Great trial for law enforcement 

http://timesargus.com/article/20160427/NEWS01/160429646/0/SEARCH
This was a great jury trial (conviction) for our law enforcement. An armed stand-off where the defense blamed law enforcement response. Defendant pulled gun just days after his girlfriend allegedly killed four people in Washington County. Glad I could prosecute this case.

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Acknowledging victims is just the beginning

This week, April 10 – 16 is National Crime Victims’ Rights Week. At the State’s Attorney’s Office we are regularly confronted with issues facing crime victims. We see and hear about the trauma inflicted upon victims. We meet with them and explain what they can expect from the criminal justice process. We provide available services, ask how they want the case to resolve, and work toward having the defendant held accountable for their crime(s).
The cases include domestic violence, sexual assaults, non-sexual assaults and offenses, child abuse, theft, property crimes and other financial crimes.
Our advocates, investigators and attorneys work diligently each day to help victims. Advocates Holly Leach and Kathy Daub-Stearns, and officers Ron DeVincenzi and Roland Tousignant are dedicated to helping victims and assisting the attorneys with the prosecution of these cases. 
Clearly those charged with crimes are protected by the U.S. and Vermont Constitutions, local law and the Courts. But many correctly point out that victims receive far less rights. 

The following are common sense proposals that we should be pursuing for the State’s victims:

The Vermont Supreme Court has lauded the efforts of the legislature to ensure that a Defendant receives a speedy trial when they are held without bail. There should be legislation for sensitive victims that provide expedited resolutions to their cases. Children who are the victims of sexual assault are the most vulnerable of all victims involved in the criminal justice system should receive a speedy resolution to their criminal case. 
Consider creating sentencing guidelines in the larger criminal justice reform efforts. Guideline sentences require uniformity of sentencing throughout the state and can specifically require consideration of how the defendant’s criminal activity has effected the victim. Victims deserve to have a realistic impact in sentencing. Additionally, guidelines can also ensure a defendant is treated fairly.

Create better and broader rules (that pass constitutional review) that will limit the pre-trial release of harmful violent defendants that contact victims after their initial release. Currently, Defendants in Vermont who are charged with violent crimes are generally cited into court then are released. Many times the Defendant is required to stay away from their victim, but make contact anyway. They may be re-cited or arrested for this conduct, than released again. We need laws and procedures that encourage, not discourage victims from reporting abuse.

We should not pass legislation as some have recently proposed that forfeits the victims’ rights funding.

Currently our legislature is determining whether to update the Stalking statutes. This legislation is important. Many criminal acts are being accomplished by the use of computers, cell phones, digital cameras and social media. Old laws can’t protect victims as effectively because when those laws were created our current technology did not exist. Unfortunately some abusers stalk their victims. It happens in high schools, college campuses and amongst those dating and married and other relationships. The traditional stalking laws do not fully protect victims in 2016.

Each year the National Crime Victim’s Rights week has a theme. This year the theme is establishing trust with victims.

Victims of serious crime need to know that their voices will be heard and their participation in the criminal justice system will be meaningful for them. That includes receiving important services and knowing that those convicted are being held accountable, truly accountable for the trauma they have caused.

We need to maintain a common sense approach to crime that sends the message, Vermont supports victims. 
Daniel M Cavanaugh

victims’ rights 2
Daniel M. Cavanaugh is the Chief Deputy State’s Attorney in Washington County. The opinions expressed are his own and do not represent a policy statement for the State’s Attorneys of Vermont in general or the Washington County State’s Attorney in particular.

Sent from my iPhone 

This week, April 10 – 16 is National Crime Victim Rights’ Week. At the State’s Attorney’s Office we are regularly confronted with issues facing crime victims. We see and hear about the trauma inflicted upon victims. We meet with victims and explain what they can expect from the criminal justice process. We provide available services,  ask how they want the case to resolve,  and work toward having the defendant held accountable for their crime(s).

Our advocates, investigator and attorneys work diligently each day to help victims. Holly Leach, Kathy Daub-Stearns, Ron DeVincenzi and Roland Tousignant are dedicated to helping victims and assisting the attorneys with the prosecution of these cases. 

Clearly those charged with crimes are protected by the U.S. and Vermont Constitutions, local law and the Courts. But many correctly point out that victims receive far less rights. 

 The following are common sense proposals that we should be pursuing for the State’s victims:

  • The Vermont Supreme Court has lauded the efforts of the legislature to ensure that a Defendant receives a speedy trial when they are held without bail.  There should be legislation for sensitive victims that provide expedited resolution to their cases. Children who are the victims of sexual assault are the most vulnerable of all victims involved in the criminal justice system should receive a speedy resolution to their criminal case. 
  • Consider creating sentencing guidelines in the larger criminal justice reform efforts. Guideline sentences require uniformity of sentencing throughout the state and can specifically require consideration of how the defendant’s criminal activity has effected the victim. Victims deserve to have a realistic impact in sentencing. Additionally, guidelines can also ensure a defendant is treated fairly.
  • Create better and broader rules (that pass constitutional review) that will limit the pre-trial release of harmful violent defendants that contact victims after their initial release. Currently, Defendants in Vermont who are charged with violent crimes are generally cited into court then are released. Many times the Defendant is required to stay away from their victim, but make contact anyway. They may be re-cited or arrested for this conduct, than released again. We need laws and procedures that encourage, not discourage victims from reporting abuse.
  • We should not pass legislation as some have recently proposed that forfeits the victims’ rights funding.

