State v. Hendricks

787 A.2d 1270, 173 Vt. 132, 2001 Vt. LEXIS 379

• Court: Supreme Court of Vermont
• Decided: November 16, 2001
• Docket: 00-205
• Status: Published

Opinions

Amestoy, C.J.

Defendant Thomas Hendricks appeals a jury conviction for second degree domestic assault. Defendant claims that the trial court erred in: (1) rejecting the plea agreement; (2) taking judicial notice of family court proceedings between defendant and the victim; (3) admitting prior bad acts evidence involving the same victim; (4) permitting the jurors to take notes; and (5) issuing jury instructions. Defendant also claims the trial court failed to give him credit for time spent in custody. We affirm with respect to all claims except the last which is moot.¹

This case arises out of a lengthy and volatile relationship between defendant and Michele Lee (Ms. Lee or the victim), defendant’s former girlfriend of fourteen years. Defendant and Ms. Lee cohabitated, worked together and had two children. On January 25, 1999, during an argument, Ms. Lee claimed that defendant grabbed her by the throat and banged her head against the wall. She stated that when she fought back, defendant pushed her into the floor, and that when he let her go, she kicked him in the groin. Ms. Lee left the residence, but returned later to pick up medication and clothing. When she returned, she stated that defendant knocked her down to the ground and choked her. A police officer who interviewed Ms. Lee at the hospital emergency room noted that she was “visibly upset,” and that she had bruises on her neck and numerous abrasions on the right comer of her mouth and on the right side of her back.

Defendant’s son told the police officer that he had observed the couple fighting, and that he had intervened to separate them. Defendant, however, stated that Ms. Lee had kicked him in the groin, bit his finger and hit him in the head, and that he had merely pushed her away in self-defense. Defendant had “a small laceration to the left pinky finger and a lump on the top left side of the head.”

The day after the alleged assault, defendant was arraigned on a charge of second degree aggravated domestic assault, in violation of 13 V.S.A. § 1044(a)(2).² In April 1999, while the case was pending, defendant was arraigned on new charges, including one felony count violation of an abuse prevention order, and two misdemeanor counts for violating his conditions of release. Defendant initiated contact with Ms. Lee by sending her a thank you card.

On September 15, 1999, pursuant to a plea agreement, defendant entered a guilty plea to the felony charge for violating the relief from abuse order, and to one misdemeanor count for violating his conditions of release. The State agreed to dismiss the aggravated domestic assault charge and the second misdemeanor charge of violation of conditions of release. The State also agreed to recommend a sentence of eighteen to forty-two months, all suspended except sixty’ days. Under the agreement, defendant would, at sentencing, be free to argue for a lesser sentence.

On September 24, prior to the sentencing hearing, defendant was charged with three felony violations of the abuse prevention order and one violation of conditions of release. On September 15, defendant had approached Ms. Lee outside of family court. The following day, the rear window of Ms. Lee’s friend’s automobile was smashed while he was visiting her at her home. Although there is no evidence that. defendant smashed the window, the next day defendant approached Ms. Lee at her home and said, “Thank you for leaving your shades up so I know that he wasn’t there.” Defendant subsequently contacted Ms. Lee by telephone on more than one occasion, sent her flowers and a marriage application, and approached her at her home several times.

At the October 1 sentencing hearing, the State attempted to rescind its plea agreement. Defendant argued that the State and the court were bound by the terms of the September 15th agreement. The court refused to allow the State to withdraw from the plea agreement, but noted, “I haven’t accepted the plea agreement yet. I took [defendant’s] plea, deferred acceptance of the agreement and sentencing until we had the hearing.” The court also informed defendant, prior to the start of the hearing, that it had taken judicial notice of family court files concerning defendant and the victim. At the conclusion of the hearing at which both defendant and the victim testified, the court rejected the plea agreement. The court gave defendant the opportunity to withdraw his plea, which he chose to do, and the aggravated domestic assault charge was set for trial.

At trial, the court issued preliminary instructions to the jury on the essential elements of the offense, and instructed them on their ability to take notes during the course of the trial. Defense counsel did not object to either charge. The court provided jurors with pads and pencils, permitted the jurors to take notes and use them during deliberations. The court asked the jurors to destroy these notes after trial.

Following a one-day trial, at which the jury heard testimony from a police officer, the victim, defendant, defendant’s son and a neighbor, defendant was found guilty of second degree domestic assault.

I.

