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State v. Heffernan

Supreme Court of Vermont

December 1, 2017

State of Vermont
Tyler Heffernan

         On Appeal from Superior Court, Chittenden Unit, Criminal Division

          A. Gregory Rainville, J. David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          REIBER, C.J.

         ¶ 1. Following a jury trial, defendant appeals his convictions for simple assault and disorderly conduct stemming from a late-night brawl in downtown Burlington. First, he argues that the court abused its discretion and denied him his rights to present a defense, to compulsory process, and to due process when it denied his motion to continue the trial despite the unavailability of a key witness due to her hospitalization. Second, defendant argues that the court erred by not declaring a mistrial when a prospective juror who had previously worked with defendant as his supervisor made negative comments about defendant during jury selection. We reverse defendant's convictions and remand for a new trial on the basis that defendant was prejudiced by the inability to present testimony from the hospitalized witness. We do not reach the second issue of whether the court should have declared a mistrial due to the prospective juror's comments.

         ¶ 2. The following facts come from police affidavits, testimony from five witnesses, and video recordings from police body cameras and a surveillance camera. The brawl leading to defendant's convictions took place at about 3:00 a.m. on September 2, 2015, on the sidewalk outside of two bars on Main Street in Burlington-Esox and Nectar's. At trial, a Nectar's bouncer testified that defendant was also a Nectar's employee but that defendant had not been working that night. The bouncer further testified that defendant always wore glasses and rode a bike to work. Although the bouncer also knew the complainant as a patron of Nectar's and from mutual friends, he did not know if defendant and the complainant knew each other. As the bouncer helped load equipment into a truck for a band that had performed at Nectar's, he saw defendant and the complainant having a "close conversation, " and although he "couldn't hear any words . . . you wouldn't think that something was about to happen until it happened." The bouncer testified that he "didn't see what started the fight." He merely saw the outbreak of the fight out of his "peripheral vision" and then "turned and saw what was happening." At that point, the bouncer saw defendant and the complainant go "down to the ground" and then "other people around them . . . stepped in . . . to try to separate them."

         ¶ 3. At trial, an Esox patron largely corroborated key elements of the bouncer's testimony and further gave insight into what precipitated the brawl. After testifying that he knew defendant because "[h]e works at different establishments that I have frequented, " the patron testified that he saw defendant "leaned against the wall" outside Esox and "some words were ensued" between defendant and the complainant. He described this conversation as "angry, " "cussing, " and "loud." At that point "a fight broke out" and the patron "saw both of them on the ground fighting."

         ¶ 4. Responding to the commotion, Burlington Police Department officers stationed at the intersection of Church Street and Main Street ran toward the crowd that had gathered around defendant and the complainant. They arrived on the scene as the men were brought to their feet by intervening spectators. Two of these officers-Officers Harnett and Drinkwine-testified at trial. Officer Hartnett was wearing a body camera and turned it on as he ran toward the crowd; the recording from this body camera was introduced at trial. He testified that as he arrived at the scene, "[t]here was a large crowd of people" and defendant "was in front" of him. He testified that he saw defendant then attack and injure the complainant:

He starts walking around, and then he approached the victim and put his hands around that-around the victim's throat. And I watched him slam that male to the ground causing a head injury. And then Officer Drinkwine and myself put hands on [defendant] and took him off, and placed him in handcuffs. . . . And from what I recall, [the complainant] hit his head on the metal grate, and there was injuries to the back of his head, and blood going around his face and neck.

         ¶ 5. The two officers arrested defendant. Officer Drinkwine testified to the same, describing defendant's attack on the complainant as a "choke slam" and describing that he saw defendant "grab with both of his hands around [the complainant's] neck, and slam him to the ground." At that point, the two officers pulled defendant off complainant and arrested defendant, and Officer Hartnett escorted defendant to a nearby police car. Officer Drinkwine stayed with the complainant, whom he described as being "unconscious for several seconds . . . upwards of twenty to thirty seconds, before he regained consciousness."

         ¶ 6. The complainant testified at trial and said that after drinking some beer at Esox and then leaving the bar, his memory became uncertain: "Leaving is the only thing I do remember from there. I remember walking outside. After that I just remember gaining consciousness in an ambulance." He "sustained a complex concussion, with two lacerations to the back of [his] head, " requiring staples.

         ¶ 7. In addition to the police body camera, the events of the night were captured on surveillance video from Esox. Due to an awning, the beginning of the recording only shows the parties from the knees down. It does not show how the fight began.

         ¶ 8. A key takeaway from these five witnesses' testimony is that no witness saw who initiated the fight or saw what immediately precipitated the fight. Officer Hartnett's body camera footage and the Esox surveillance camera footage likewise do not reveal the moments immediately before the two were fighting. But one person who was at the scene may have seen the entire incident from start to finish-the witness who was unavailable for trial due to her hospitalization, whom we identify as R.C. At some point after defendant was ...

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