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 ...