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State v. Sawyer

Supreme Court of Vermont

April 10, 2018

State of Vermont
v.
Jack Sawyer

          Superior Court, Rutland Unit, Criminal Division DOCKET NO. 194-2-18 Rdcr Trial Judge: Thomas A. Zonay

          ENTRY ORDER

         In the above-entitled cause, the Clerk will enter:

         ¶ 1. Defendant Jack Sawyer appeals the trial court's decision holding him without bail. Defendant is charged with four separate counts, each predicated on his alleged attempt to commit a crime, and three of which are punishable by life imprisonment. The sole question before this Court is whether the evidence of guilt is great that defendant attempted to commit any of the four charged crimes given the definition of "attempt" under Vermont law. We hold that the weight of the evidence is not great that defendant has committed any act or combination of acts that would satisfy Vermont's definition of an attempt to commit any of the charged crimes. We reverse the trial court's hold-without-bail order and remand for further proceedings.

         ¶ 2. Each of the four counts that defendant is charged with arises from his alleged attempt to commit a mass shooting at Fair Haven Union High School (FHUHS). The first count alleges that defendant attempted to cause bodily injury to another with a deadly weapon in violation of 13 V.S.A. §§ 9 and 1024(a)(2). The second count alleges that defendant attempted to commit first-degree murder in violation of 13 V.S.A. §§ 9 and 2301. The third and fourth counts allege that defendant attempted to commit aggravated murder in violation of 13 V.S.A. §§ 9, 2311(a)(3), and 2311(a)(7). The attempted aggravated murder counts are punishable by life imprisonment with no possibility of parole and the attempted first-degree murder count carries the potential for life without parole. 13 V.S.A. § 9(a) ("If the offense attempted to be committed is murder [or] aggravated murder . . . a person shall be punished as the offense attempted to be committed is by law punishable."); id. § 2303(a)(1)(A)-(B) ("The punishment for murder in the first degree shall be imprisonment for . . . a minimum term of not less than 35 years and a maximum term of life; or . . . life without the possibility of parole."); id. § 2311(c) ("The punishment for aggravated murder shall be imprisonment for life and for no lesser term. . . . A person sentenced under this section shall not be eligible for parole during the term of imprisonment imposed herein . . . .").

         ¶ 3. Defendant was held without bail under 13 V.S.A. § 7553, which implements the Vermont Constitution's presumption that a person shall be released on bail, unless the person is charged with "an offense punishable by death or life imprisonment . . . when the evidence of guilt is great." Vt. Const. ch. II, § 40. Section 7553 states that "[a] person charged with an offense punishable by life imprisonment when the evidence of guilt is great may be held without bail." In cases, such as this one, where a defendant is charged with an offense punishable by life imprisonment and the constitutional presumption in favor of release with bail or other conditions does not apply, "the presumption is switched so that the norm is incarceration and not release." State v. Blackmer, 160 Vt. 451, 458, 631 A.2d 1134, 1139 (1993).

         ¶ 4. The constitutional standard of proof-that "evidence of guilt is great"-is satisfied when the State can meet the standard of Vermont Rule of Criminal Procedure 12(d). State v. Duff, 151 Vt. 433, 440, 563 A.2d 258, 263 (1989) ("Accordingly, we adopt the standards under V.R.Cr.P. 12(d) as the correct standard of review under Ch. II, § 40 of the Vermont Constitution, and under 13 V.S.A. § 7553."). Rule 12(d) permits dismissal of a charge when the State cannot provide sufficient evidence on each element of the charged offense such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. V.R.Cr.P. 12(d)(1) ("The defendant may move for dismissal of the indictment or information on the ground that the prosecution is unable to make out a prima facie case against him."). Thus, a defendant may be held without bail under § 7553 when two requirements are met: (1) the defendant is charged with a crime carrying a potential sentence of life imprisonment, and (2) the State can present evidence that, "taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt." Duff, 151 Vt. at 439, 563 A.2d at 263 (quotation omitted). This Court reviews a trial court's decision to hold a defendant without bail under § 7553, without deference, by examining the record presented in the trial court. V.R.A.P. 9(b)(2). We do so by applying the standard enunciated in Duff. State v. Hardy, 2008 VT 119, ¶ 10, 184 Vt. 618, 965 A.2d 478 (mem.).

         ¶ 5. Applying the standard described above, we now discuss the facts of this case taken in the light most favorable to the State and excluding all modifying evidence.[1] On February 14, 2018, the Fair Haven police department received a call from the Vermont State Police about a possible threat to FHUHS. Based on this reported threat, the Fair Haven police located defendant at the home of one of his friends. Police explained to defendant that they were there because a threat to FHUHS had been reported. Defendant responded that he had problems with the school when he attended, and that he was still kind of upset with the school but had moved past it. Defendant explained to police that he had been engaged in target practice, showed police the empty milk jugs he used for target practice, and said that he had recently purchased a shotgun at a local business after returning to Vermont from a program in Maine. Defendant also showed police the buckshot he was using at the time. The police did not detain defendant because, as the Fair Haven chief testified at the trial court hearing, they did not have probable cause to take any further action at that time.

         ¶ 6. The next day, the Dutchess County, New York, sheriff's office contacted Fair Haven police regarding Facebook messages received by a Dutchess County student from defendant that suggested defendant was making threats against FHUHS. The messages were admitted at the trial court's weight-of-the-evidence hearing. In the messages, defendant writes "[j]ust a few days ago I was still plotting on shooting up my old high school so it's not like I really wanted a future anyways." His messages also spoke approvingly of a recent school shooting in another state. The Fair Haven police chief reviewed the messages and concluded that police should question defendant again.

         ¶ 7. The police detained and interviewed defendant. During this interview, defendant stated that when he attended FHUHS, which he left permanently in 2016, he had planned to commit a mass shooting at the school. He also stated that until about a week or two prior to the interview, he was still thinking about committing a school shooting at FHUHS, though later in the interview he also admitted to discussing school shootings a day or two earlier in the Facebook messages described above. He discussed the need to go to FHUHS before the shooting to observe the School Resource Officer's habits and pattern of behavior in preparation for any shooting because, as defendant noted, the Officer would likely be the only person in the school that could stop defendant once a shooting began. Defendant had not yet gone to the school to observe the Officer. Defendant also told police that he planned to conclude any shooting in the school's library, in mimicry of the Columbine shooting, and discussed the kinds of guns and other items that he would want to have for a school shooting. Defendant told police that he had converted money from his bank account to Bitcoin, installed a browser that would allow him to access the dark web, and intended to purchase a handgun with Bitcoin on the dark web. He had been unable to purchase this handgun, which is included in the lists of needed equipment in defendant's journal as described below, because the value of defendant's Bitcoin had diminished. Defendant told the officers that he wanted to exceed the body count from the Virginia Tech shooting and that he had chosen his ammunition accordingly. Finally, defendant told police that he wanted to commit a mass shooting on the anniversary of the date of the Columbine school shooting but that FHUHS would not be in session at that time, and he instead would commit any shooting on March 14th.

         ¶ 8. Police searched defendant's car after he was detained and found a shotgun and seventeen rounds of ammunition. Police also found four books related to school shootings, including the Columbine massacre, as well as defendant's journal. The journal was admitted into evidence at the trial court's hearing. Defendant had placed a label on the front of the journal, which read "The Journal of an Active Shooter." In the journal, defendant expresses suicidal ideation and his desire to commit "suicide by homicide." In an entry dated October 25, 2017, he writes that he wants to commit suicide "in a bigger and better way than just the stereotypical suicide." Regarding his alleged plan to commit a mass shooting at FHUHS, in an entry dated November 29, 2017, he writes:

I've had a change in plans. The day will be coming much more sooner than previously thought. I've realized the huge importance of being able to kill the kids that I actually know vs. waiting a year or so until they're all gone. I'm aiming to kill as many as I can and whoever I can, but it'd also be more fun and satisfying to kill a lot of the dumb fucks that I actually went to school with, I know what they're like and how idiotic they are. With the sudden shift in plans, that also means that I need to prepare and gather supplies quicker. It shouldn't take too extremely long to buy the guns, but it'll be difficult to make the bombs since I don't really have a good place to practice detonating them, but I'll probably figure it out.

         By entry dated December 4, 2017, he writes: "It would save me a lot more energy and hopelessness to take myself out now. But I also can't abandon my plan. . . . From the time I had the first initial thoughts of shooting up FHUHS, it was too late to turn back on it." Defendant's journal includes lists of materials, including several different kinds of guns, that defendant wanted to have for a school shooting, as well as possible dates for a school shooting according to the FHUHS calendar. The last entry in defendant's journal before he was arrested, which is dated February 3, 2018, describes his unsuccessful attempt to buy a shotgun in Maine. He indicates that he will take a "low key trip to VT soon to get the shotgun and hopefully rifle."

         ¶ 9. After searching defendant's car, police went to defendant's father's house. Defendant's father gave police a second copy of the book about the Columbine school shooting found in defendant's car and a shotgun belonging to defendant. The shotgun had a modified stock and barrel, such that the total size of the gun was shorter than a typical shotgun.

         ¶ 10. On February 16, 2018, defendant was arraigned on the four offenses described above and held without bail pending a weight-of-the-evidence hearing. The trial court held a hearing over two days in late February and early March 2018. The trial court issued an order holding ...


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