State v. Hayes

State v. Hayes (2000-331); 172 Vt. 613; 783 A.2d 957

[Filed 28-Aug-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-331

                               MAY TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 1, Windham Circuit
Christopher S. Hayes	               }
                                       }	DOCKET NO. 42-11-99 Wmcr

                                                Trial Judge: David T. Suntag

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


       Defendant appeals his conviction by jury of second-degree aggravated
  domestic assault,  arguing that the information was defective, that the
  absence of a court-ordered forensic examination  prevented him from
  obtaining a fair and fully informed sentencing decision, and that the trial
  court  violated his privilege against self-incrimination by failing to
  provide him with judicial use immunity  before basing its sentencing
  decision on his refusal to acknowledge criminal responsibility.  We  reject
  each of these contentions and thus affirm the conviction and sentence.

       Defendant was charged in separate informations with simple assault
  against his girlfriend,  based on a November 7, 1998 incident, and
  second-degree aggravated assault against the same  victim, based on a
  January 9, 1999 incident.  The charges were joined at a single trial, after
  which  defendant was acquitted of the simple assault charge, but convicted
  of the second-degree aggravated  assault charge.

       On February 18, 2000, following completion of the pre-sentence
  investigation (PSI) report, the  sentencing hearing commenced.  The hearing
  was continued after the trial court, at the request of  defense counsel and
  with the acquiescence of the State, ordered that defendant be given a 
  psychological evaluation at the Woodstock Correctional Facility.  Defendant
  was held without bail  pending resumption of the hearing.  When the hearing
  resumed on April 7, 2000, the court  discovered that the evaluation had
  never been performed.  Apparently, the Department of Corrections  contended
  that the correctional facility was not responsible for providing
  "forensic," as opposed to  "treatment-oriented," evaluations, and took the
  position that a forensic evaluation would have to be  provided by an
  outside psychiatrist.  Upon inquiry from the court, the State stated that
  it did not  oppose an evaluation, but would not seek funds to have one
  done.  Defense counsel stated that her  client had been incarcerated since
  mid-February and wanted the case resolved.  She further indicated  that
  defendant was "hopeful" that he would obtain a probationary sentence, as
  had been  recommended in the PSI report.  The court then engaged defense
  counsel and defendant in an 

 

  extended colloquy in which the court repeatedly asked defendant if he
  wanted to proceed without the  evaluation and repeatedly warned defendant
  that the court was not restricted to the recommendation  contained in the
  PSI report but rather could sentence defendant up to the full extent
  permitted under  the law.  After consulting with his counsel on several
  occasions, defendant formally waived his right  to an evaluation and
  unequivocally stated that he wanted the court to proceed with sentencing 
  without the benefit of the evaluation.  The court then heard testimony and
  sentenced defendant to  one-to-five years to serve.

       On appeal, defendant first argues that the Department of Corrections'
  refusal to honor the  court's order for a psychiatric evaluation violated
  his right to a fair and fully informed sentencing  decision.  According to
  defendant, his agreement to proceed without an evaluation may have been 
  knowing and intelligent, but it was not voluntary because he could not have
  waived a right he had  already been denied.  In defendant's view, he had no
  choice but to waive the evaluation.

       We cannot agree with defendant's characterization of the stipulation. 
  Although he was  represented by counsel, defendant never argued before the
  trial court, as he does here on appeal, that  the Department had a
  statutory duty to comply with the court-ordered evaluation.  Rather than 
  contest the Department's position concerning its responsibility to provide
  the evaluation, defendant  made the conscious, voluntary choice to forego
  the evaluation, in the hope that the court would  follow the recommendation
  of the PSI report.  His gamble did not pay off, however, and he now  claims
  that proceeding without the evaluation deprived him of a fair and fully
  informed sentencing  hearing.  Based on the facts recounted above, we
  conclude that defendant waived this argument by  voluntarily agreeing to
  proceed with sentencing without the evaluation.  See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (determining whether waiver is knowing, intelligent,
  and voluntary depends on  particular facts and circumstances), overruled on
  separate grounds by Edwards v. Arizona, 451 U.S. 477 (1981).  Not only did
  defendant consciously elect to go forward without the evaluation, he never 
  suggested that the PSI report was in any way incomplete, inaccurate, or
  insufficient.  Indeed, there is  no indication that the trial court
  possessed inadequate information about defendant's life,  background,
  family, past conduct, or criminal record to reach a fully informed
  sentencing decision.

       Next, defendant argues that the sentencing court violated his
  privilege against self-incrimination - and this Court's holdings in State
  v. Cate, 165 Vt. 404, 683 A.2d 1010 (1996) and  State v. Loveland, 165 Vt.
  418, 684 A.2d 272 (1996) - by insisting that he retract his trial testimony 
  as a condition of granting him probation.  In Cate, the defendant
  challenged a probation condition  requiring him to sign an acknowledgment
  of responsibility for sexually assaulting the victim.  We  held that a
  defendant cannot be forced to incriminate himself by admitting criminal
  responsibility as  a condition of probation unless he first received
  immunity from any future criminal prosecution  stemming from the admission. 
  Cate, 165 Vt. at 415, 417, 683 A.2d at1018, 1019.  We further held  that if
  the prosecutor did not eliminate the risk of future prosecution derived
  from statements  required for successful completion of rehabilitative
  probation, judicial use immunity would make  such statements inadmissible
  against the probationer at any subsequent criminal trial.  Id. at 417, 683 A.2d  at 1019.  In Loveland, 165 Vt. 418, 426-27, 684 A.2d 272, 278-79
  (1996), we acknowledged  that Cate dealt with a very narrow situation, but
  nevertheless extended its holding to apply to 

