Motion to Reconsider Denied October 20, 2014
Appealed from Superior Court, Bennington Unit, Criminal Division. DOCKET NOS. 796-8-14 & 824-9-14 Bncr. Trial Judges: David A. Howard, William D. Cohen.
John P. Wesley, Superior Judge, Specially Assigned.
[¶1] On August 25, 2014, defendant was arraigned on one count of aggravated domestic assault and one count of domestic assault arising from events on or around Jan. 15, 2014, and two counts of domestic assault arising from events on August 22 and 23, 2014. Defendant was released on conditions, despite the State's request for an order holding him without bail under 13 V.S.A. § 7553a. A weight of the evidence hearing to further consider the State's request was scheduled for August 29, and subsequently rescheduled for September 15, based on the unavailability of defendant's counsel. On September 4, defendant was arraigned on five new charges arising from events on September 3 and 4, including two counts of violating an abuse prevention order, two counts of violating conditions of release, and one count of providing false information to a police officer. At arraignment on the new charges, Judge Howard reviewed the conditions imposed in Docket No. 796-8-14 Bncr and granted the State's renewed request tat defendant be held without bail.
[¶2] At the conclusion of the weight of the evidence hearing held September 15 and 17, 2014, Judge Cohen issued an oral decision ordering defendant to be held without bail. This appeal followed and a de novo review was held on October 2 before Superior Judge John P. Wesley, sitting by special assignment to preside over the single justice review proceeding as provided by 13 V.S.A. § 7556(d) and Vermont Rule of Appellate Procedure 9.
[¶3] Defendants may be held without bail under 13 V.S.A. § 7553a when charged with a felony
an element of which involves an act of violence against another person ... [and] when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions
of release will reasonably prevent the physical violence.
[¶4] Defendant does not dispute that the evidence of guilt is great in this case, but contends the court's denial of release on conditions was not supported by clear and convincing evidence that his release posed an unavoidable threat of violence. At the outset of the hearing, noting that neither party had filed a memorandum " describing any proposed additional evidence at least 24 hours prior to the hearing" as required by V.R.A.P. 9(b)(1)(F), the undersigned indicated that review would be limited to the record established at the weight of the evidence hearing.[*]
[¶5] By detailed testimony, consistent with other written statements she made to investigating personnel, the complaining witness established the existence of a two-year relationship with defendant. Since the beginning of January 2014, the relationship has been characterized by defendant's repeated assaults against the complaining witness in addition to an atmosphere dominated by defendant's controlling behavior. The dynamics between the couple include chronic substance abuse, a factor which is highly explanatory of defendant's apparent lack of ability to control his impulse to violence. Defendant has admitted he has regularly abused alcohol and that alcoholism has had a harmful impact on his life. However, he has denied every allegation of assaultive behavior, despite strong objective evidence which taints the entirety of his testimony.
[¶6] In January, defendant precipitated an intemperate argument during which he displayed typical suspicion as to the complaining witness's activities and associates, and demanded that she give him access to her cell phone so he could inspect it. During the argument, defendant grasped the complaining witness by the throat and applied strangling pressure to the point of causing her to have difficulty breathing. Defendant stated that he wanted to kill the complaining witness, and would have punched her if their small son was not present in the apartment. ...