Defendant first contends that he is entitled to specific performance of the plea agreement under V.R.Cr.P. 11. Criminal Rule 11(e)(2) provides:

[T]he court, before entry of the plea, may accept or reject the agreement, or defer its decision as to acceptance or rejection until there has been an opportunity to consider the presentence report. The plea agreement shall not be binding upon the court nor shall it limit the court in the judgment and sentence to be imposed unless the court accepts the plea agreement under subdivision (e)(3) of this rule.

Rule 11(e)(3) requires the court, upon accepting the plea, to “inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or a less onerous disposition.” V.R.Cr.P. 11(e)(3). The next subsection provides that:

If the court rejects the plea agreement or defers decision upon it, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is or may not be bound by the plea agreement, pursuant to Rule 32(d) afford a defendant who has already pleaded the opportunity to then withdraw his plea. . . .

V.R.Cr.P. 11(e)(4).

Defendant contends that the court accepted the plea agreement at the September 15th hearing. However, the court, after finding the pleas to be knowing and voluntary, stopped short of accepting and entering judgment on them. Defendant cites to the court comment that the State’s sentence recommendation is “the worst that could happen to you at the sentencing hearing,” in order to establish that the pleas were accepted. However, the court also stated “[t]his isn’t settled until we come back and do the sentencing,” and thereby clearly deferred acceptance pending a sentencing hearing.

We have previously rejected the argument that acceptance of the plea agreement must be presumed unless the court explicitly rejects the agreement or defers its decision. State v. Delisle, 162 Vt. 293, 300, 648 A.2d 632, 641 (1994). While we reiterate that it is “better practice” for the court — when it intends to defer a decision as to rejection or acceptance of a plea agreement until there has been an opportunity to consider the presentenee report — to explicitly say so, we have not always required courts to follow subdivision 11(e)(4) to the letter. See e.g., id. On the basis of this record, we cannot find that the court accepted the plea agreement, nor will we presume, as a matter of law, that it did. Accordingly, we reject defendant’s assertion that he is entitled to specific performance of a plea agreement that the court did not accept.

n.

Defendant next contends that the trial court erred because, prior to sentencing, it reviewed family court files concerning defendant and the victim, “without prior notice to the parties.”' Defendant’s claim is premised on an inaccurate factual representation. In fact, the court specifically advised the State and defendant that it would be reviewing relevant family court files prior to sentencing. The court stated,

[y]ou should also know . . . I’ve also called for the Family Court files up here so I’d have a chance to look at those records .... the rule requires that you know whatever it is I’m looking at ... . you may want to take a look at this, unless you’re aware of what’s in there. ... If you do want to take a look at them, and then because of what’s in there you want more time, you can tell me that too.

Defendant concedes that he neither accepted the court’s invitation to take the time to review the materials, nor objected to the court’s review of them. Because defendant failed to object, 'he rnhst demonstrate that the court committed plain error in order to prevail. V.R.Cr.P. 52(b); State v. Forant, 168 Vt. 217, 219, 719 A.2d 399, 401 (1998). “Plain error will be found only in rare and extraordinary cases where the error is obvious and strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice.” State v. Streich, 163 Vt. 331, 353, 658 A.2d 38, 53 (1995).

Defendant’s plain error theory apparently rests on the assumption that the court’s review of the family court files caused it to reject a plea agreement that it was otherwise bound to accept. Even if we assume review of the family court files was error, it cannot plausibly be maintained that the error was “plain” where the court was not bound to accept the plea agreement in the first instance. Moreover, there was ample evidence, apart from the family court records — including the victim’s testimony, defendant’s criminal record, and the fact that he was charged with felony violation of an abuse prevention order and violation of his conditions of release between the plea and sentencing hearings — to support the court’s decision to reject the plea agreement. Defendant’s claim of plain error is without merit.

III.

A. Bad Acts Evidence

Defendant next claims that the court erred in admitting prior bad acts evidence that should have been proscribed under V.R.E. 404(b) and 403. “We will reverse the trial court’s decision to admit this evidence only if the court withheld or abused its discretion. . . and a substantial right of defendant was affected by the alleged error.” State v. Kelley, 163 Vt. 325, 328, 664 A.2d 708, 710 (1995).

