence of counsel
in context of specific errors asserted).

In his pro se supplemental brief, defendant suggests that the trial
court had an opportunity to review his counsel's effectiveness, but failed
to do so. According to defendant, because he sought to fire his second
attorney during jury selection the day before trial, the trial court was
required to make an inquiry regarding his attorney's effectiveness when he
attempted to fire him the day of the jury draw. We disagree. On the
morning of the jury draw, when defendant learned that his trial counsel had
failed to provide the prosecutor with a witness list, he blurted out that
he wanted to fire the attorney. The court would not tolerate defendant's
interruptions because he was represented by counsel. In the end, however,
the court allowed defense counsel to present all but one of the witnesses
he wanted to call. Thus, defendant's last-minute attempt to fire his new
attorney did not give the trial court an opportunity to determine whether
the attorney would be able to present an effective defense. See State v.
Ahearn, 137 Vt. 253, 264, 403 A.2d 696, 703 (1979) ("defendant's assertions
of insufficient preparation . . . do not serve as evidence of the facts as
he claims them to be"). Indeed, defendant acknowledges in his brief that
trial counsel's ineffectiveness became evident as the trial unfolded.
Because we have no record from which to judge defendant's claims of
ineffective-assistance-of-counsel, we will not consider them on direct
appeal from the proceeding in which the assistance was allegedly
ineffective. See In re Moskaluk, 156 Vt. 294, 298, 591 A.2d 95, 97 (1991);
cf. State v. Bacon, 163 Vt. 279, 296-97, 658 A.2d 54, 66 (1995)
(ineffective-assistance-of-counsel claims may be addressed on direct appeal
if claim was raised and adjudicated at trial).

II.

Defendant also argues that the trial court erred in denying his motion
to present the testimony of a sheriff who had interviewed the victim, and
that the prosecutor improperly took advantage of the excluded testimony in
closing argument. These arguments are based on the

following facts. In late October 1994, when defendant's stepdaughter
reported that defendant had sexually assaulted her, she also informed state
officials that both her mother and father had physically abused her and her
two younger sisters. In an effort to attack the stepdaughter's
credibility, defendant called to the stand a doctor who testified that he
had found no evidence of physical abuse after examining the younger girls
on November 2, 1994 at the request of the Department of Social and
Rehabilitation Services. Defense counsel also elicited testimony during
cross-examination of the stepdaughter that defendant had kicked one of the
younger sisters into a wall in July 1994. During the second day of trial,
defense counsel informed the court that he had just learned that in
November 1994 the stepdaughter told the investigating sheriff that
defendant had kicked her little sister into a wall only a few days earlier,
on October 29, 1994, not back in July as she had testified at trial.
Apparently, the stepdaughter's statement was recorded in the sheriff's
affidavit. Defense counsel wanted to have the sheriff testify to undercut
the stepdaughter's credibility. According to defense counsel, the
sheriff's testimony would suggest that the stepdaughter had changed her
story as to when the kicking incident occurred to lessen the impact of the
doctor's testimony that he had found no evidence of physical abuse on
November 2, 1994. This would further suggest that if the stepdaughter had
lied about defendant physically abusing her sisters, she probably also lied
about defendant sexually abusing her. Noting that defense counsel had
failed (1) to notify the State of its intention to call the sheriff even
though counsel had access to the sheriff's affidavit before trial, see
V.R.Cr.P. 16.1(c), and (2) to confront the stepdaughter with the prior
inconsistent statement during his cross-examination of her, see V.R.E.
613(b) (extrinsic evidence of prior inconsistent statement is not
admissible unless witness is afforded opportunity to explain or deny
statement), the court concluded that allowing the sheriff to testify at
that point in the trial would subvert the fair administration of justice
and the truth-seeking function of the trial.

Defendant's claims of error are unpersuasive because they exaggerate
the probative value of the excluded testimony. The stepdaughter testified
that she was uncertain as to what she told

investigating officers regarding the kicking incident. She was certain
only that defendant had kicked her little sister in the "rear end," causing
the "front side" of her to hit the wall. She stated that she had no idea
whether the child had been bruised as the result of the incident. Assuming
the jury would have accepted the sheriff's testimony that the stepdaughter
told him the younger girl had been kicked in October rather than July of
1994, the evidence would not have shown that the stepdaughter had lied
about the physical abuse of her sister, let alone the sexual abuse upon
which the trial was based. Nothing in the stepdaughter's testimony
suggested that the kicking incident would have necessarily left a bruise on
the child. The proffered evidence was not so probative that the court was
required to admit it notwithstanding defendant's failure to notify the
State of the sheriff's testimony and confront the victim with it. See
State v. Passimo, 161 Vt. 515, 521-22, 640 A.2d 547, 550 (1994) (trial
court's discovery sanctions, including exclusion of evidence, will not be
disturbed absent clear abuse of discretion; in assessing propriety of
exclusion sanction, defendant's right to offer testimony is weighed against
interest in fair and efficient administration of justice and potential
prejudice to truth-seeking function). Further, the prosecutor acted
properly in making her closing argument based on the evidence admitted at
trial, and defendant made no objection at that time. See State v. Cohen,
157 Vt. 654, 655, 599 A.2d 330, 331 (1991) (mem.) (when alleged error
consists of improper closing argument, plain error will be found only if
argument was so egregious that its prejudicial effect is obvious and
affirmance would result in miscarriage of justice).

