Justia Criminal Law Opinion Summaries

Plaintiff Zachary Rose challenged the decision of the Vermont Department of Corrections (DOC) to terminate him from treatment programming without a hearing. He argued his program termination constituted punishment under 28 V.S.A. 851, and therefore required a hearing and due process under section 852. The superior court granted summary judgment to DOC, concluding that the termination was not punishment and that plaintiff’s claim was not reviewable under Vermont Rule of Civil Procedure 75. The Vermont Supreme Court concluded that DOC’s decision was reviewable, but on this record, neither party was entitled to summary judgment. Accordingly, judgment was reversed and remanded. View "Rose v. Touchette" on Justia Law

Defendant Devan Calabrese appealed his convictions for aggravated assault with a deadly weapon, unlawful possession of a firearm, and violation of conditions of release, arguing that the court erred in denying his motion to suppress and permitting the State to introduce evidence that he made certain racially charged statements. After review, the Vermont Supreme Court concluded the trial court erred in concluding the trooper’s search did not violate Article 11 and the trial court’s denial of the motion to suppress was thus error. With respect to the evidence that defendant made statements evincing racial animus, the Supreme Court did not specifically rule on defendant’s challenge, but set forth the principles that should guide the trial court if the issue arose on remand. View "Vermont v. Calabrese" on Justia Law

The issue this interlocutory appeal presented for the Vermont Supreme Court's review centered on whether evidence seized by federal Border Patrol agents during a roving patrol (pursuant to their authority to conduct warrantless searches under 8 U.S.C. 1357) was admissible in a state criminal proceeding when that search did not comply with Article 11 of the Vermont Constitution. Defendants Phillip Walker-Brazie and Brandi-Lena Butterfield argued that because the overwhelming purpose of Vermont’s exclusionary rule was to protect individual liberty, the Supreme Court should apply the exclusionary rule and suppress the evidence pursuant to Article 11. To this the Supreme Court agreed, holding that such evidence is inadmissible in Vermont criminal proceedings. View "Vermont v. Walker-Brazie" on Justia Law

In December 2006, petitioner Laura Hernandez was charged with two counts of selling or distributing heroin, based on two sales of heroin by petitioner to an informant. Petitioner’s first counsel was assigned in January 2007. The parties executed a discovery stipulation, requiring all affirmative defenses, including entrapment, to be noticed within ten days of the close of depositions. In September 2007, petitioner’s first counsel withdrew and new counsel was assigned. The parties engaged in extensive discovery, including depositions of various witnesses. Defendant did not notice any affirmative defenses. On the first day of trial, in January 2009, Attorney Kolitch filed proposed jury instructions and in that proposal requested an entrapment instruction for the first time. The court ultimately declined to instruct on entrapment, concluding that petitioner had not made a timely request in accordance with the parties’ stipulation and that this delay prejudiced the State. During deliberations, the jury sent a question to the court asking whether it should consider whether petitioner was pressured by the informant to sell. The court answered: “You may consider the evidence of whether or not the defendant was pressured by the confidential informant and the terms of [the Informant Agreement] the same as you consider all other evidence.” The jury found petitioner guilty. Petitioner moved for a new trial, arguing that the court erred in declining to instruct on the entrapment defense. Before that motion was resolved, petitioner entered a plea agreement resolving this and other cases. As part of the plea, petitioner agreed to withdraw her motion for sentence reconsideration and to give up all rights of appeal in connection with the criminal charges involved in the plea agreement. In 2018, petitioner filed this PCR, arguing that Attorney Kolitch provided ineffective assistance of counsel in her criminal case by failing to timely raise an entrapment defense and to make constitutional arguments in support of allowing an instruction despite the late notice, and that she was prejudiced by Attorney Kolitch’s failures. The Vermont Supreme Court concluded the undisputed facts demonstrated that any error by counsel did not prejudice petitioner, and therefore affirmed. View "In re Laura Hernandez" on Justia Law

Defendant Ryan Hovey appealed his convictions on two counts of aggravated sexual assault, arguing that the two convictions violated double jeopardy because, as charged under the circumstances, they constituted one offense. Additionally, defendant argued that probation condition 41, which required him to work and reside where his probation officer approved, was an improper delegation of power to his probation officer. The Vermont Supreme Court agreed that, as charged under the circumstances, defendant’s convictions violated double jeopardy and remanded for the State to elect which aggravated-sexual-assault conviction should stand. Furthermore, because the trial court failed to support condition 41 with findings, the case was remanded to give the trial court an opportunity to justify, revise, or remove the condition. View "Vermont v. Hovey" on Justia Law

