On Appeal from Superior Court, Bennington Unit, Criminal Division Cortland Corsones, J.
Christina Rainville, Chief Deputy State’s Attorney, Bennington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Joshua S. O’Hara, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Hayes, Supr. J., Specially Assigned
HAYES, SUPR. J., SPECIALLY ASSIGNED.
¶ 1. Defendant appeals jury convictions for sexual assault and sexual assault of a vulnerable adult based on a single incident. He argues that the court erred by: (1) allowing a three-week separation period between jury selection and the commencement of his trial; (2) denying his motion to dismiss one of the convictions on double-jeopardy grounds; and (3) admitting the hearsay testimony of the complainant’s brother under the excited-utterance exception. We vacate the sexual assault conviction on double jeopardy-grounds, but reject defendant’s other arguments and affirm his conviction of sexual assault of a vulnerable adult, as well as the sentence imposed for that conviction.
I. Facts and Procedural History
¶ 2. Defendant, who was in his seventies at the time of the incident that led to the charges against him, lived in the same residential facility for disabled adults and senior citizens as the complaining witness, a woman with intellectual disabilities. In February 2012, the State filed an information alleging that sometime in June 2007 defendant: (1) engaged in a sexual act with another person without her consent, in violation of 13 V.S.A. § 3252(a)(1); and (2) engaged in sexual activity with a vulnerable adult without her consent, in violation of 13 V.S.A. § 1379(b)(1). The charges were based on a single incident in which defendant lured the complainant into his apartment under false pretenses and then forced her to engage in a sexual act without her consent.
¶ 3. In October 2012, the trial court scheduled a final jury calendar call for January 2, 2013 and a jury draw for January 8, 2013. At the January 2 calendar call, the court set a trial date of January 29, 2013. The trial took place on January 29 and 30, and the jury convicted defendant on both charges. The court denied defendant’s motion for judgment of acquittal on the charges as well as his motion for a new trial. The court ruled that the evidence was sufficient to sustain the convictions and rejected defendant’s contention that the court had improperly admitted the hearsay testimony of the complainant’s brother based on the excited utterance exception.
¶ 4. Following the convictions, but before sentencing, defendant moved to dismiss one of the convictions on double jeopardy grounds. The trial court denied the motion, concluding that the Double Jeopardy Clause was not violated because the two offenses contained different elements and different punishments, indicating, along with the statutes’ purpose sections, that the Legislature intended to permit punishment for both crimes based on a single incident. On July 18, 2013, the court imposed concurrent sentences of three years to life imprisonment for the sexual assault conviction and three-to-twenty years for the sexual assault of a vulnerable adult conviction.
II. Jury Separation
¶ 5. Defendant first argues on appeal that his convictions should be reversed because the trial court allowed a three-week separation period between the jury selection and his trial and then did not provide an opportunity for supplemental juror examination and challenges, in violation of Vermont Rule of Criminal Procedure 23(d). Because defendant did not object, and in fact acquiesced, to the procedure he now challenges for the first time on appeal, we review this claim under a plain-error analysis. See State v. Yoh, 2006 VT 49A, ¶ 36, 180 Vt. 317, 910 A.2d 853 (“When an issue has been forfeited through a party’s failure to raise it below or brief it on appeal, we may consider it only under the rubric of plain error.”). “Plain-error analysis requires us to consider whether these are exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant’s constitutional rights.” Id. ¶ 39 (quotation omitted). Thus, the error must be both obvious and prejudicial, such that it affects defendant’s substantial rights and the fairness or integrity of the judicial proceedings. Id.
¶ 6. In its present form, Rule 23(d) provides, in relevant part, as follows:
Unless the parties consent to a longer delay, trial must commence not more than 48 hours after jury selection in the case of a felony for which the penalty may be life imprisonment or death, and not more than 30 days after jury selection in any other case. If the commencement of trial is delayed more than 24 hours, the parties shall be entitled to conduct a supplemental examination of the jurors as provided in Rule 24(a) related solely to issues arising from the period of separation and may exercise challenges for cause as provided in Rule 24(b) before the jury is sworn.
This section of subdivision (d) was initially added “to govern jury separation and the timing of the trial after the jury is selected.” Reporter’s Notes-1984 Amendment, V.R.Cr.P. 23. As first adopted, the rule did not allow the jury to separate in capital (life imprisonment) cases even if the parties agreed, and gave defendants in every felony case the right to a “pick and go” trial. Id. Rule 23(d) was later amended “to eliminate the absolute right to pick a jury and go to trial immediately in a felony case, ” a right that was causing serious problems of delay, especially in small counties that had one jury draw per month. Reporter’s Notes-1995 Amendment, V.R.Cr.P. 23. Rule 23(d) was again amended in 2008, this time “to permit up to thirty days to pass between jury selection and trial of felonies not punishable by life imprisonment.” Reporter’s Notes-2008 Amendment, V.R.Cr.P. 23.
¶ 7. In this case, at a January 2, 2013 final calendar call, after the January 8, 2013 jury drawing had already been scheduled, the trial court announced to defense counsel and the prosecutor that a one-day jury trial would be scheduled for January 29, 2013. When the court asked if that date made sense, defense counsel responded in the affirmative and then asked if this case was first in line for trial on that date. When the court confirmed that it was, defense counsel responded: “Great, thank you.” The jury was selected, as scheduled, on January 8. At the conclusion of jury selection, the court reminded the jurors as follows:
Again, please do not discuss this case with anyone between now and [January 29]. Don’t do any independent research.