 

  statements made by sex offenders at sentencing.  We concluded that if such
  statements were required  for successful completion of probation, they
  would be inadmissible at any subsequent criminal  proceeding.  Id. at 427,
  684 A.2d  at 278.  In that case, we remanded the matter for resentencing 
  because the defendant's desire to protect his privilege against
  self-incrimination may have deterred  him from making a statement at his
  sentencing hearing concerning his willingness to accept  responsibility for
  his crime and thus successfully engage in a probationary sex offender
  treatment  program.  Id. at 427, 684 A.2d  at 279.

       Here, defendant stated at his sentencing hearing that he was not in
  denial with respect to his  conduct toward his girlfriend.  When the court
  asked defendant to clarify what he meant when he  said he was not in denial
  about what had happened, defendant's response made it clear that he was 
  not changing his claim, made at trial, that he had acted in self-defense. 
  Indeed, defendant went on to  describe his girlfriend as "abusive" toward
  him, acknowledging only that he should have walked  away from the
  situation.  In rendering its sentence, the trial court noted that defendant
  would not be a  good candidate for a rehabilitative program because of his
  continuing denial of any criminal  responsibility for the assault on his
  girlfriend.  Defendant now argues for the first time on appeal that  the
  court's reasoning in not giving him a probationary sentence, combined with
  its failure to offer  him judicial use immunity, violated Cate and Loveland
  and his privilege against self-incrimination.

       We cannot accept defendant's position, which, in effect, would allow
  defendants to "sandbag"  the trial court by saying nothing about their
  self-incrimination concerns at sentencing and then later  arguing on
  appeal, if they were not satisfied with the sentence imposed, that they
  would have made  statements accepting criminal responsibility had they been
  given judicial use immunity.  Loveland  and Cate were issued more than
  three and one-half years before the sentencing hearing in this case.   They
  clearly signaled that defendants who face a choice between the risk of a
  perjury conviction and  candor at sentencing might, in the proper
  circumstances, obtain judicial immunity to protect them.   But there is not
  the slightest indication that defendant, who engaged in a lengthy
  allocution at his  sentencing hearing, amended his statements in fear of
  being charged with perjury.  If he or his  counsel had such concerns, or if
  he or his counsel had doubts about the applicability of Loveland in  this
  situation, see State v. Gorbea, 169 Vt. 57, 61-62, 726 A.2d 68, 71 (1999)
  (reaffirming general  rule that sentencing court may properly consider
  defendant's failure to accept responsibility for  offense without violating
  his privilege against self-incrimination, and noting that Loveland holding
  is  limited to sex offenders and does not apply unless defendant is exposed
  to possible perjury charges  by trial court explicitly conditioning
  probation upon admission of criminal responsibility), he should  have made
  those concerns known to the court at the sentencing hearing.  At that
  point, the court  could have made a ruling, and defendant would have known
  where he stood.  As it stands, defendant  cannot raise for the first time
  on appeal legal issues that he could have presented before the trial court 
  for consideration.  See State v. Ruud, 143 Vt. 392, 396, 465 A.2d 1377, 1379 (1983) (absent  extraordinary circumstances, matters raised for first
  time on appeal will not be considered).

       Even if we were to reach the merits of defendant's claims, we doubt
  that Cate or Loveland  would help him.  Those decisions dealt with
  defendants convicted as sex offenders who would be  required to admit to
  their criminal behavior in any probationary or correctional treatment
  programs.

 

  We expressly limited Loveland, the sentencing decision, to sex offenders
  because we were not  convinced that the "hard testimonial choice" was
  present in other circumstances.  165 Vt. at 427 n.*,  684 A.2d  at 278 n.*. 
  Beyond arguing that any defendant who testifies at trial may have
  difficulty  showing remorse and responsibility to influence sentencing,
  defendant fails to demonstrate that the  dynamics of sentencing for the
  offense involved here created the hard testimonial choice.

       Finally, defendant argues that the information charging him with
  second-degree domestic  assault was jurisdictionally defective because it
  omitted the mens rea element, and thus could not  support his conviction. 
  See State v. Kreth, 150 Vt. 406, 408, 553 A.2d 554, 555 (1988) (information 
  that omits essential element of crime charged is defective and cannot serve
  as basis of conviction).   We find no merit to this argument.  The written
  information may have omitted the mens rea element  and added unnecessary
  surplusage, but the error was corrected at trial with no apparent prejudice
  to  defendant.  The trial court discussed the problems in the information
  with counsel at the jury draw.   An orally amended information, which
  struck the surplusage and included the mens rea element, was  read to and
  accepted by both counsel and was read to the jury panel prior to voir dire. 
  Defendant did  not object to the amendment either at the jury draw or any
  time thereafter.  Further, the court's  preliminary and final instructions
  to the jury included the mens rea element and defined it.   Defendant has
  utterly failed to demonstrate that the error in the initial written
  information resulted in  him not being informed of the nature of the
  accusation against him or not being able to intelligently  prepare his
  defense.  See id. at 407-08, 553 A.2d  at 555; see also State v. Roy, 151
  Vt. 17, 28, 557 A.2d 884, 891 (1989).

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice