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State v. Blow

Supreme Court of Vermont

December 21, 2015

State of Vermont
v.
Joshua Blow

          Appeal from: Superior Court, Chittenden Unit, Criminal Division. DOCKET NO. 2630-7-14 Cncr. Trial Judges: James R. Crucitti, A. Gregory Rainville.

          Affirmed.

         John A. Dooley, Associate Justice, Marilyn S. Skoglund, Associate Justice, Beth Robinson, Associate Justice.

Page 673

         ENTRY ORDER

          [¶1] . Defendant appeals the trial court's December 29, 2014 decision to deny bail and its October 14, 2015 decision to deny home detention. We affirm.

          [¶2] . On July 25, 2014, the State charged defendant with second degree murder of A.H. in violation of 13 V.S.A. § 2301. Defendant was arraigned on that date and ordered held without bail pursuant to 13 V.S.A. § 7553. The evidence supporting probable cause included the medical examiner's opinion that, while in defendant's care, A.H. died as a result of blunt impact injury to his head. Although defendant admitted the injuries occurred, he told several inconsistent stories about the cause of the injuries; none of his stories explained the type of injuries identified by the medical examiner.

          [¶3] . A subsequent autopsy by the medical examiner suggested that A.H. incurred his injuries " days to weeks" prior to his death. Because the medical examiner could no longer determine if the injuries occurred during one event or multiple events, the State filed a motion to review bail and a motion to review probable cause. In a September 5, 2014 written decision and order, the trial court held that probable cause still existed. But the court wrote that probable cause was " literally paper thin" and found it doubtful the State could survive a motion to dismiss under Vermont Rule of Criminal Procedure 12(d). Based partially on the weakness of the State's evidence, the court set bail at $25,000 and imposed conditions of release pursuant to 13 V.S.A. § 7554.

          [¶4] . Defendant next filed a motion to dismiss under Rule 12(d) on September 5, 2014. After acquiring new evidence, the State filed a new motion to hold without bail on October 22, 2014. The trial court conducted an evidentiary hearing on these two motions, along with several others, on October 27 and October 28, 2014. At the hearing, the State presented the treating physician's testimony, which indicated A.H. received a fatal injury on the morning of his death, in addition to A.H.'s earlier injuries. Based on this new evidence, the trial court denied defendant's motion to dismiss on December 15, 2014, and continued the hearing on the State's motion to hold without bail to December 29, 2014.

          [¶5] . At the December 29 hearing, the court reopened the evidence from the October hearing and admitted an additional medical affidavit supporting the State's position. The court then denied bail on the record. The court noted that during the October hearing -- after bail was originally set on September 5 -- the State bolstered the evidence of defendant's guilt with medical testimony and the newly submitted medical affidavit. The court found that the new evidence suggested the evidence of guilt was great. In addition, the court highlighted the seriousness of the offense and the risk of flight. Although the court acknowledged defendant had significant familial

Page 674

ties to the area, the weight of the other factors supported denial of bail.

          [¶6] . Approximately nine months later, defendant filed an application for home detention. A hearing on the application was held on October 2, 2015. The trial court subsequently denied defendant's application in a written order on October 14, 2015. In its order, the court first noted that, under State v. Whiteway, 2014 VT 34, 196 Vt. 629, 95 A.3d 1004 (mem.) ( Whiteway I ), the defendant bore the burden of overcoming a presumption for incarceration. The court next analyzed the three factors listed in 13 V.S.A. § 7554b(b). The court found that § 7554b(b)(1) weighed strongly against home detention because of the serious nature of second degree murder and the factual substance of the allegations. The court then examined the elements listed in § 7554b(b)(2): first, the court recognized that defendant had not been previously convicted of any violent crimes, but noted that there was evidence of prior abuse of A.H. and that defendant had a number of prior nonviolent convictions; second, the court described a complicated supervision history that included favorable facts -- defendant's prior, satisfactory residence with his cousin -- and unfavorable facts -- defendant's disciplinary history while incarcerated and two failure-to-appear warrants; third, the court found that a risk of flight existed because of the prior warrants and the weight of evidence. Ultimately, despite recognizing that § 7554b(b)(3) favored home detention, the court found the section's first two factors strongly weighed against home detention and denied defendant's application.

          [¶7] . Defendant appeals the trial court's December 29, 2014 decision to deny bail and the court's October 14, 2015 decision to deny home detention.

          [¶8] . On appeal, defendant argues that the trial court did not possess the authority or jurisdiction to revoke bail on December 29, 2014. Defendant contends that, once bail was granted on September 5, 2014, the State could reverse the decision only via two procedural devices: revocation of bail pursuant to 13 V.S.A. § 7575 or appeal of the bail decision to this Court under 13 V.S.A. § 7556(c). Because the State used neither method, defendant concludes the trial court had no authority to reconsider bail. In support, defendant cites this Court's decision in State v. Synnott, 192 Vt. 652, 54 A.3d 530 (Vt. 2012) ...


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