Currently our legislature is determining whether to update the Stalking statutes. This legislation is important. Many  criminal acts are being accomplished by the use of computers, cell phones, digital cameras and social media. Old laws can’t protect victims as effectively because when those laws were created our current technology did not exist. Unfortunately some abusers stalk their victims. It happens in high schools, college campuses and amongst those dating and married and other relationships. The traditional stalking laws do not fully protect victims in 2016.

Each year the National Crime Victim’s Rights week has a theme. This year the theme is establishing trust with victims.

Victims of serious crime need to know that their voices will be heard and their participation in the criminal justice system will be meaningful for them. That includes receiving important services and knowing that those convicted are being held accountable, truly accountable for the trauma they have caused.

We need to maintain a common sense approach to crime that sends the message, Vermont supports  victims.

Daniel M Cavanaugh

victims' rights 2

Daniel M. Cavanaugh is the Chief Deputy State’s Attorney in Washington County. The opinions expressed are his own and do not represent a policy statement for the State’s Attorneys of Vermont in general or the Washington County State’s Attorney in particular.

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Character Evidence in Criminal and Civil Cases

When Character Evidence is admissible in Civil and Criminal cases
 

This article will address the admissibility of character evidence for parties in civil and criminal cases. While rule 90.404 of the Florida Rules of Evidence restricts the admissibility of character evidence, there are limited instances where character evidence is allowed.

 

Can Character Evidence be admitted in a Civil Case? Generally No

 

Character evidence is only permitted in civil cases when “character” is an essential element of the case.[i] Reputation evidence for this proof can be used but admitting specific instances of conduct is a far more logical way of presenting the evidence. That being said, it is the very rare cause where character is an essential element of the case. Defamation, Libel, Negligent Entrustment of a Motor Vehicle are all examples of causes of action that put character in issue.[ii] For example, Mr. Jones accuses Mr. Smith of being a thief. Mr. Smith sues Mr. Jones for defamation. If Mr. Jones claims truth as a defense to an action in defamation, then he is entitled to introduce evidence of Mr. Jones’ character as a thief. When defending against the elements of the instant case, specific instances are admissible to justify the defense (or the allegations of him being a thief).[iii]

 

 

 

Is Character Evidence allowed in Criminal Cases? Sometimes

 

In criminal actions, the Defendant can introduce character evidence when it is directed at a trait relevant to the crime. On the other hand, the prosecution cannot introduce evidence meant to prove the bad character of Defendant (or anyone else). The prosecutor can, however, rebut the Defendant’s evidence. For example, if a Defendant has been charged with a theft, it would be relevant for him/her to show that s/he has a reputation for honesty because it is inconsistent with the Defendant’s character to commit a theft crime.[iv] The character trait has to be relevant to the charge. Mere introduction of good character in general is not allowed. [v]

 

 

 

A Defendant can also introduce evidence regarding a relevant trait of the victim (with some exceptions) and the prosecutor can rebut that evidence. [vi] Evidence of victim’s character can be proven by both reputation evidence and by specific instances of conduct.[vii]

 

The prosecution is permitted to offer evidence of other crimes, wrongs or acts to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, [viii] because it is probative of a material issue and is not directed at bad character or propensity.[ix] While this evidence may prove bad character, it cannot be offered solely for this purpose.[x] This evidence is subject to several conditions including a time sensitive notice to the defense, a requirement for the proof to be clear and convincing and is subject to a Fla. Stat. §90.403 analysis.

 

A Defendant can offer specific acts of conduct of the victim to show the reasonableness of Defendant’s actions in a self-defense case, but it cannot be offered to show bad character, as it is not really character evidence at all. These specific acts are offered to show reasonableness of Defendant’s apprehension.[xi]

 

 

 

“Crossover” Civil cases can provide an exception to prohibition of Character Evidence in Civil Cases.

 

Some courts including the Second DCA have allowed reputation evidence reserved for criminal cases to be admitted in civil cases where the civil case is akin to a criminal case, such as assault, battery or sexual battery. [xii] “When evidence would be admissible under rule 404(a) in a criminal case, we think it should also be admissible in a civil case where the focus in on essentially criminal aspects, and the evidence is relevant, probative and not unduly prejudicial.” [xiii]

 

How do we prove Character? Specific Acts of Conduct or Reputation Evidence

 

It is well settled that in Florida, one cannot offer an opinion of another’s character in court. “Opinion testimony concerning a person’s character has traditionally been inadmissible on the basis that it is too unreliable.” [xiv]

 

Instead the Florida Evidence Code only allows specific instances of conduct and reputation evidence to prove character and the opportunities to use both are limited. As illustrated above, the limitations are greater in civil cases than in criminal cases. [xv]

 

Can anyone testify to one’s Reputation in the Community? No

 

To offer reputation testimony, “[i]t must be established that the witness is familiar with the general reputation in the community of the individual at issue and the trait in question.” [xvi]

 

In order for a witness to testify regarding a party’s reputation in the community s/he must prove “that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment.”[xvii] “Reputation evidence ‘must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of . . . a narrow segment of the community.'”[xviii]

 

“Testimony that a witness had lived in defendant’s neighborhood over twenty years and has seen him interact with neighbors was a sufficient foundation to establish the witness’ knowledge of Defendant’s reputation even though the witness had never spoken to anyone concerning the Defendant’s peacefulness.” [xix]

 

Evidence of a party’s reputation must be confined to that party’s reputation at a time not too remote.[xx]

 

The court determines outside the presence of the jury whether the witness has the requisite foundation to testify to one’s reputation. The trial court is afforded broad discretion in ruling on the admissibility of evidence and its ruling will not be disturbed absent a clear showing of an abuse of discretion. [xxi]

 

Social Networking – Another source for Character Evidence?

 

Social networking sites are increasingly becoming a place for people to communicate and keep in contact with each other. Additionally, Plaintiffs and Defendants are turning to these social networking sites to find evidence to use in their Civil and Criminal cases including photographs, biographical information and statements.

 

Can a witness testify about someone’s reputation based on what they have learned from a social networking site? There are currently no court decisions that have explored this issue. With all the people on social networking sites, it is a community unto itself. But can it serve as a community for purposes of introducing character evidence? Arguably the online community is broad enough to allow a person to learn sufficient information about another’s reputation. The Florida Supreme Court has allowed reputation testimony to be based on the discussions at the place of employment.[xxii] It seems logical that just as information gained at a place of employment is admissible, a witness could testify about one’s reputation through their knowledge of the written conversations amongst the online community and their viewing of relevant online pictures and videos.

 

 

 

[i] Fla Jur 2ndsection 236 (citing Law Revision Counsel Note to sec. 90.405, Fla. Stat.)

[ii] C. Ehrhardt, Florida Evidence section 404 (2009 Edition)

[iii] C. Ehrhardt, Florida Evidence section 404 (2009 Edition)

[iv] U.S. v.Hewitt, 634 F.2d 277 (5th Cir. 1981)

[v] C. Ehrhardt, Florida Evidence Section 404 (2009 Edition)

[vi] Fla. Stat. §904.404(1)(b)   

[vii] Smith v. State, 606 so.2d 641 (Fla. 1st DCA 1992)

[viii] Fla. Stat. §90.404(2)(a)

[ix] McLean v. State, 934 So.2d 1248 (Fla.2006)

[x] Fl. Stat. §90.404(2)(a) 

[xi] Grace v. State, 832 So. 2d 224 (Fla. 2nd DCA 2002)

[xii] C. Ehrhardt, Florida Evidence Section 404 (2009 Edition) citing Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Circ. 1986); Crumpton v. Confederation Life Ins. Co., 672 F.2d 1248, 1254 n.7 (5th Cir. 1982) and Pino v. Koelber, 389 So.2d 1191, 1195 (Fla. 2nd DCA 1980) 

[xiii] ID

[xiv] McCormick, Evidence section 43 (4th Ed. 1992)

[xv] Fla. Stat. §90.404

[xvi] Lewis v. State, 377 So. 2d 640 (Fla.1979)

[xvii] Larzelere v. State, 676 So.2d 394, 399 (Fla.1996)

[xviii] Williams v. State, 982 So. 2d 1190, 1193 (Fla. 4th DCA 2008) (quoting Hedges v. State, 667 So. 2d 420, 422 (Fla. 1st DCA 1996))

[xix] Hoffman v. State, 953 So.2d 643 (Fla. 3rd DCA 2007)

[xx] Alford v. State, 485 So.2d 1992 (Fla. 4th DCA 1987)

[xxi] Muehleman v. State, 503 So.2d 310, 315 (Fla.1987)

[xxii] Hamilton v. State, 176 So. 89 (Fla.1937)

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Case law (VT & and US) update 2016 no.1

(Presented at Inter-agency 4)

Spring 2016
Case law updates

Miranda 5th Amendment

•In Re EW 2015 VT 7

•Juvenile in custody in his home. Independent witness did not clearly enhance EW’s sense of freedom to decline to answer the officer’s questions, in light of statements about honesty and doing the right thing;

•not the juveniles actual home but a mandated placement where he had been 6-8 weeks;

•defendants age – 15

•Statements suppressed

State v Alexander 2016 VT 19

Reasonable Suspicion

•Defendant argues that the trial court erred when it denied his motion to suppress evidence obtained as a result of an unlawful seizure that was not supported by reasonable suspicion.

-Facts-

•On July 11, 2013, Detective Urbanowicz of the Bennington Police Department (BPD) was driving an unmarked police vehicle in Bennington when a taxicab pulled up next to him on his right side and the driver motioned for him to roll down his window. When he did so, the cab driver asked Detective Urbanowicz for the location of the “China Buffet’

•Detective Urbanowicz noted that according to the information displayed on the cab, it haled from Albany, New York. On the basis of his work with the Southern Vermont Drug Task Force, the detective was aware of information that heroin and crack cocaine dealers from out of state were using cabs and buses to travel to Bennington to distribute drugs.
Facts

•Specifically, he was aware that the Yankee Trails bus stop, located next to a Chinese restaurant on Main Street in Bennington that had always been called the Lucky Dragon, was a place where both controlled and street drug transactions had occurred

•Detective Urbanowicz was aware that the task force had developed information that a large African American male, with the nickname “Sizzle,” traveled to Bennington in the company of a woman named Danielle and a man named Tracy, both known to Detective Urbanowicz to deal drugs.1 Detective Urbanowicz noticed a large African American male sitting in the front passenger seat of the cab and thought he might be “Sizzle,” though he was not certain.
Facts

•Corporal Hunt saw that the cab had a GPS device attached to the interior of the front windshield and stopped the cab for violating 23 V.S.A. § 1125, which prohibits driving with an obstructed windshield.
 

