On Appeal from Superior Court, Chittenden Unit, Criminal Division October Term, 2012 Michael S. Kupersmith, J.
The opinion of the court was delivered by: Skoglund, J.
State v. Casey (2011-205)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant appeals his conviction of two counts of aggravated sexual assault, alleging that the trial court erred in (1) denying defendant's motion to sever a joint trial; (2) refusing to grant a new trial after co-defendant pled no contest midtrial; and (3) admitting the victim's diary as evidence of her sexual abuse. We affirm.
¶ 2. This case has a long and winding history. The State prosecuted defendant and co-defendant, Stacey Parnitzke, with whom defendant was romantically involved, for multiple counts of aggravated sexual assault. The charged incidents occurred between 2005 and 2006. There have been three jury trials, presided over by two judges. Separate counsel represented defendant and Parnitzke, but the court joined their cases for discovery, pretrial motions, and all three trials.
¶ 3. The first trial in June 2009 resulted in a hung jury. The second trial in April 2010 led to convictions against both defendants, but due to the improper admission of evidence, the trial court vacated the convictions and granted a new trial. The third trial commenced on January 31, 2011. After three days of trial, on February 2, 2011, Parnitzke pleaded no contest to a reduced charge of sexual assault on a minor, which ended her participation in the case. The third trial drew to a close on February 9, 2011. Defendant was convicted of two counts of aggravated sexual assault. Defendant filed a timely motion for a new trial, which was denied. This appeal followed.
¶ 4. Defendant first claims that he requested severance before the third trial and asserts that the court impermissibly denied his motion to sever, arguing that there was a "reasonable likelihood of prejudice" that could not be eliminated. Defendant and Parntizke were charged in separate informations. Before the first trial, the State moved to join the cases pursuant to Vermont Rules of Criminal Procedure 8(b)(3)(A), 8(b)(3)(B), and 13(a), contending defendants were charged with offenses that were "closely connected" and part of a "common scheme or plan." Both defendant and Partnitzke objected to the State's motion for joinder. Nonetheless, the court granted the State's motion under Rule 13(a), which authorizes the court to join cases for trial even though they were filed separately.
¶ 5. Rule 13(a) gives the court broad discretion to order joint trials where cases could be joined for pleading under Rule 8. See Reporter's Notes, V.R.Cr.P. 13(a). Rule 8 authorizes the joinder of defendants when "it is alleged that the several offenses charged were (A) part of a common scheme or plan; or (B) were so closely connected in respect to time, place, and occasion that it would be difficult to separate proof of one charge from proof of others." V.R.Cr.P. 8(b)(3)(A)-(B). The trial court reasoned that because there were allegations of simultaneous sexual assault, whereby both defendants were allegedly abusing the victim at the same time, such acts would constitute a common plan or scheme under Rule 8(b)(3)(A). Similarly, the court found that because the charged offenses all occurred between the same time frame and in the same place, the allegations were "closely connected" under Rule 8(b)(3)(B). Further, the court concluded that there was "no reasonable likelihood that [the] defendant[s] would be prejudiced by a joint trial," finding that the evidence involved was not so complicated that the jury would have difficulty understanding the allegations made as to each defendant. See V.R.Cr.P. 14(b)(2)(D)-(E). Specifically addressing severance with respect to defendant, the court stated:
The State has given notice of its intent to introduce other uncharged acts under V.R.E. 404(b) against each defendant. Defendant-Casey argues that the jury will be required to distinguish between acts involving other men and Defendant-Parnitzke and those acts involving these two defendants. Defendant-Casey also argues that the jury will be required to "examine frank and shocking allegations of sexual abuse of a child . . . and to examine equally shocking allegations of incest" against Defendant-Parnitzke. Distinguishing the sexual acts between participants and the type of sexual act is not so complicated that a jury could not distinguish the evidence and apply the law intelligently. The jury will be required to examine shocking allegations of sexual abuse and incest. This is not a ground for severance. The "shock value" does not prevent a jury from applying the law intelligently.
¶ 6. Furthermore, the court explained that the uncharged acts, complained of by defendant, had a "limited purpose," and the jury would be instructed that they could not be used substantively against either defendant or Parnitzke. The court also observed that defendant and Parnitzke's underlying relationship would remain pertinent to both cases and be disclosed at trial, regardless of whether their cases were severed. Before the jury draw of the first trial, defendant twice renewed his objections to joinder, but the court reaffirmed its denial. As noted, the first trial ended in a hung jury.
¶ 7. Before the second trial, the State moved for joinder. Parnitzke filed a renewed motion to sever. Defendant did not move to sever and expressly declined to join Parnitzke's motion for severance but indicated he may want to renew such motion at a later time. The court granted joinder, citing reasons articulated in its earlier decision to join the cases. The second trial resulted in convictions of both defendants; however, as noted above, a new trial was granted due to the admission of improper evidence.
¶ 8. On the first day of jury draw for the third trial, counsel for Parnitzke renewed the request for a separate trial, acknowledging that her request had been consistently rejected but wanting to preserve the issue ...