Double Jeopardy Applied to Vacate Criminal Conviction and Dismiss Criminal Charges After Mistrial

In State v. Dow, 2016 VT 91 (August 26, 2016), the Vermont Supreme Court affirmed an aggravated assault conviction, vacated a simple assault conviction, and reversed the denial of a motion to dismiss other criminal charges.

Issue: Defendant was charged with five criminal counts related to his conduct towards his wife and two criminal assault charges related to his conduct towards the responding police officers. Defendant was convicted of the assault charges related to the responding police officers. A mistrial was granted regarding the charges related to defendant’s wife, and the court denied a motion to dismiss these charges on double jeopardy grounds. Defendant appealed the convictions and the denial of his motion to dismiss, arguing: 1) that there was insufficient evidence regarding intent for the convictions; 2) that the court erred in the jury instructions; 3) that the trial court erred in admitting evidence regarding prior bad acts; and 4) that the two assault convictions and denial of the motion to dismiss violated double jeopardy.

Holding: The Court held that there was sufficient evidence that defendant acted with the specific intent to threaten the officers when he angrily ran down the hall towards them carrying a knife. It also held that the jury instructions which referred to specific intent as “secret intent” accurately communicated the law, but urged trial courts to use the correct statutory language. Further, it upheld the trial court’s refusal to include a definition for “threaten,” noting the trial court’s duty to avoid confusion by over-defining terms. When considering the admission of prior bad acts, it noted that prior history of domestic abuse may be admitted to provide situational context where the evidence is more probative than prejudicial. However, the Court declined to address this issue because it found any error would be harmless since the prior bad acts concerned the wife, not the charges related to the police officers, and the trial court addressed this issue in its jury instructions. After reviewing the difference between waiver and forfeited-but-reversible error, the Court found that the defendant’s double jeopardy claim for the two assault convictions was forfeited, but not waived, so the claim would be reviewed for plain error. It held that simple assault is a lesser included offense for aggravated assault with a deadly weapon, so conviction for both offenses violates double jeopardy and was plain error. As the State has the right to choose which offense will stand and did so, the Court vacated the conviction for simple assault. The Court then addressed the double jeopardy issues surrounding the mis-tried charges. It held that a trial judge’s decision to grant a mis-trial based on prejudicial remarks by defense counsel is granted deferential review. However, it held that the State failed to establish the manifest necessity of the mis-trial to avoid double jeopardy in this case, as there was insufficient evidence of prejudice and the defense counsel’s statements did not violate any of the trial court’s instructions, a Rape Shield Law or a specific rule of evidence. Therefore, it granted the motion to dismiss the mis-tried charges.

Dissent: Reiber, C.J. wrote a dissent regarding double jeopardy and the mistrial, which was joined by Justice Eaton.