•Corporal Hunt ran records checks on both the driver and passenger and saw that there were no warrants for either. The record check also revealed Alexander had a prior misdemeanor arrest from Dover, Vermont in 2010, had an alias: “Snacks,” and had a listed address in New York.

•At that point, Corporal Hunt asked the driver to step out of the cab so he could discuss the situation with the driver.
 

•After this discussion, Corporal Hunt asked the driver for permission to search the cab.
 

•Corporal Hunt asked defendant “if he minded” if Corporal Hunt searched his bags. Defendant initially responded that he did mind. Corporal Hunt then radioed for a canine unit to be brought to the scene to perform a search. Once he heard that, defendant clarified that he did not mind if Corporal Hunt searched his bags. Upon searching defendant’s bags, Corporal Hunt discovered over ten grams of heroin in 401 bags, wrapped in forty separate bundles
 

•A jury subsequently convicted defendant, and the court sentenced him to ten years to ten years and one day to serve. 

-Law-

•Generally, a police officer may stop an individual where the officer has “reasonable and articulable grounds to suspect that an individual is engaged in criminal activity.” Pitts, 2009 VT 51, ¶ 7; see Terry v. Ohio, 392 U.S. 1, 21, 28 (1968).
 

•Where the officer has reasonable suspicion of criminal activity, the officer “may briefly detain the individual to investigate the circumstances that gave rise to the suspicion.” Pitts, 2009 VT 51, ¶ 7
  •However, “[t]he scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19 (citing Warden v. Hayden, 387 U.S. 294 (1967)

•In the context of seizures relating to traffic violations, the law is well settled that police may stop a vehicle and briefly detain its occupants to investigate a reasonable and articulable suspicion that a motor vehicle violation is taking place. See Rodriguez v. United States,

 •Authority for the seizure thus ends “when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id.

  •the police expanded the seizure beyond the scope of the reasonable suspicion supporting the traffic stop at the time Corporal Hunt asked the driver to get out of the cab and talk to him privately

  The focus of his inquiry pivoted from the traffic infraction that supported the stop in the first place to an investigation arising from suspicion that defendant was engaged drug-related crimes.

•This new “mission” prolonged the traffic stop beyond the time necessary to effectuate the purpose of the traffic stop, and thus required additional reasonable suspicion to support the extended seizure. See State v. Winters, 2015 VT 116
 

•The critical question, then, is whether the police had reasonable suspicion to prolong the seizure of defendant at the moment Corporal Hunt asked the driver to get out of the car.

•Reasonable suspicion of criminal wrongdoing must be based on “specific and articulable facts” and not on an officer’s “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 21, 27
  

•At the time Corporal Hunt asked the driver to get out of the car, the police knew: (1) The Lucky Dragon Chinese Restaurant is a known drug hotspot, and is located on Main Street; (2) Defendant was looking for the Chinese restaurant on Main Street, but thought it was called the Chinese Buffet; (3) heroin and crack cocaine dealers from out of state were using cabs and buses to travel to Bennington to distribute drugs; (4) defendant lived in Brooklyn, and was in a cab coming to Bennington from Albany; (5) police had information that an unidentified large African-American male, with the nickname “Sizzle,” traveled to Bennington by taxi or by public transportation in the company of a woman named Danielle for the purpose of selling drugs; (7) defendant is a large, African-American male who was traveling to Bennington by himself in a taxicab; (8) defendant was arrested in 2010 in Dover, Vermont and has an alias of Snacks.

•Turning to this case, although heroin and crack cocaine dealers from out of state may arrive in Bennington by taxicab or bus,4 so do out-of-state visitors coming to Vermont to ski, hike, shop, view the foliage, attend school, engage in legitimate business activites, or enjoy a quiet getaway.
  

•The act of traveling by taxi or bus from Albany to Bennington is not only entirely innocent in and of itself, but is common for law-abiding citizens. Detective Urbanowicz testified that a Yankee Trails bus arrives in Bennington (to a station near the Lucky Dragon) twice a day, and that in recent times Bennington is seeing more taxicabs from Albany. In short, the fact that defendant was riding in a taxi from Albany to a Chinese restaurant on Main Street in Bennington cannot support a reasonable suspicion that he was engaged in criminal activity just because drug dealers are known to travel by taxi or bus (or private transportation), because “a very large category of presumably innocent travelers” do the same. Reid, 448 U.S. at 441

•Accordingly, this case really turns on the significance of the anonymous and confidential tips that an unidentified large African-American male known as “Sizzle” was known to travel by bus or taxi to the Lucky Dragon with a woman named Danielle in order to sell drugs.

•the information known to the police was insufficient to support the inference that defendant was Sizzle. Sizzle was known to travel with a female associate known to local law enforcement; defendant was traveling alone. Sizzle was known by the nickname “Sizzle;” the only nickname associated with defendant was “Snacks.”
  