Prior to trial, the State gave notice to defendant of its intent to utilize prior bad act evidence pursuant to V.R.E. 404(b). Specifically, the State sought to use two previous incidents of physical violence between defendant and the same victim. One incident (the 1993 assault) resulted in defendant’s conviction, and satisfied one element of the current charge under 13 V.S.A. § 1044(a)(2), requiring a prior domestic assault conviction. The second incident (the 1997 assault) constituted uncharged misconduct alleging that defendant assaulted the victim in front of their daughters by beating her head into the ground. The State asserted that the evidence of defendant’s prior bad acts of domestic violence was admissible to show the context in which the violence between defendant and Ms. Lee took place, and as a response to defendant’s anticipated claims of self-defense and accidental injury. Defendant filed a motion in limine to bar the use of the uncharged misconduct evidence. While conceding that “[tjhere will be a defense that approaches a self-defense concept,” defendant claimed the introduction of prior uncharged misconduct evidence would impermissibly establish that defendant had a propensity for assaultive conduct. Prior to the start of trial on November 4, 1999, the court heard argument from the parties on defendant’s motion in limine, and denied defendant’s motion, thus permitting the State to introduce evidence of the 1993 and 1997 incidents.³

. In denying defendant’s motion, the trial court explained, “I think those two prior incidents, aside from the fact one is really an element of the crime, the conviction itself, but more than the conviction the facts as described to me now . . . are admissible under Sanders for context purposes.” We agree. In State v. Sanders, 168 Vt. 60, 62, 716 A.2d 11, 13 (1998), we held that prior domestic assaults may be properly admitted to give context to a domestic violence charge because “[a]llegations of a single act of domestic violence, taken out of its situational context, are likely to seem incongruous and incredible to a jury.” (internal citations omitted).

This case presents exactly the circumstances to which the reasoning of Sanders applies. The jury was presented with a single-act of domestic violence.. Defendant asserted that his actions during the incident were in self-defense, and that injuries to the victim occurred either in defending himself or as a result of the victim’s previous accidental fall.

In reviewing the trial court’s admission of evidence under Rule 404(b), we must determine whether the evidence was relevant and material to the action. Sanders, 168 Vt. at 62, 716 A.2d at 13. Here the introduction of two prior instances of defendant’s abuse of the same victim was not to show defendant’s propensity to commit such abuse, but rather, “to provide the jury with an understanding of defendant’s actions on the date in question.” Id.

Upon deciding the evidence of prior bad acts is relevant and material, we must then determine whether the trial court abused its discretion in deciding that the introduction of such evidence was more probative than prejudicial under V.R.E. 403. Although “[ejvidence tending to inculpate the defendant always carries with it some prejudice,” Kelley, 163 Vt. at 329, 664 A.2d at 711, the trial court did not abuse its discretion by deciding that the evidence in question was more probative than prejudicial.

B. Bad Acts Instruction

Defendant also claims that the court did not give a proper limiting instruction regarding the prior bad acts. Specifically, defendant contends that the court did not properly instruct the jury: (1) that the State bore the burden of proving by a preponderance of the evidence that defendant committed the prior bad acts; (2) that the jury may not consider the evidence as tending to show defendant’s character, or that he acted in conformity with that character in committing the alleged crime; or (3) the limited purpose for which the prior bad acts were admitted.

The court offered to “take any . . .language” suggested by counsel at the charge conference for' the final charge. In its final charge, the court instructed:

Evidence has been introduced in this case concerning allegations of prior violent incidents between the Defendant and [victim]. You should distinctly understand that the Defendant is not on trial for any actions other than the charged offense. This other evidence was permitted to be introduced only for you to consider the context of the relationship between the Defendant and [victim] out of which the present allegations arose.

Because defendant did not object to the court’s instruction after the charge, nor request specific language, we review the court’s determination under the plain error standard. V.R.Cr.P. 52(b); see also State v. Holcomb, 156 Vt. 251, 256, 590 A.2d 894, 897 (1991) (“failure to give a limiting instruction ..., in the absence of a request or objection, will be grounds for reversal only on a finding of plain error”).

In State v. Wheel, 155 Vt. 587, 603, 587 A.2d 933, 943 (1990), this Court adopted the United States Supreme Court holding that “evidence of prior bad acts may be admitted for the purposes stated in Rule 404(b) without a preliminary finding by the trial court that the act actually occurred.” (citing Huddleston v. United States, 485 U.S. 681, 688 (1988)). In fact, the trial court’s determination is limited to finding “whether there is sufficient evidence for the jury to reasonably conclude that the prior act took place,” not that “the act took place by a preponderance of the evidence.” Id. at 603-04, 587 A.2d at 943 (citing Huddleston, 485 U.S. at 690). There is thus no requirement that the State prove the commission of the prior acts by a preponderance of the evidence.

