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State v. Perrault

Supreme Court of Vermont

July 28, 2017

State of Vermont
v.
Bryan L. Perrault

         On Appeal from Superior Court, Chittenden Unit, Criminal Division

          Thomas J. Devine, J. (motion to voir dire juror); Michael S. Kupersmith, J. (Ret.) (final judgment)

          Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          SKOGLUND, J.

         ¶ 1. On appeal-after a jury convicted defendant of one count of possessing marijuana and two counts of possessing a depressant or stimulant-defendant argues that he is entitled to a new trial because he discovered, post-trial, that one of the jurors had been previously convicted of a federal felony. He also claims that the evidence was insufficient to establish that he knowingly possessed a depressant or stimulant in violation of 18 V.S.A. § 4234(a)(1). We conclude that the trial court did not abuse its discretion when it denied defendant's motion for a new trial and that the evidence was sufficient to convince the jury that the State proved the elements of § 4234(a)(1) beyond a reasonable doubt; thus, we affirm. I. Motion for a New Trial

         ¶ 2. After his jury conviction, defendant filed a motion for a new trial based on his post- trial discovery that a juror failed to disclose a federal felony conviction on her juror questionnaire form. Because part of the juror's post-release sentence was supervised by the U.S. District Court for the District of Vermont, defendant claimed that the juror's participation in the trial violated 4 V.S.A. § 962(a)(5), which disqualifies persons from jury service who have "served a term of imprisonment in this state after conviction of a felony." We conclude that the trial court did not abuse its discretion when it denied defendant's motion for a new trial because a new trial is not likely to change the result. Specifically, § 962(a)(5)'s plain language does not apply to the juror and defendant failed to demonstrate either actual bias or that the juror dishonestly answered the juror questionnaire.

         ¶ 3. On February 19, 2015, the jury convicted defendant of one count of possessing marijuana in violation of 18 V.S.A. § 4230(a)(1) and two counts of possessing a depressant, stimulant, or narcotic in violation of 18 V.S.A. § 4234(a)(1). The court set March 6, 2015, as the last date for any post-trial motions.

         ¶ 4. On April 8, 2015, defendant filed a motion to voir dire one of the jurors. In his motion, defendant alleged that he had recently discovered that one of the jurors had the same first name, last name, and middle initial as a convicted felon who-fourteen years earlier-had pled guilty in Nevada federal court to a felony charge of intent to distribute a controlled substance. On June 8, 1999, the federal judge imposed a sentence of fifteen months to serve and thirty-six months post-release supervision. The supervised release was from November 21, 2001, to November 21, 2004; on June 20, 2002, the felon's post-release supervision was transferred within the federal court system to the District of Vermont, where the felon served the remainder of her supervised release until it ended in 2004. Although the felon and the juror shared the same name, defendant noted that the juror did not mention a felony conviction to the court and did not affirmatively answer a question on the juror questionnaire asking her whether she had ever been a party in a criminal or civil lawsuit.[1] To confirm whether the juror and the felon were the same person, defendant asked the court for the opportunity to voir dire the juror to ensure his right to a fair trial had not been jeopardized.

         ¶ 5. The court granted defendant's motion for voir dire. In the entry order granting the motion, the court noted that defendant did not object to the juror being impaneled prior to trial. The court then pointed to case law from this Court suggesting that, if a defendant fails to object to a juror being impaneled and if the basis for the objection is known or could have been discovered with reasonable diligence during voir dire, the court should review any juror disqualification claim for plain error. See State v. Koveos, 169 Vt. 62, 66, 732 A.2d 722, 725 (1999). Unlike Koveos, however, the court noted that the basis for the juror disqualification claim involved an undisclosed felony on the questionnaire and, as such, "[i]t would be unreasonable to expect counsel must verify all the information provided on a juror questionnaire during jury selection." Nevertheless, the court concluded that, in order to justify a new trial, defendant had to establish both the undisclosed conviction and actual prejudice as a result of the undisclosed conviction.

         ¶ 6. Subsequently, defendant filed a motion to reconsider the court's order, arguing that he should not be required to prove actual prejudice or a violation of his constitutional rights because felons are inherently biased and subject to statutory disqualification under 4 V.S.A. § 962(a)(5). The court denied this motion on May 26, 2015.

         ¶ 7. In the voir dire hearing, held on September 4, 2015, the court limited the parties' questioning to determining whether the juror had been convicted of a felony and whether that conviction "played any role in compromising [her] ability to objectively and impartially receive the evidence and deliberate." At the same time, the court prohibited any questions involving the substance of the jury's deliberations. Defendant's questions during the voir dire hearing established that the juror was the felon who had pled guilty in Nevada. The juror also confirmed that she had served part of her post-release supervision in the District of Vermont. The juror claimed, however, that her prior conviction had no bearing on her deliberations during the proceedings and that she remained impartial throughout defendant's trial. After confirming the juror's prior conviction, defendant moved for a mistrial because the juror had a prior federal conviction and served a period of her supervised release in the District of Vermont and, therefore, violated 4 V.S.A. § 962(a)(5). The court asked defendant to supplement the oral motion in writing.

         ¶ 8. Defendant filed his written motion for a new trial on September 18, 2015. In the motion, defendant conceded that he did not establish actual prejudice during the voir dire hearing. Instead, defendant again argued that "actual prejudice" should not be the standard because "the inherent bias of ...


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