•the only shared characteristics supporting the inference that defendant was Sizzle are that both are large African-American men, and both apparently travel to Bennington by taxi or bus

•With more specific characteristics, reasonable suspicion may have been established.
  

•Because the extended seizure of defendant was unconstitutional, we conclude that defendant’s consent to search his bag was invalid.


SUPREME COURT OF THE UNITED STATES

Second Amendment

JAIME CAETANO v. MASSACHUSETTS
 
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS 
No. 14–10078. Decided March 21, 2016 
•The Court has held that “the Second Amendment ex­tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008)

•Not in use when 2nd amendment created

•Dangerous per se – modern invention

•Contemporary lense, only those useful in warfare

•All arguments were rejected

 

SUPREME COURT OF THE UNITED STATES
 

MICHAEL WEARRY v. BURL CAIN, WARDEN 

•Murder conviction overturned

•Police held onto prior statements made by complainant (key witness)

•Prosecution did not disclose potential deals made with key witness

•Medical records regarding a witness not disclosed 

Montgomery v. Louisiana

•Rule that juveniles cannot not get life without parole applies retroactively as the change in law (rule) is a substantive change.
 

MULLENIX v. LUNA Per Curiam 

•No civil liability of police officer where deadly force was not improper “beyond debate.”
FSE

•Citation pending

•Defendant not advised that a refusal of FSE’s could be used against him

•Evidence of refusal permitted
Traffic stop

•3 justice Panel Ruling (permissive)

•State v Corbeil

•LE stopped d for fog light

•Trial court – bad stop b/c optional equipment

•Reversed b/c non working light would fail vehicle inspection so therefore LE has reasonable suspicion that inspection sticker is expired.

DUI element of driving

State v. Laraway

•Evidence sufficient d was driving where d made many inconsistent statements, had injuries consistent with being driver, d was one of two people who could have been driving.

Excited utterance DV (citation pending)

•Victim said her boyfriend assaulted him immediately after assault. Court allowed statements. Defendant convicted without victim testimony at trial.
Trespass case (Barre Town)

•We recently had a case where a person was found in a person’s outbuilding/garage on their property. When asked, the owner stated that they never kept the door locked, the garage/building was not part of the residence (attached) and the homeowner did not give notice that the person was not allowed.

•Unlawful Trespass is:

•When a person enters or remains on land or place where notice against trespass is given by actual communication or by a sign, it’s a crime. 13 V.S.A. 3705(a)(1). 

•If a person enters a building/land/place owned by someone and that someone says, “get out” and the person remains, it’s an unlawful trespass. 

•If a person enters a building/land/place that has a sign stating, “No trespassing”, it’s an unlawful trespass.
 

•When a person enters a building other than a residence, whose access is normally locked, whether or not the access is actually locked, or a residence in violation of a court order, it’s a crime. 13 V.S.A. 3705(c). 

•“When a nonresidence is involved, the unlawful trespass statute requires that the normal access to the building be locked, 13 V.S.A. s 3705(c), or that certain methods of notice against trespass be employed, 13 V.S.A. s 3705(a).” State v. Savo, 139 Vt. 644, 647 (1981).

•Even though, it’s a 1981 case, still good law and comes directly from the plain language of the statute.
 

•When a person enters a dwelling house, whether or not a person is actually present, knowing that he or she is not licensed or privileged to do so, it’s a crime. 13 V.S.A. 3705(d).

•Dwelling house is a residential structure or mobile home which contains one to four family housing units, or individual units of condominiums or cooperatives, other than a time-share in a unit, each of which is used or intended to be used as a residence. 12 V.S.A. 4931(2).

•Must show that the defendant knew he or she was not allowed to enter. 


New Law involving Violation of Probation conditions and Conditions of Release

 
State v. Careau 2016 VT 18

Probation condition struck

•Defendant sex offender

•“You shall reside/work where your Probation Officer or designee approves. You shall not change your residence/employment without the prior permission of your Probation Officer or designee.”

•We can dispose of the first question rapidly

•Although no objected to at imposition

•We agree with the parties that Freeman controls and so strike condition 43 as plain error and reverse and remand the matter for the trial court to justify the condition, make it more specific, or eliminate it entirely.

 
COR

•State v. Gates

•Repeated VCR’s

•State seeks to hold under 13 VSA 7575
COR

•Gates cont

•Between December 2014 and January 2016, defendant was charged with several new crimes—retail theft, unlawful trespass, identity theft, prescription fraud, welfare fraud, petit larceny, grand larceny, false pretenses, and obstruction of justice—as well as seventeen VCRs for going onto the premises of the Iron Kettle or for having contact with his mother or both (Docket Nos. 127-2-15 Bncr, 201-3-15 Bncr, 290-4-15 Bncr, 313-4-15 Bncr, 344-4-15 Bncr, 402-5-15 Bncr, 523-6-15 Bncr, 594-7-15 Bncr, 694-8-15 Bncr, 801-9-15 Bncr, 1028-10-15 Bncr, 1059-11-15 Bncr, 1084-11-15 Bncr, 6-1-16 Bncr, 57-1-16 Bncr). The trial court has found probable cause to support each of these charges. In each case, defendant was released subject to conditions of release.

