mime-version: 1.0 content-type: multipart/related; boundary="----=_NextPart_01C56820.097A4F60" This document is a Single File Web Page, also known as a Web Archive file. If you are seeing this message, your browser or editor doesn't support Web Archive files. Please download a browser that supports Web Archive, such as Microsoft Internet Explorer. ------=_NextPart_01C56820.097A4F60 mime-version: 1.0 content-location: file:///C:/23574690/eo04-030.htm content-transfer-encoding: quoted-printable content-type: text/html; charset="us-ascii"
= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-030
= &n= bsp; &nbs= p; = &n= bsp; MAY TERM, 2005
State of Vermont = &n= bsp; &nbs= p; = <= /span>} = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = District Court of Vermont,
Corydon Cochran &= nbsp; &nb= sp;  = ; &= nbsp; }
} DOCKET NO= . 1231-10-02 Wncr
Trial Judge: Patricia Zimmerman
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Defendant Corydon Cochran appeals from his conviction of felony unlawful trespass af= ter a jury trial. He argues that t= he trial court erred by: (1) repeatedly questioning a juror who was reluctant= to announce a guilty verdict when the jury was polled; and (2) admitting a he= arsay statement that the victim had made before trial. We affirm.
In October 2002, defendant was charged with felony unlawful trespass and lewd= and lascivious conduct, among other charges, after Jessica Moseley allegedly f= ound him masturbating in her bedroom. Ms. Moseley indicated in her sworn statement to police that she recognized defendant from the community, and she described him as having straight dark hair, dark eyes, and a dark mustache.
trial, defendant relied on an alibi defense, and argued that Ms. Moseley h=
mistakenly identified him as the perpetrator, noting that he had a full be=
at the time of the incident. Ms.
Moseley testified that she knew defendant, and had recognized him on the
evening in question. She des=
his appearance that night, testifying that he had a mustache but no beard,
although she stated that he had “[l]ooked like he needed a
shave.” On cross-exami=
defense counsel pointed out that in her sworn statement to police and in h=
deposition testimony, Ms. Moseley had stated that defendant did not have a
beard. Ms. Moseley reiterate=
belief that defendant did not have a beard that evening; she emphasized th=
she had no doubt that it had been defendant in her bedroom. At the close of defendant’s=
the State moved to admit Ms. Moseley’s sworn statement to police.
court then charged the jury, informing them that it was their duty to dete=
the facts and to accept the law as instructed by the court. During deliberations, the jury se=
the following question: R=
was [defendant] actually arrested and read his Rights (Miranda)?”
Defendant asked to have the jury polled, and the following colloquy occurred with the eighth juror, Mr. McMann:
Court: = Mr. McMann, what is your verdict on unlawful trespass?
McMann: Um, could I make= a preface before I say anything?
Court: = No. Have you deliberated with the jur= y?
Court: = Okay. And have you made a vote with the= jury on all three charges?
McMann: Yes; but I have qualifications on that.
Court: = Then I’m sending you back to the jury room—
McMann: All right. I take it back. I’ll go along with the jury= .
Court: = Mr. McMann, have you had an opportunity to consult with members of the jury?= p>
Court: = Okay. And during your consultation with= the jury, have you had an opportunity to discuss your thoughts with the jury?<= /p>
Court: = You understand your verdict has to be unanimous, which means you all have to b= e in agreement?
Court: = Does your qualification have anything to do with your verdict?
McMann: Would you please= repeat that?
Court: = What I want to know is, I know that during a jury deliberation there is some gi= ve and there is some take. Peop= le have discussions and they may change their mind on certain things and they may = not change their mind on certain things. What I’m asking you is, you’ve indicated that you have = some qualifications. What I want = to know is do your qualifications have anything to do with the verdict? You may ha= ve entered into discussions that you didn’t want to enter into, which i= s not for any of us to know. What = I want to know is if your qualifications have anything to do with the verdict.
McMann: Well, what I believe—
Court: = No. Mr. McMann, I’m not trying = to give you a hard time. This is a s= erious case. You’ve had an opportunity to deliberate. Y= our foreperson has indicated that the jury has a verdict, what I need to know = is what your verdict is, and if you agree with the jury’s verdict on ea= ch one of the counts.
Court: = What is your verdict on unlawful trespass?
Court: = What is your verdict on lewd and lascivious conduct?
McMann: Not guilty.
Court: = And what is your verdict on driving under the influence of intoxicating liquor= ?
The final four jurors then indicated their assent to the verdict.
Defense counsel then asked the court if it would like to make one last inquiry as = to whether the jury was truly unanimous and whether anyone had had to abandon firmly held beliefs merely to go along with the group. Counsel suggested that inquiries = not be made of the entire group because juror McMann might feel pressured. He asked that the court give McMa= nn an opportunity to voice his reservations or concerns, or at less express whet= her the verdict was indeed unanimous. The following exchange then occurred between the court and juror McMann:
McMann, why don’t you sit where you had been sitting. Mr. McMann, we’re not tryin=
give you a hard time; okay? I
don’t want you to think that either myself or either one of the atto=
are trying to pressure you in any way, and that the difficulty that we fac=
that we have no right to know, nor are we asking you, what it is you spoke
about in the jury room. Do y=
understand what I mean? Your
deliberations in the jury room are between the twelve of you. We have no right to know that.