Defendant Sanel Masic was convicted by jury of luring a child . On appeal, he argued 13 V.S.A. 2828 was an unconstitutional restriction on speech and void for vagueness under the U.S. and Vermont Constitutions. He further challenged the superior court’s imposition of a probation condition as part of his sentence. After review, the Vermont Supreme Court affirmed the conviction, but remanded for additional findings regarding the condition of probation. View "Vermont v. Masic" on Justia Law

Defendant Roy Kuhlmann was convicted by jury of unlawful trespass of an occupied dwelling, obstruction of justice, and unlawful restraint. The unlawful-trespass and obstruction-of-justice charges were based on defendant’s acts of entering complainant’s residence, hiding under her bed to listen to her telephone calls, emerging from under the bed and frightening her, and then, when the state police later arrived, urging her to tell them that nothing was wrong. Defendant argued on appeal there was insufficient evidence to support a conviction for trespassing because he had permission to enter the complainant’s house. He claimed his statements in the presence of police were not threatening and were therefore insufficient to support the obstruction-of-justice charge. Finally, defendant challenged his conviction for unlawful restraint, which was based on an altercation that took place three months earlier during which he pushed the complainant onto her bed and held her down for five minutes. He contended the restraint was merely incidental to the assault that preceded it and could not support a separate conviction. After review, the Vermont Supreme Court affirmed the unlawful-restraint conviction, but reversed defendant’s convictions for unlawful trespass and obstruction of justice because they were not supported by the record. View "Vermont v. Kuhlmann" on Justia Law

Defendant Gordon Noyes, Jr., was convicted by jury verdict of aggravated, repeated sexual assault of a child and lewd and lascivious conduct with a child, second offense. On appeal, he requested vacatur of these convictions and remand to the trial court, arguing the trial court erred: (1) denying his motion for a mistrial following an expert witness’s hearsay testimony in violation of a pretrial order; (2) allowing the same expert to testify regarding sex- offender behavior; and (3) permitting the jury to see a video of the complaining witness’s statement to law enforcement in addition to her live testimony. In the alternative, defendant contended that if none of these individual circumstances merited reversal, their cumulative impact did. Finding no "miscarriage of justice here," the Vermont Supreme Court affirmed the trial court's denial of relief. View "Vermont v. Noyes" on Justia Law

Defendant Dean Jeffrey Stearns appeals the superior court’s dismissal of his motion for sentence reconsideration as untimely. In December 2018, defendant pleaded guilty to five counts of voyeurism and two counts of promoting a recording of sexual conduct. On January 23, 2020, he was sentenced to an aggregate term of ten to fifteen years’ imprisonment, suspended except five years to serve. Defendant filed a notice of appeal on February 20, 2020, but later moved to dismiss the appeal. The Vermont Supreme Court granted the motion to dismiss the appeal by entry order dated August 28, 2020. Pursuant to 13 V.S.A. 7042(a) and Vermont Rule of Criminal Procedure 35(b), defendant moved for sentence reconsideration in the superior court ninety days later, on November 26, 2020. The superior court dismissed defendant’s motion for sentence reconsideration because the motion was filed more than ninety days after the sentence was imposed and, in its view, the Supreme Court’s order dismissing the appeal without affirming on the merits was not an “order or judgment of the Supreme Court upholding a judgment of conviction.” Defendant appealed, arguing that because the Supreme Court’s order dismissing the first appeal left untouched his conviction, the order was an “order or judgment of the Supreme Court upholding a judgment of conviction.” Concluding that the motion is timely, the Supreme Court reversed and remanded for review on the merits. View "Vermont v. Stearns" on Justia Law

Defendant Joseph Bruyette appealed an order compelling him to provide a DNA sample for inclusion in the Vermont DNA database. Defendant was convicted of one count of burglary and three counts of sexual assault in 1990. He has been continuously incarcerated in the custody of the Department of Corrections (DOC) since 1987. For most of this time, defendant has been held in facilities out of state. In 1998, the Vermont Legislature passed a law creating a state DNA database. Defendant’s convictions qualified as designated crimes under the law, so the statute required him to submit a DNA sample. He argued 20 V.S.A. 1933(b) excused him from providing a DNA sample because he has previously provided a sample. Finding no reversible error, the Vermont Supreme Court affirmed the trial court’s rejection of defendant’s position that the statute exempted him from providing a subsequent sample. View "Vermont v. Bruyette" on Justia Law