 
COR

•Gates cont

•The right to bail may be revoked entirely if the judicial officer finds that the accused has:

•intimidated or harassed a victim, potential witness, juror or judicial officer in violation of a condition of release; or

•repeatedly violated conditions of release; or

•violated a condition or conditions of release which constitute a threat to the integrity of the judicial system; or

•without just cause failed to appear at a specified time and place ordered by a judicial officer; or

•in violation of a condition of release, been charged with a felony or a crime against a person or an offense like the underlying charge, for which, after hearing, probable cause is found.

 
COR

• “very limited and special circumstances where the State’s interest is legitimate and compelling, a court may not deny bail in the face of the constitutional right.” State v. Blackmer, 160 Vt. 451, 456, 631 A.2d 1134, 1137 (1993) (citing Sauve, 159 Vt. at 573-74, 621 A.2d at 1301).
COR

•13 VSA 7575 (1)

•we do not find in them direct evidence of intimidation.

 
COR

•13 VSA 7575 (2) – multiple VCR’s

•There is no finding of nexus between the VCRs and the disruption of the prosecution, if such a disruption has occurred, and the evidence supporting a connection is very weak
COR

•13 VSA 7575 (3) threat to judicial system

•(d threatened to deflate prosecutor’s tires)

•We hold that the State had to introduce some live testimony, which could be supported by affidavits, to prove by a preponderance of the evidence that defendant committed obstruction of justice. It failed to do that.
COR

•13 VSA 7575 (4)

•“The Vermont Constitution provision does not have an exception for multiple charges. Reliance on § 7575(5) in this case would be ineffective for the same reasons as we found that § 7575(2) does not support revocation.”
COR

•Washington County – Courts will not even impose a condition 3

 
COR – bail

•Bail imposed where “defendant’s repeated threatening phone messages and direct threats of violence tin front of state trooper demonstrate threat to public safety but also reflect on character and mental state – which bears on defendant’s risk of non appearance.
Sentencing Issues

 Defendant has right to speedy trial
•The legislative and constitutional goal is clear and laudable: in nonlife-imprisonment cases, defendants held without bail get their cases tried on a priority basis. That will include a substantial number of cases involving, as does this case, charges of domestic violence. State v. Passino, 154 Vt. 377, 384, 577 A.2d 281, 286 (2004)
 

The Evolution of Surveillance 

•In 1791 the Bill of Rights was signed. Included was the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects…
 

•In 1928, Olmstead v. United States, determined that evidence from wiretaps placed by federal officials without judicial approval is permissible; this did not violate the suspected bootleggers Fourth Amendment right. This case involved telephone conversations and the agents did not trespass on the accused property.
 

•This remained in effect until 1967 with Katz v. United States. In that case, the Justices overturn Olmstead by deciding that the “Fourth Amendment does protect phone calls and electronic transmissions as well as the “’reasonable expectation of privacy’ in places like home, office, hotel room, phone booth. Examination of such places and things now require a warrant.”

 
 

•Following this decision, in 1968, Congress passed the Omnibus Crime Control and Safe Street Acts which was the first Federal law to restrict wiretapping. This law made an exception for the President to have the authority to approve wiretaps if it is to protect the United States

 

Four years later, in 1972, President Nixon is impeached and resigns due to attempted wiretapping and theft of secret documents. In 1975, the Church Committee, headed by Senator Frank Church, investigated the CIA and FBI and uncovered hundreds of warrantless wiretaps and electronic surveillance.

 
•Due to the Church Committee findings, in 1978 President Carter signed the FISA legislation. This provided judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to monitor national security threats.
 

•October 26, 2001 George Bush signed into law the Patriot Act (Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001). The act is comprised of 10 categories. This legislation was written in response to the September 11 attacks. This law gave new powers to the US Department of Justice, National Security Administration and other federal agencies for surveillance of electronic communications. The law also removed legal barriers from blocking police, intelligence and defense agencies from sharing information about potential terrorist threats.  

 

•Certain provisions of the Patriot Act expired on June 1, 2015. On June 2, 2015, President Obama signed the Act which included three amendments. Those three amendments are referred to as the USA Freedom Act. This Act was in response to Edward Snowden who, in 2013, leaked information that the NSA was using the Patriot Act to justify the collection of millions of phone calls.

 
 

•In 2013, Edward Snowden reported to the newspapers The Guardian and The Washington Post a secret program called PRISM that, since 2009, has allowed the NSA access to personal data of millions of people through social media and telephones. Furthermore, the FBI is using drones as part of the domestic surveillance program.  

 
 

•Amendments: 1) This Act requires the NSA to stop collecting bulk phone records, however, those corporations who manage the data can (AT&T, Verizon). The government can request information from these corporations if they have a specific selector, i.e., the person’s name, telephone number, etc. and this is relevant to an authorized investigation. 2) When the NSA wants records, they go through the Federal Foreign Intelligence Surveillance Act Courts. Under this Amendment, there will also be a public advocate at these hearings who will argue to protect our data. 3) The government is now required to public the results of the decisions as well as statistics regarding the use of surveillance. These Amendments expire in 2019.

 
 

•In 2002, the National Joint Terrorist Task Force was created which is a multi agency collaboration comprised of “small cells of highly trained investigators, analysists, SWAT experts and other specialists to combat terrorism. In 2003 the Homeland Security Act was passed by Congress. This is a stand alone cabinet level department to coordinate and unify national homeland security efforts.

