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State v. Thomes

Supreme Court of Vermont

September 26, 2014

State of Vermont
Brian M. Thomes

Appeal from: Superior Court, Franklin Crim. Division. DOCKET NO. 930-9-14 Frcr. Trial Judge: Alison S. Arms.


Beth Robinson, Associate Justice.


[¶ 1] In the above-entitled cause, the Clerk will enter:

[¶ 2] In this bail appeal, defendant challenges two conditions of pretrial release: (1) a requirement that he give a surety bond or cash of $10,000, and (2) a requirement that he be " released into the custody of a responsible adult approved by the court." Defendant argues that these conditions are not, as required by statute, the " least restrictive combination of ... conditions which will reasonably assure the appearance of [defendant] as required" in court, 13 V.S.A. § 7554(a)(1), and " reasonably assure protection of the public," id. § 7554(a)(2). This Court affirms the responsible-adult condition, but reverses the $10,000 bail requirement on the current record, and remands to the trial court with instructions to strike that condition.

[¶ 3] Brian Thomes is charged with two counts of aggravated assault on a law enforcement officer and one count of aggravated disorderly conduct. The affidavit of the arresting officer gives the following facts. In the early afternoon of September 5, 2014, two officers were dispatched to Thomes' home in St. Albans following a disturbance call, which reported that Thomes had cut his wrist in an attempt to harm himself, and that Thomes was threatening to kill his son. The officers arrived to find Thomes sitting in front of his home in a folding chair smoking. The officers saw a knife on the ground at Thomes' feet. As they exited their car, Thomes bent forward, extinguished his cigarette on the sidewalk, picked up a kitchen knife in one hand and a butcher's knife in the other, stood up, and began walking toward the officers with the knives in his hand in an upright position. Believing that Thomes might attack them, the officers drew their weapons and ordered him to drop the knives, but Thomes refused, saying that " he wasn't going to drop anything" and urging the officers to kill him. The officers shot Thomes with a stun gun, recovered the knives, and arrested Thomes, whose earlier self-inflicted wounds to his wrist were superficial. The officers interviewed two witnesses, including Thomes' son, who told police that his father had seen him earlier and told them " that he was going to kill himself and was going to come back from the dead to kill him." The information was filed the same day as the arrest, and Thomes was arraigned later that day.

[¶ 4] At the arraignment, it was undisputed that Thomes was a fifty-four-year old longtime local resident with no prior criminal history. The court acknowledged the defendant's ties to the community, but found that Thomes' " current presentation" (i.e., his precarious mental state) and the serious facts alleged (i.e., that Thomes waved a knife threateningly at police officers in an apparent attempt to goad them to kill him) made him a flight risk. Accordingly, the court imposed conditions of release which included, alongside several conditions not at issue here, requirements that the defendant post $10,000 bail, and that, when a bed became available at the State Psychiatric Hospital, bail be automatically struck and the defendant, as recommended before the arraignment by a mental-health screener, submit to an inpatient forensic evaluation, and voluntarily admit himself if the evaluation called for it.[1]

[¶ 5] Defendant was unable to meet the conditions of release, and on September 10, the trial court held a bail review hearing. See 13 V.S.A. § 7554(d)(1) (" A person for whom conditions of release are imposed and who is detained as a result of his or her inability to meet the conditions of release ... shall, within 48 hours of application, be entitled to have the condition reviewed by a judge in the court having original jurisdiction over the offense charged." ). At the hearing, the defense represented that Thomes has lived in Vermont for eighteen years and worked in a chocolate factory before his arm was injured in an industrial accident. He receives Social Security Disability benefits, has no prior criminal record, lives with his adult daughter in subsidized housing, and resides next door to his adult son. The defense asserted that the incident five days earlier had been the result of defendant missing medication, and his blood sugar becoming irregular. Given these facts, which would suggest that the circumstances driving defendant's conduct on September 5 no longer existed, defendant asked the court to lift the requirement for $10,000 cash bail.

[¶ 6] At that hearing, the court, defense attorney, and prosecutor all noted that Thomes had a " remarkable change" in appearance since the arraignment; the court noted that on September 5, the defendant was " not in a position to obey court orders," but on September 10, back on medication, defendant appeared " very calm" and " in control of himself and his faculties." Given this, the State dropped its request for $10,000 cash bail, but asked that " Condition Four" be entered, providing as a condition of release that Thomes be " released into the custody of a responsible adult approved by the court." See id. § 7554(a)(2)(A) (court may order, as condition of release, that defendant be " [p]lace[d] in the custody of a designated person or organization agreeing to supervise him" ). The State explained that it wanted someone to make sure that, if released, defendant did report promptly to Northwestern Counseling & Support Services (NCSS) in St. Albans for an evaluation, as well as for any follow-up evaluations or appointments.

[¶ 7] Defendant did not object to the requirement that he promptly report for an evaluation upon his release, but argued that there was no responsible adult to whom he could be released, and that imposing such a condition was thus tantamount to denying bail.[2]

[¶ 8] The court reviewed in detail the allegations in the affidavit accompanying the information, including defendant's conduct in wielding a knife threateningly as he approached law enforcement officers. It reviewed the screener's evaluation from September 5, which indicated that defendant was tearful, endorsing suicidal ideation, and stating that he did not want to continue to live in pain. And it noted that, although it had heard argument from counsel, it did not then have before it " an opinion of a medical professional" supporting defense counsel's argument that defendant's behavior on September 5 " was tied to inadequate or maladjusted medication" and thus not likely to repeat. The court explained that it was " concerned that he will continue to be a risk of harm to himself or to others if he does not have a responsible adult who can represent to the court that he is properly receiving his medication."

[¶ 9] The court imposed Condition Four, requiring Thomes to be placed in the custody of a responsible adult, and continued the $10,000 bail requirement. The court's findings and explanation if its ruling did not address risk of flight, or suggest a continuing concern about defendant's fleeing. Instead, the court was focused on defendant's risk of harm to self and others. The court left the door open to amended conditions of release, but not until it had additional evidence suggesting changed circumstances relative to his risk of harm to self and others.

[¶ 10] On September 12, defendant appealed the amended conditions of release to this Court under 13 V.S.A. § 7556(b).

[¶ 11] After defendant's appeal in this Court was filed, and in accordance with the conditions of release, Thomes underwent an inpatient psychiatric examination by Paul G. Cotton, M.D., on September 13. Dr. Cotton's report was filed with the trial court on September 17. At the examination, Dr. Cotton interviewed defendant, reporting in detail his social history, medical history, and other background, and assessing defendant's mental status and competency. The report indicated that the defendant has, for ten years, received services at NCSS, where he has a case worker. Thomes takes several medications but his caseworkers have never recommended or required that he receive inpatient care. Thomes reported " a lengthy, complex medical history," including, since childhood, type 1 diabetes. Dr. Cotton diagnosed the defendant with " depressive disorder due to another medical condition" (diabetes) but found him to be sane, competent, and cooperative, with a " factual" and " rational understanding of legal proceedings." Dr. Cotton's report does not directly address ...

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