Defendant also argues that even if we reject his argument that the
court erred by excluding the sheriff's testimony, defense counsel's
ineffectiveness in failing to notify the State and use the sheriff's
testimony to impeach the stepdaughter's testimony requires reversal of his
conviction. To the extent that this argument has any merit in light of our
conclusion that the excluded testimony lacked probative value, the argument
must be raised, if at all, in a PCR proceeding. Finally, the record does
not support defendant's accusations in his pro se brief that the State
intentionally misstated facts regarding the custody status of the
stepdaughter's younger

sisters and withheld exculpatory evidence regarding the stepdaughter's
statement to the sheriff and the doctor's physical examination of the
younger sisters. All of this information was available to the defense.

IV.

Next, defendant argues that the trial court erred in refusing to grant
a mistrial when a State's witness testified that defendant had refused to
speak to him upon advice of counsel. During direct examination of a police
officer investigating the stepdaughter's complaint, the prosecutor asked
the officer what happened when defendant arrived at the police barracks.
The officer responded: "He told me he had talked to a lawyer and he wasn't
going to give me a statement." Defense counsel immediately requested a
mistrial. The trial court denied the request, but sustained defense
counsel's objection to the answer and told the jury to disregard the answer
and consider it no further.

Again, we find no abuse of discretion. See State v. Jones, 160 Vt.
440, 449, 631 A.2d 840, 847 (1993) (trial court has discretion in ruling on
motion for mistrial, but should not grant motion unless moving party
establishes prejudice). The officer's testimony was elicited as part of an
on-going statement of the events that transpired at the time the complaint
was made, and was not intended as evidence of defendant's silence. See
State v. McCarty, 401 S.E.2d 457, 461 (W. Va. 1990) (officer's comment on
direct examination that defendant stated he would rather talk to attorney
was made in context of relating events that transpired on night of murder
and was not intended as reference to defendant's silence). Given this
fact, the brevity of the response, and the trial court's immediate curative
instruction, the statement did not compel a mistrial.

Lastly, defendant argues that under State v. Loveland, 165 Vt. 418,
427, 684 A.2d 272, 278 (1996) (defendants convicted of sex offenses must be
offered immunity against use of statements made at sentencing concerning
crimes for which they were convicted), the trial court was required to
offer him use immunity before enhancing his sentence for lack of remorse.

According to defendant, absent use immunity, he faced the impossible
dilemma of either maintaining his innocence in the hopes of a favorable
decision on appeal and a new trial, or admitting his guilt and showing
remorse, thereby taking the chance that his sentencing statements would be
used against him should he obtain a new trial.

Defendant's argument is unpersuasive in light of what transpired at
the sentencing hearing. Addressing defendant directly, the court offered
defendant use immunity in the event he wished to speak to evidence of other
crimes alluded to in the presentence investigation report. Defendant
responded: "I need no immunity for anything but I -- I would like to
address the issues." The defendant then presented a detailed monologue in
which he vigorously attacked the evidence against him and proclaimed his
innocence. During the monologue, he acknowledged that he could get off a
lot easier by accepting responsibility for the sexual assault of his
stepdaughter, but he refused to admit to a crime that he did not commit.
Thus, defendant made it absolutely clear that he would not accept any offer
of use immunity for any purpose, and that he would not be deterred from
proclaiming his innocence. Given these circumstances, the sentencing
court's failure to anticipate our holding in Loveland and offer defendant
use immunity for statements he chose to make concerning the crime for which
he was convicted was not reversible error. Cf. id. at 427, 684 A.2d at 279
(because defendant made no statement at his sentencing hearing and may have
been deterred from doing so by desire to preserve his privilege against
self-incrimination, sentence must be reversed).

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

--------------------------------------------------------------------------------
Footnotes

FN1. In his pro se brief, defendant cites a colloquy at a December 1994
status conference to demonstrate that the trial court was aware that
federal prisoners are limited to fifteen-minute telephone calls. The
court's brief and informal acknowledgement of restrictions on telephone
calls to federal prisoners does not demonstrate that defendant's new
attorney was unable to prepare an adequate defense. Even assuming that the
fifteen-minute limit exists and is strictly enforced without exceptions,
there is no indication as to the number of telephone calls allowed or
whether the limitations on telephone contact or other means of
communication made it impossible for defense counsel to prepare the case.

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