 
•The warrant requirement in our Constitution reflects a deeply-rooted historical judgment that the decision to invade the privacy of an individual’s home or possessions should normally be made by a neutral magistrate, not by the agent of the search itself. See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780–81 (1991).
 

•US v. Wurie, 2014: Police watched a suspected drug dealer make a sale, they arrested him and took his cell phone. They used his contact list from his phone to locate his home and then found drugs there. The Court ruled the police cannot search a phone taken from a suspect without a warrant.

 
 

•US vs. Jones, 2012: The FBI got a search warrant to place a GPS tracking device on the underside of the defendant’s automobile. The warrant authorized GPS be installed within 10 days and the installation be in Washington, DC; the agents installed the GPS on the 11th day and in Maryland. The lower court suppressed the GPS data while the vehicle was parked at Jones’ residence but held that the remaining data was admissible since the vehicle was on public streets. The court ruled the tracking exceeded the warrant’s time limits and was an illegal search.

 
 

•In June 2105, the US Supreme Court overturned a conviction of Pennsylvania man, Anthony Elonis. Elonis posted tirades about murdering his estranged wife, an FBI agency and schoolchildren; this resulted in Elonis being charged with threats and incarcerated. In Elonis v. United States, Elonis argued his posts weren’t true threats but rather therapeutic rap lyrics that should be protected by free speech. Elonis posted: “There’s one way to love you but a thousand ways to kill you. Enough elementary schools in a ten mile radius to initiate the most heinous school shoot over imagined.” The Supreme Court agreed. Chief Justice Roberts wrote that it is not criminal speech unless the author intended it as a threat even if a reasonable person would read it as a threat. “… negligence is not sufficient to support a conviction.”

 
Surveillance

•State v. Geraw

•Supreme Court of Vermont. March 15, 2002 173 Vt. 350 795 A.2d 1219

•Electronic Surveillance. Warrantless recording of conversation with officer in defendant’s home violated right to privacy.
 

•In 2008, the Vermont Supreme Court ruled in State v. Bryant that the actions of law enforcement flying 100 feet above the defendant’s property (looking for marijuana which resulted in a lower court conviction for cultivation) is an unreasonable intrusion of privacy that triggers constitutional protection.
Drones in general

•Amazon has a patent for a type of drone that picks up and delivers packages. If you want to use a drone for personal use, you do not need a license, but you do need to register it ($5.00) which is valid for 3 years and you must be at least 13 years old. Drones are governed by FAA rules, which include a 400’ operation ceiling.
S.18

•Currently the Vermont legislature is reviewing S.18 concerning the use of drones and automated license plate recognition (ALPR). As currently written, the bill proposes to establish regulations on the use of drones and to “permit a law enforcement agency to use a drone only if the agency obtains a warrant or if emergency circumstances exist.” The bill also will restrict the “use of ALPR systems to require data capture by ALPR systems be kept confidential and to limit such data from being retained for more than 24 hours, unless certain exceptions apply.”

 
Posting mugshots?

•In 2013, Bristol (VT) police, in response to the public outcry of not knowing what’s going on in the community, posted mug shots and information on their Facebook page. Many residents were upset over this decision. In 2015, South Burlington Police Department announced they would no longer post mug shots on Facebook due to inappropriate comments posted. This has snowballed and in July 2015, VT Digger wrote an article, ‘Distributing Mugshots a Balancing Ace for Police, Publishers.”
Civilian surveillance

•Audio v video

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Telephone recordings

•Who must give permission to record a telephone or in-person conversation?

•Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a “one-party consent” law.

 
Recording Law enforcement

•First Circuit (with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall “because [the citizen’s] activities were peaceful, not performed
 

•The First Amendment right to record does NOT give you the right to interfere in the performance of officials’ duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights.
More information

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Sentencing of a sex offender March 8, 2016

Jonathan Amell was sentenced today for his second Sexual Assault on a Child (13 year old girl). Washington County Chief Deputy State’s Attorney Daniel Cavanaugh tried Amell before a jury who found him Guilty.

During the pendency of this case before trial Amell was also charged twice with violations of conditions of his release for being in the presence of minor girls. Since Defendant’s Guilty verdict he was arrested for shooting a young lady with a BB gun, using marijuana and possessing Heroin. The Court remanded the defendant to jail in October 2015. When in jail, Amell received approximately 15 disciplinary reports including the heroin possession and using vulgar language against female jail staff.

Cavanaugh asked for a prison sentence of 10 – 20 years.

The Judge sentenced Amell to probation and nine months in jail but defendant will receive credit for time served and depending on jail calculations, should be released soon.

Defendant was also sentenced for sex offender probation violations for his first sex offense against a child. Defendant admitted to violating terms of his probation for having contact (alleged to have had sex with a 16 year old after providing marijuana) using marijuana and possessing Heroin but was sentenced to no additional time. The State sought consecutive prison time.

The court cited defendant’s childhood, mental health diagnosis and amenability to community based treatment as reasons not to sentence the defendant to an incarcerating sentence.

Check back for an article on victim’s rights and the philosophy of rehabilitative focused sentencing.

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expanding mental health courts

http://timesargus.com/article/20160214/NEWS01/160219796

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Criminal Just Reform, part 1 – Violent Crime

There have been efforts in Vermont (introduced as House bill 221) and nationally to consider reforming the criminal justice system, especially as it relates to prison populations, sentencing and (jail) detention of criminal defendants.