The trial court’s charge on the prior bad acts evidence limits its use to “the context of the relationship between the Defendant and [victim] out of which the present allegations arose.” Although the court did not specifically include language regarding character evidence, its charge defined the limited scope for which the evidence was to be used. We find no plain error here, where the court admitted prior bad acts evidence to show context, and issued limiting instructions requiring jurors to consider it for that purpose alone. See Holcomb, 156 Vt. at 256, 590 A.2d at 897 (general charge limiting consideration of the alleged act is sufficient).

IV.

Defendant next argues that it was plain error for the trial court to permit the jury to take notes. As both parties concede, there is no statute, judicial decision or procedural rule in Vermont expressly prohibiting or permitting juror note-taking. However, we note that a majority of jurisdictions “have held that the decision to permit jurors to take notes should be left to the sound discretion of the trial court.” People v. Hues, 704 N.E.2d 546, 548 (N.Y. 1998) (listing numerous federal and state appellate court decisions); see also Corti v. Lussier, 140 Vt. 421, 423, 438 A.2d 1114, 1115 (1981) (noting endorsement of juror note-taking by the American Bar Association, Standards for Criminal Justice, Standard 15-3.2 and Comment, Taking Note of Note-Taking, 10 Colum. J. L. & Soc. Prob. 565, 587 (1974)).

In its decision to permit juror note-taking at the discretion of the trial court, the Hues court required cautionary instructions both at the start and conclusion of a trial, reminding jurors about the potential distraction of taking notes, and over-reliance on one’s notes or on the opinion of another juror who took notes. Hues, 704 N.E.2d at 549-50. The court further suggested that instructions should remind the jury of the availability of the court’s verbatim transcript as a preferable record. Id. at 550.

In the instant case, the court’s preliminary and closing instructions included the recommendations suggested by the court-in Hues. The court stated:

You may take notes during the trial if you wish. Pads and pencils will be made available. You may also have those notes with you when you deliberate at the end of the case; however, please be cautious of the following: [i]t is possible that you may miss hearing some testimony if taking notes at the time. Watching a witness as he or she testifies and noting the demeanor of the witness is something you may consider in determining the credibility of that witness. Lastly, when in deliberations at the end of the case, do not rely on the recollection of a juror who took notes about the testimony of a witness solely because the juror took notes. As we all know, notes can be wrong. Keep in mind that every word spoken in the courtroom is recorded verbatim and can be replayed for you during deliberations if necessary.

There was no error, much less plain error.

V.

In his final claims, defendant contends that the court erred in refusing to instruct the jury with regard to the credibility of police witnesses, and in instructing the jury on the essential elements of the offense prior to trial. We note, in evaluating these claims, that jury instructions fall within the ambit of the trial court’s discretion. Knapp v. State, 168 Vt. 590, 591, 729 A.2d 719, 720 (1998) (mem.).

At trial, defendant requested an instruction as to the credibility of a police officer’s testimony. The court declined to instruct the jury specifically as to the weight to be accorded to a police officer’s testimony, but included in its charge language regarding the credibility of witnesses generally. It seated:

It is not the quantity of witnesses that should determine your decision, but rather the quality of their testimony. You can believe all that a witness says or you can believe part of it or you can disbelieve all of it. . . . Keep in mind that how much weight to give the testimony of any witness is entirely your decision.

Defendant did not object to this instruction after the charge. We find no abuse of discretion in the court’s charge to the jury regarding the credibility of witnesses.

Defendant cites no authority for the proposition that it is improper for a court to issue preliminary instructions to the jury on the essential elements of the offense, and concedes that due to his failure to object, we must review the court’s instruction for plain error. Defendant’s argument does not raise a meritorious claim of error, much less plain error.

Affirmed.

1 At oral argument, the State conceded that the trial court had failed to award defendant credit for time served to which he was entitled pursuant to 13 V.SA. § 7031(b), and subsequently the parties entered into a stipulation in which defendant was awarded appropriate credit.

2 Defendant had a prior domestic assault conviction, entered in November 1993, and two convictions for violation of an abuse prevention order, in 1993 and 1994, incidents all involving Ms. Lee.

3 Defendant stipulated to the 1993 conviction of domestic assault but sought to bar testimony about the facts.