If for whatever reason there’s something in the newspaper or something comes on the radio, turn the page or turn the dial on the radio so you don’t hear anything about it. If something does happen, just report to us and we can deal with it.
At no time during the jury draw did defense counsel object to the three-week separation period that would occur between the time the jury was selected and the trial.
¶ 8. On January 29, 2013, on the first day of trial before evidence was presented, the trial court asked the jurors if any of them had “heard anything about the case or the parties or learned anything about it or done any independent research since” the January 8 jury selection. The court then stated for the record that all of the jurors responded in the negative. Defense counsel did not ask at that time to conduct a supplemental examination of the jurors concerning the separation period or to retain the option to exercise additional challenges for cause based on any such examination.
¶ 9. Now, for the first time on appeal, defendant argues that the court committed reversible error by not obtaining his consent to allow a separation period beyond forty-eight hours and then by not providing him with an opportunity to examine the jurors about the separation period and potentially to exercise additional challenges for cause. He presents no evidence of actual juror taint, or even of media coverage about the case during the separation period, but rather states that he need show only the existence of circumstances capable of prejudicing the deliberative function of the jury. He claims that prejudice exists here because the crime is serious enough, and the separation period long enough, for the jurors to be exposed to prejudicial information. According to defendant, that, coupled with what he characterizes as the trial court’s weak admonitions, supports a reversal of the convictions here. He further contends that there is plain error because the court’s procedure obviously did not comport with the procedures set forth in Rule 23(d), prejudicially impacted his substantial rights provided by the rule, and seriously affected the fairness and integrity of his trial. We disagree, and conclude that there is no plain error here.
¶ 10. We first consider whether there is error, and if so, whether that error was obvious. Rule 23(d) requires that there be no greater than a forty-eight-hour separation period in potential life-imprisonment cases such as the instant one, but permits the parties to consent to a longer delay. That subsection does not require, however, that the defendant’s consent be personal, in writing, or preceded by the court asking certain questions to assure the defendant’s complete understanding of the consequences of the decision, as in other sections of Rule 23 dealing with consent to waiver of a jury trial or to a reduced number of jurors. See V.R.Cr.P. 23(a) (providing that defendant may waive jury trial in signed writing or in open court, with consent of court and prosecuting attorney, as long as court addresses defendant personally in open court to assure defendant’s understanding that defendant can participate in selection of twelve jurors who must unanimously agree on guilt rather than have court alone decide guilt if jury is waived); V.R.Cr.P. 23(b) (providing that parties may stipulate in writing to less than twelve jurors). This is a reflection of the fact that although Rule 23(d) safeguards constitutional rights-ensuring trial by an impartial jury-its specific time constraints on the separation period are not constitutionally imposed. Indeed, as indicated above, amendments to Rule 23(d) have loosened those constraints in light of scheduling concerns and the recognition that there are other ways to limit the potential for, and to discover and eliminate, any juror taint. See, e.g., Reporter’s Notes-1995 Amendment, V.R.Cr.P. 23 (noting that amendment eliminated absolute right to pick jury and proceed to trial immediately in felony cases but created opportunity for supplemental examination to address concerns of juror taint).
¶ 11. Here, as noted, at a status conference after jury selection had already been set for January 8, the court asked defense counsel if setting the trial for January 29 “made sense, ” to which defense counsel responded, “Yes, ” and then, “Great, thank you, ” after confirming that defendant’s trial would be first up that day. This brief colloquy between the court and defense counsel plainly demonstrated counsel’s acquiescence to scheduling defendant’s trial twenty-one days after the jury was selected. The rule does not require defendant’s personal consent; nor does it require the court to confirm the parties’ apparent acquiescence to a delay beyond forty-eight hours. Thus, even if we were to assume error, there certainly was no obvious error regarding defendant’s consent in this case.
¶ 12. Nor was there any obvious error as to the other components of Rule 23(d), which entitle the parties to conduct a supplemental examination of the jurors regarding a separation period exceeding forty-eight hours and to make challenges for cause based on any such examination. In this case, the trial court admonished the jurors following jury selection not to discuss the case with anyone or to do any independent research before the trial. Further, the court told the jurors not to read or listen to any news about the case, and to report to the court if they were exposed to any such material. Three weeks later, when the jurors returned for defendant’s trial, the court explicitly asked them before the trial began whether any of them had “heard anything about the case or the parties or learned anything about it or done any independent research since” the jury selection. The court then stated for the record that all of the jurors were indicating that they had not. Hearing that, defense counsel did not assert defendant’s right to a supplemental examination.
¶ 13. As with the consent component of the rule, Rule 23(d) does not specifically require the trial court to apprise the parties of their right under the rule to examine the jurors following a delayed separation period. Therefore, even if we were to assume that the court erred by not confirming defense counsel’s disinterest in reexamining the jurors following the separation period, any such error was not obvious, and thus there was no plain error. Moreover, though we need not examine the other aspects of the plain-error analysis in light of our conclusion that any error was not obvious, we note that defendant has failed to demonstrate, beyond the three-week delay itself, “the existence of any intervening events which might have been capable of prejudicing the deliberative function of the jury.” State v. Fortier, 149 Vt. 599, 602, 547 A.2d 1327, 1329 (1988) (finding no abuse of discretion in court proceeding after ...