It is important to focus on the specific changes that should be made, and to resist sweeping changes that would give the public unintended and unsafe results.

In my opinion, public safety should be the government’s number one priority.

Reducing prison populations is an appropriate goal. The U.S. prison population in 2013 was 2,217,000[i]. Stated otherwise, the prison population is approximately 698 for every 100,000 people (as compared to the United Kingdom, for example, who had 148 for every 100,000.)[ii] 

How the government acts to reduce this population can have an effect on our commitment to keep the public safe. To begin we need to continue lengthy sentences for violent offenders and find alternatives for many of the mentally ill and drug addicted.

First, it’s important to know that Vermont has a relatively small prison population per capita as compared to the rest of the country. Vermont ranks 42/50 in this category[iii]. And while serious crimes have been declining nationwide, the incidences in Vermont have slightly increased[iv] Reports of robberies and other violent crimes received a lot of media coverage throughout Vermont in 2015

Washington County in particular has seen an increase in violent crime.

Jail and prison populations in Vermont have decreased  by 4% between 2014 and 2015[v].     The imprisonment rate in Vermont is 251 people per 100,000[vi]  Other statistics suggest the incarceration has increased and jail, or inmates detained awaiting trial, has decreased.

Minimum sentences received by violent felons have decreased 16.5% between 2004 to 2013 (with a slight increase from 2013-2014). [vii] Sentences for violent offenders in 2004 averaged 75-187 months and 62.6 – 168.8 months in 2014[viii].

As of June 2013, 61% of males in prison committed violent offenses. 37% of women prisoners were considered violent[ix]. These violent offenders should not be part of any prison reduction efforts.

Additionally, sex offenders should have greater, not lesser sentences. Lesser sentences do not reduce recidivism and provide no benefit to anyone but the offender.  I am currently prosecuting several sex offenders and more than one have prior verified sex offenses, who have allegedly recidivated and remain on the streets. In Vermont, as of 2014, only 44% of sex offenders were serving their sentence in prison. Society should not tolerate lenient treatment of those who exploit our most vulnerable citizens.

Sentencing should focus on individual and general deterrent, punishment, rehabilitation and in some cases, incapacitation. Most victims (of child sexual assaults) in our office tell me the one thing most important to them is to make sure the defendant does not sexually abuse anyone else. Keeping violent sex offenders in prison and out of the home (most child sex offenses occur in the home) and off the street accomplishes this goal.

Instead, prison reduction efforts should be focused on those with mental health issues, drug addictions and non-violent offenders. Additionally, the legislature should not attempt to reduce the jail population by seeking to reduce those detained pending trial if they are accused of violent crimes.

[Both the detention of violent offenders and drug courts will be discussed in separate articles.]

Creating additional mental health courts is perhaps the best way to reduce incarceration and treat our mentally ill. Far too many mentally ill are being “warehoused” in prisons because of lack of alternatives. If Vermont wants to save money and be morally accountable, there has to be alternatives to incarcerating individuals, who, but for their mental health impairment, would not have committed crimes. Incarcerated individuals who have requested mental health services in Vermont prisons have increased almost 100%. In 2014, over 37% of inmates were on psychotropic medication and 44% of males and 70% of females received mental health services[x]. However, mental health courts should not be available to those who commit serious violent crimes where it would create too great a risk to public safety.

Mental health courts require defendants be held accountable while providing outpatient mental health treatment they need. It could be available for those who are legitimately diagnosed with a DSM-IV, axis I and some axis II disorders. Only Chittenden County currently has a mental health court in Vermont, though they are regularly used throughout the country. I have previously represented the State as a prosecutor in mental health court (in another state) and witnessed  fantastic results.

Mental health courts require defendants participate in counseling, take medication if prescribed, attend regular  (weekly or bi-weekly) court appearances, and have case managers watching/assisting them to include referring other services to help to find housing, medical care, etc. similar to drug courts. It’s a demanding but effective way to treat offenders. Moreover it is a significant cost savings. Housing an inmate in prison costs approximately $85,000. per year in Vermont and about half the cost  if the inmate is sent to Michigan for correctional housing. In order to set up mental health court programs, the legislature would need to approve funding for one case manager and one prosecutor (and perhaps additional judicial support) per venue. This would save taxpayers a considerable amount  of money while handling the crisis in a morally responsible way. At the current time the Washington County State’s Attorneys office could immediately send between ten to twenty individuals to a mental health court.

The legislature can find responsible ways to reduce the prison population without jeopardizing public safety. Dealing with the mentally ill who occupy prison space that should be reserved for violent offenders, would be an appropriate step forward.

Daniel M. Cavanaugh is the Chief Deputy State’s Attorney in Washington County. The opinions expressed are his own and do not represent a policy statement for the State’s Attorneys of Vermont in general or the Washington County State’s Attorney in particular.

[i] Institute for Criminal Policy Research, World Prison Brief
[ii] Id 
[iii] Vermont Department of Corrections, 2014 Facts and Figures FY 2014
[iv]  Id
[v] Department of Corrections, Annual Report FY 2015
[vi] Vermont Department of Corrections, 2014 Facts and Figures FY 2014
[vii] Id 
[viii] Id
[ix] Department of Corrections, Budget Presentation FY 2015
[x] Department of Corrections, Annual Report FY 2015

 

 

 

 

 

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