State v. Janette Johnson ( 2011 )

ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-324
SEPTEMBER TERM, 2011
State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Bennington Unit,
} Criminal Division
Janette Johnson }
} DOCKET NO. 625/626-7-11 Bncr
}
In the above-entitled cause, the Clerk will enter:
Defendant Janette Johnson appeals the criminal division’s decision not to amend her
conditions of release to allow her to participate in liturgical dancing. I affirm.
On July 17, 2011, defendant was arrested and, the next day, she was arraigned in
Bennington Superior Court on a charge of aggravated domestic assault with a deadly weapon.
The criminal division released defendant on conditions pursuant to 13 V.S.A. § 7554. In
pertinent part, condition #6 requires that defendant not leave Bennington County without the
permission of the court, and condition #11 imposes a 10 p.m. curfew on defendant. Defendant
moved, pursuant to 13 V.S.A. § 7554, to modify the conditions of release to allow her to attend
church services in Cambridge, New York and to travel with her liturgical dance group. After
some back and forth, on August 15, the criminal division amended the conditions to allow
defendant to attend church in Cambridge on Sundays, but otherwise denied the motion. On
September 2, 2011, the criminal division denied a renewed motion to modify. Defendant filed a
timely appeal to this Court, pursuant to 13 V.S.A. § 7556(b), and this Court held a telephone
hearing with State’s Attorney Alexander Burke and defense counsel James Dingley on Tuesday,
September 20, 2011.
My review of conditions of release is limited by statute. Id. I must affirm a criminal
division’s decision “if it is supported by the proceedings below.” Id. In setting bail, a judge
must determine what are the least restrictive conditions will reasonably assure that defendant will
appear. 13 V.S.A. § 7554(a).
The record reflects that the trial court properly considered the relevant factors in
determining the least restrictive conditions in this case. Defendant is free on her own
recognizance, and she is able to engage in religious worship within Bennington County, as well
as Sunday church services in Cambridge, New York. Although, conditions #6 and #11 restrict
her ability to travel, § 7554(a)(1)(B) contemplates such restrictions on travel, association, or
place of abode where appropriate. In this case, defendant is not a U.S. citizen, is charged with a
felony, and faces potential deportation if she is convicted. She is also charged with violating a
condition of release. Defendant asks that these conditions be modified in a broad manner to
permit travel around New York and New England for church-related purposes. Such an
exemption would, as the State contends, render conditions #6 and #11 entirely open-ended.
Given the nature of the charge, defendant’s circumstances, and the allegation of a violation of
conditions, I conclude that there is a very substantial risk that defendant will not fully abide by
less restrictive and open-ended conditions and will flee to avoid the consequences of a
conviction. Under these circumstances, I find that the court’s decision to deny the motion to
amend to be supported by the record.
Defendant also argues that the conditions of release violate her First Amendment rights to
free exercise of religion. Although defendant has a fundamental liberty interest in the exercise of
her religion, this does not mean that she cannot be subject to conditions of release that restrict the
avenues of religious activity available to her. Such restrictions are permissible as long as they do
not deprive that liberty more than necessary. See U.S. v. Myers, 426 F.3d 117, 125-26 (2nd Cir.
2005). That is, the relevant First Amendment interests are part of the inquiry as to what counts
as the least restrictive set of conditions. In this case, I find the court’s decision in this regard
supported by the record. Therefore, I affirm.
FOR THE COURT:
John A. Dooley, Associate Justice
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