McMann: I understand.
Court: = Okay. You had indicated that you agreed= with the verdict, but you also said that you had some reservations. I want to be real clear. Do your reservations have somethi= ng to do with your decision on the verdict or do you have some reservation about= some questions or issues that you discussed while in the jury room?
McMann: I don’t kn= ow how to characterize this, but from what my experience is, um, the defendant has certain rights under law.
Court: = Uh-hum.
McMann: And one of those= rights is due process of law. I don’t believe that due process was followed in this case.
Court: = And did you hear my instruction when you had that question?
McMann: I think I rememb= er it, but I don’t know how it applies to my feelings on this.
Court: = Okay. Your feelings are one thing, and = I gave you jury instruction on that. You may not agree with the law as I gave it to you. I mean, you have an absolute righ= t to disagree with it, but issues regarding due process are not for your consideration. There’s nothing before you on that issue. That’s a legal issue. It’s not an issue for the jury. You only deal with the facts, so = while you may disagree with that, you’ve indicated that you can follow the court’s instructions.
Court: = Right?
McMann: I can follow the court’s instructions. I understand that but when you’re a juror you have a certain responsib= ility to the defendant. It could b= e any one of us. I believe that all persons must have due process of law, especially under the Miranda Rights.= Now I don’t recall reading anywhere where Miranda was outlawed or disqualified from jury trials, so that’s why I couldn’t understand why the process of questionin= g the defendant without advising him of a right to a lawyer beforehand. The State trooper used leading qu= estions to intimidate---
Okay. Let me stop you right there. That question came out to us by t=
at 10:35, and I’ll read the question again to make sure you understo=
the question, which is exactly what you’re telling me. [Reads earlier
question from jury]. My answ=
you: As a matter of law was that Miranda is a legal issue, that the judge =
the trier of the law and that you as a jury are the trier of the facts.
And that’s all the jury hea=
factual issues. And thatR=
why I told you that it was not a factual issue for your consideration or
deliberation. Do you underst=
McMann: Well, yes, I do now. That the Court, the Jud= ge, will rule on due process and Miranda Rights.
Court: = It’s all done before trial. It= 217;s not before you.
McMann: Oh. If I’d known that I wouldn&= #8217;t have objected so much. I tho= ught that the decision would involve all aspects of the case.
Court: = No. That’s why you only hear the facts. That’s why when= we had some breaks in the trial and the lawyers came up to the bench, there were = legal issues. Do you understand th= at?
McMann: Oh, I see.
Court: = Okay. Based on that, what is your verdi= ct on unlawful trespass?
Court: = What is your verdict on lewd and lascivious conduct?
McMann: Not guilty.
Court: = What is your verdict on driving under the influence of intoxicating liquor?
Defendant did not object during this exchange. At its conclusion, however, defense counsel noted that he “wouldn’t say that [he didn’t] have any concerns” = about the unanimity of the verdict but he couldn’t “think of anythin= g we can do to address it at this time.”= The court then concluded,
Based on Mr. McMann, I asked for more clarification, and based on Mr. McMannR= 17;s responses, I can’t find that there’s any jury irregularity or = that their verdict was not unanimous. = span>It appears that perhaps Mr. McMann didn’t quite understand my answer to= the second juror question, but based on further inquiry the Court will find th= at Mr. McMann is in agreement with the jury’s verdict and will enter a verdict of guilty on unlawful trespass, not guilty on lewd and lascivious conduct; and guilty while driving under the influence of intoxicating liquor.
Defendant first argues that the trial court violated V.R.Cr.P. 31(d) and his constitutional rights to an independent unanimous jury verdict by repeated= ly questioning juror McMann. Ac= cording to defendant, McMann expressed reluctance to assent to the guilty verdict = on the unlawful trespass charge, and the court’s response exerted undue pressure on him to accede to the majority’s verdict. Defendant maintains that the “unique circumstances of this case” make it even more apparent= that the trial court’s lengthy and repeated questioning of the juror had a coercive effect on his ultimate acquiescence in the guilty verdict.
A defendant cannot be found guilty of a crime unless the jury renders a unan= imous verdict. Vt. Const. Ch. I, a= rt. 10; V.R.Cr.P. 31(a). Rule 31(d) provides that when the jury has returned a verdict, but before it is recor= ded, a party or the court may request that the jury be polled. If the poll does not reveal unani= mous concurrence in the verdict, “the jury may be directed to retire for further deliberations or may be discharged.” V.R.Cr.P. 31(d). The trial court has discretion in conducting a jury poll, and in questioning jurors during or after a jury p= oll. See United States v. Gambino= u>, 951 F.2d 498, 501 (2d Cir. 1991) (explaining that courts have interpreted anal= ogous federal rule, F.R.Cr.P. 31(d), as leaving the method of conducting jury po= ll to trial judge’s discretion, and because rule entrusts judge with a mea= sure of discretion, “the reasonable exercise of this discretion should be accorded proper deference by a reviewing court” (quotations omitted)= ); see also State v. Holloway, 740 P.2d 711, 715 (N.M. Ct. App. 1987) (recognizing that “trial court has considerable discretion regarding= the manner in which the poll and subsequent questioning are conducted”).=
Defendant has not demonstrated that the court abused its discretion here. The purpose of a jury poll “= ;is to ascertain that each of the jurors has given a verdict uninfluenced by coer= cion or inducement.” Reporter’s Notes, V.R.Cr.P. 31; see also Gambino, 951 = F.2d at 502 (explaining that jury poll serves to “test the uncoerced unan= imity of the verdict by requiring each juror to answer for himself, thus creating individual responsibility, eliminating any uncertainty as to the verdict announced by the foreman” (quotations omitted)). As the Holloway court expl= ained, “[w]here a juror’s response indicates uncertainty concerning unanimity, a jury poll requires exploration of the uncertainty or dissent.” 740 P.2d at = 715. The case on which defendant prima= rily relies, United States v. Edwards, 469 F.2d 1362 (5th Cir. 1972), illustrates this point. In Edwards, the court found reversible error where the trial court failed to properly resp= ond to a juror’s statement that, “It’s my verdict, but I am = still in doubt.” Id. = at 1366. The trial court respon= ded, “All right, it’s your verdict” and continued polling the jury. Id. When defendant objected, the foll= owing exchange occurred:
The Court:  = ; The juror stated that this is her verdict.&nb= sp; Is that what you said?
[Juror]: = Yes, sir.
The Court: = All right.
[Defense Counsel]: &nb= sp; Your Honor, I believe she said it was her verdict but she was still in doubt. <= /p>
The Court: = She has said that this is her verdict. Is that correct?
[Juror]: = Yes, sir.
The Court: = All right. The verdict will be received.
In reversing and remanding the defendant’s conviction, the court of app= eals rejected the government’s contention that the trial judge’s questioning had clarified the juror’s response, making further deliberation unnecessary. Th= e court noted that at no time had the juror stated unequivocally that she concurre= d in the verdict, and moreover, the trial judge had refused to inquire into the meaning of the phrase “but I am still in doubt.” Id. at 1367. The court concluded the trial court’s conduct had been coercive, and it held that “where a p= oll indicates a lack of unanimity the trial court must refrain from attempting= to extract unanimity by questioning from the bench and must either order the = jury to retire for further deliberations or dismiss them.” Id.
contrast to Edwards, and the other cases on which defendant relies,
there is no suggestion of coercion in this case, nor any attempts by the t=
court to “extract unanimity by questioning from the bench.”
Defendant next asserts that the court committed reversible error in admitting Ms. Moseley’s statement to police. He maintains that the statement was not admissible as a prior consi= stent statement under V.R.E. 801(d)(1)(B), and it served to improperly bolster h= er trial testimony with inadmissible hearsay. According to defendant, in light of the split verdict and Ms. Moseley’s erroneous physical description of him, the error was not harmless beyond a reasonable doubt.
We reject this argument. Even a= ssuming that the court erred in admitting this evidence, any error was harmless be= yond a reasonable doubt. See S= tate v. Oscarson, 2004 VT 4, ¶ 29, 176 Vt. 176, (explaining that court may uphold conviction if error in admission of hearsay testimony was harmless beyond a reasonable doubt); State v. Sweeney, 2005 VT 11, ¶&pa= ra; 12-14, 869 A.2d 137 (concluding that any error in trial court’s admi= ssion of prior consistent statement was harmless beyond a reasonable doubt). In this case, the evidence challe= nged by defendant was cumulative. See Oscarson, 2004 VT 4, ¶ 32 (setting forth factors to be considered= in harmless error analysis, including the importance of the testimony in the prosecution’s case, and whether the testimony was cumulative). Ms. Moseley’s statement to = police contained her account of the incident; Ms. Moseley testified at trial to a= ll of the material contained in the statement without objection from defendant.<= span style=3D'mso-spacerun:yes'> Defense counsel cross-examined Ms. Moseley regarding the evening’s events, including her identification= of defendant and the description of defendant that she had provided in her po= lice statement. Moreover, as the = State points out, Ms. Moseley’s physical description of defendant in her s= worn statement—as at trial—supported defendant’s, rather than= the State’s, case. The sta= tement itself was of little corroborative value, and any error in its admission w= as harmless beyond a reasonable doubt. See Sweeney, 2005 VT 11, ¶ 14 (reaching same conclusion where hearsay testimony was cumulative, and trial court made no mention of hearsay statement in its judgment order).=
BY THE COURT:
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice