Williams v. State of Vermont ( 2017 )

Williams v. State of Vermont, No. 390-8-10 Frcv (Harris, J., July 28, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
STATE OF VERMONT
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SUPERIOR COURT CIVIL DIVISION
Franklin Unit Docket No. 390-8-10 Frcv
Williams vs. State of VT
ENTRY REGARDING MOTION
Count 1, Post Conviction Relief (390-8-10 Frcv)
Title: Motion in Limine (Motion 8)
Filer: Co-counsel
Attorney: Zachary Jian Chen
Filed Date: April 7, 2017
Response filed on 06/30/2017 by Attorney Seth E. Lipschutz for Plaintiff Alphonso Williams
Petitioners response to States Motion in Limine w/attachments fi;
Response filed on 07/14/2017 by Attorney Zachary Jian Chen for party 2 Co-counsel
States Reply regarding Motion in Limine: Jennifer Mims fi; Certificate of service fi;
This is a post conviction relief (“PCR”) case involving claims of ineffective assistance of
counsel (“IAC”). Pending before the court is the State’s motion in limine to bar use at trial of the
testimony of a juror, Jennifer Mims (“Ms. Mims”), relating to events that occurred during the
Plaintiff’s criminal trial.
Plaintiff, Alphonso Williams (“Mr. Williams” or “Plaintiff”) is represented by Attorney
Seth Lipschutz and the State of Vermont by Attorney John Treadwell and Attorney Zachary
Chen. The parties’ filings describe uncontested facts before the court on the motion. (It is
uncontested what Ms. Mimms said in her affidavit and at deposition after conclusion of Mr.
Williams’ criminal trial. Whether those or similar testimony are admissible in this IAC matter is
the centerpiece of the pending motion).
The pertinent are summarized below.
1. In 2008 Mr. William faced several criminal charges in Franklin County – namely first degree
aggravated domestic assault, second degree unlawful restraint, vehicle operation without the
owner’s consent, sexual assault and escape. (State v. Alphonso Williams, Docket 114-11-08
Frcv).
2. Mr. Williams was represented by Attorney Danial Maguire. On 1/6/09 the jury draw
occurred in the case and a jury was empaneled, that included Ms. Mims. During the juror
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questioning limited questioning of the potential jurors’ past experiences with sexual abuse
was elicited.
3. During the voire dire Attorney Maguire asked the panel if anyone would have difficulty
remaining fair and impartial where the issue was alleged improper sexual conduct and alleged
domestic abuse was part of the evidence. One panel member responded and volunteered that
she had been the victim of sexual abuse as a child, and was then excused by the judge.
4. Ms. Mims did not respond to the general inquiry to the group. She had experienced prior
sexual abuse.
5. No more particularized questioning of the juror panel, or offers to respond to
questions about sexual or domestic abuse history in private (in chambers before the
judge and counsel, outside the presence of other potential jurors), was discussed.
6. The panel was selected, including Ms. Mims.
7. The trial occurred. Mr. Williams was on 1/22/09 convicted on all of the charges
except the escape charge. The conviction was affirmed by the Vermont Supreme
Court in State v. Williams, 2010 WL 712201 (2/25/10).
8. Following an investigation that started in 2013, Ms. Mims gave a 7/24/13 affidavit,
and later a 3/27/17 deposition.
9. In her affidavit Ms. Mims stated that:
a. She was shocked potential jurors had not been questioned if they had been the
victim of abuse during voire dire.
b. That if she had been asked that she would have revealed that her ex-husband had
abused her and been convicted of domestic abuse in 2007.
c. That if she had been asked if she could be fair or impartial in a domestic and
sexual abuse case, she would have said “no”.
d. She does not think Mr. Williams is guilty and her prior abuse was on her mind
when she deliberated and not something she could set aside in the deliberations.
10. Ms. Mims deposition testimony was to similar effect. (See transcript at page 9, lines 15-23;
page 15, line 19 to page 16, line3; Page 22, lines 1 to 21; page 31, lines 9 -21; page 31, line
22 to Page 32, line 5).
Legal Analysis
The State argues Ms. Mims’ testimony is inadmissible in the IAC claim trial in this
matter, as it is barred under Vermont Rule of Evidence 606(b). This rule provides in pertinent
part:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the jury's deliberations or to the
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effect of anything upon his or any other juror's mind or emotions as influencing him to
assent to or dissent from the verdict or indictment or concerning his mental processes in
connection therewith, nor may his affidavit or evidence of any statement by him
concerning a matter about which he would be precluded from testifying be received; but
a juror may testify on the question whether extraneous prejudicial information was
improperly brought to the jury's attention, whether any outside influence was improperly
brought to bear upon any juror, or whether any juror discussed matters pertaining to the
trial with persons other than his fellow jurors.
V. R. Evid. 606(b)(italics added).
Rule 606(b), like the similar federal rule on which it is based, strikes an important
balance between “ensuring freedom of deliberations in the jury room” and the competing
“paramount need of preserving the integrity of trial by jury”. State v. Agri, 2012 VT 4 Para .17,
191 Vt. 162, quoting Bellows Falls Vill. Corp. v. State Highway Bd., 123 Vt. 408, 411 (1963).
Initially in the 1700’s courts applied bright line rule that the testimony of a juror is not
available to impeach the verdict in the case in which her or she participated. Bellow Falls, 126
Vt. at 411; Vaise v. Delaval, (1785) 1 T.R. 11; 8 Wigmore, Evidence, § 2353 pp. 682 et seq; 27
Fed. Prac,. & Proc. Evid., Section 6071 (2d ed.). The Vermont Supreme Court closely guarded
the juror deliberation process from review, noting in one 1802 decisions, Robbins v. Windover, 2
Tyler 11, 1802 WL756 it was reluctant to “open a novel and alarming source of litigation” that
would make it difficult to say when a suit was terminated. See cases and discussion in Bellows
Falls, supra.Over time federal and model state rules of evidence emerged that allowed limited
exceptions to the protective common law approach. A limited exception, allowed under
Vermont Rule of Evid. 606(b), and also included in the similar federal rule, is whether
“extraneous prejudicial information was improperly brought to the jury's attention”.
Much of Ms. Mims’ affidavit and deposition involves her statements how her sexual
abuse past experiences may or would have influenced her Williams jury deliberations. This kind
of testimony is clearly barred as a form of “any matter or statement . . . to the effect of anything
upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the
verdict or indictment or concerning his mental processes in connection therewith” covered under
the Rule 606(b) exclusion.
Plaintiff argues that the alleged lax or non-thorough questioning of prospective jurors at
the voire dire in the case was a form of “extraneous prejudicial information . . . brought to the
jury’s attention” excepted by Rule 606(b)’s prohibition against use. Mr. Williams seeks to use a
juror testimony not to show information given or not given to jurors that was used in their
deliberations, but Mr. Williams’ own lawyer’s alleged failings by what he did, or did not do, in
picking the jury.
Former Judge (and now Associate Justice) Harold Eaton has observed, “[t]he exception
to Rule 606(b) normally involves situations where the jury has been exposed to prejudicial
information from some extrinsic source-such as a newspaper editorial bitterly denouncing one of
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the trial participants, Bellows Falls Village Corp., 123 Vt. at 409, or the court officer introducing
additional evidence into the proceedings by pacing off for the jury, during deliberations, ‘the
distance from which the defendant allegedly shot the victim.’ State v. Corey, 151 Vt. 325, 326-27
(1989). Buker v. King, 2009 WL 5454432, Docket No. 523-11-05 Wrcv (8/5/09).
Former trial court judge (and then Vermont Supreme Court Associate Justice and now
U.S. District Court Judge) Geoffery Crawford has similarly noted that under Vermont Rule 606:
“extraneous prejudicial information” generally means newspaper accounts, internet
searches, or unofficial visits by a juror to the relevant location. State v. Abdi, 2012 VT 4,
191 Vt. 162 (juror researched cultural background of defendant); State v. McKeen, 165
Vt. 469 (1996) (juror discussed details of case with friend at a bar and told fellow jurors
street value of cocaine); Bellows Falls Vill. Corp. v. State Highway Bd., 123 Vt. 408(1963) (one juror visited premises at issue and several jurors read an editorial with a very
biased review of the case)”
Heco v. Johnson Controls, Inc., 2013 WL 6978667, Docket No. S08692010, (11/1/13).
The court does not find Ms. Mimms’ observations or proffered testimony as to her
reaction to the jury questioning falls within the “extraneous prejudical information . . . brought
to the jury’s attention” for several reasons.
The information was not from an extrinsic source - that is some source other than the
open court proceedings in the public, and recorded, jury trial proceedings. As noted, other
Vermont judges have limited the “extraneous” prejudicial information exception to information
received by the jury outside of the trial process itself. The court believes the “extraneous” nature
of the information means it has to come from some source other than the trial proceedings
themselves. For criminal trials, the right to representation of counsel, to make trial objections
and rulings; to make post trial motions, to bring appeals, and to pursue ineffective assistance of
counsel claims for ineffective counsel – all serve as protections to a fair trial. What is said or
done (or not said or done) at a trial hearing is preserved via an official record (recordings and/or
stenographer transcript) and is subject to review and correction. Such proceedings are intrinsic
to the trial. It is an unwarranted expansion of Rule 606(b)’s limited exception to characterize
such core trial proceedings as a form of “extraneous” prejudicial information. If Rule 606(b)
became the vehicle for a defendant to seek to overturn a trial result based on jurors’ alleged post-
trial reactions to the open court proceedings, courts would be opening “the novel and alarming
source of litigation” the Robbins Court warned against in 1802.
These kinds of considerations caused United Supreme Court to apply the Rule 606(b)
“no impeachment” doctrine to bar use of juror evidence of alleged lying of a juror during voire
dire. In Warger v. Shauers, 135 S.Ct. 521, 190 L.ed.2d 422 (2014), after a civil verdict was
rendered the losing party sought to proffer evidence that the juror forewoman failed to disclose
bias during voire dire. The Warger Court found that Rule 606(b) generally applies to contentions
about a juror lying during voire dire, even if those events did not occur in the jury room. The
Court reasoned when voire dire dishonesty is being asserted to overturn a verdict it “entails an
inquiry into the validity of [the] verdict” under the initial portion of Rule 606(b) that generally
bars use of juror testimony. The Warger Court concluded even if the juror had lied at voire dire
to conceal bias, other protections adequately provide assurance of juror impartiality – namely
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“the parties' ability to bring to the court's attention any evidence of bias before the verdict is
rendered, and to employ non-juror evidence even after the verdict is rendered”. 135 S.Ct. at 529.
This accords with this court’s reasoning stated above as to the error and unfairness protections
afforded to uncover alleged irregularities in the open court proceedings.
The Warger Court declined to apply the Rule 606(b) “extraneous” prejudicial
information” exception, taking a slightly different view of the “extraneous” term than this court.
The Warger Court reasoned “extraneous” meant to derive from a source “external” to the jury,
such as publicity and information related specifically to the case the jurors were meant to decide.
The Warger Court explained by contrast “internal” information (still protected under Rule
606(b)) is the experiences that jurors bring with them to the jury room, including general views
about case issues, derived from the jurors’ life experiences, but as to which experiences the
subject juror does not provide any specific information to the jury group during the trial and
deliberations. 135 S.Ct. at 529. Under this Warger-infused view, Ms. Mimms’ unexpressed
personal sexual abuse experiences, not being shared with her jurors, was an “internal” form of
information she brought for herself to the jury room. It is not included within the “extraneous
information” Rule 606(b) exception.
In considering the motion in limine the court has considered the fact that this matter
involves proceedings in Mr. Williams’ prior criminal trial.
Although the Sixth Amendment gives criminal defendants some protections, the
United States Supreme Court has concluded Rule 606(b) still precludes a criminal defendant
from introducing evidence that multiple jurors had been intoxicated during trial. It has rejected
the contention that the Rule 606(b) exclusion’s application violated the defendant’s Sixth
Amendment right to “ ‘a tribunal both impartial and mentally competent to afford a hearing.’ “
Tanner v. Murray, 476 U.S. 28, 36, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). The Tanner Court
reasoned the defendant’s right to an unimpaired jury was sufficiently protected by voir dire, the
observations of court and counsel during trial, and the potential use of “nonjuror evidence” of
misconduct. 483 U.S., at 127, 107 S.Ct. 2739. This is in accord with what this court has stated
above and the Warger Court’s similar observations in the civil context.
As the State describes in its brief, in Pena-Rodriguez v. Colorado, 137 S.C.t 855, 867,
197 L.Ed.2d 107, (2017), the United States Supreme Court recently weighed the policies against
the “no impeachment” common law rule, and the similarly worded federal Rule of Evidence 604
to carefully consider when fundamental fair trial concerns and constitutional limitations may
warrant other exceptions to the “no impeachment” rule. So far the only exception that has been
recognized where “a juror makes a clear statement that indicates he or she relied on racial
stereotypes or animus to convict a criminal defendant”. Id.As described in the Tanner Court’s “external/ internal” analysis, the court believes the
extraneous information exception does not reach information that a single juror may believe
impacted his or her conduct, but which information never reached the jury room to impact the
full jury. The exception is limited to what is brought to the “jury’s attention” (emphasis added),
not something one juror allegedly thought about, but never expressed, and which impacted that
silent juror’s deliberative process. The exception does not serve as a tool to ferret out jurors’
post trial reactions to trial proceedings or facts that they may have further pondered after trial
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when questioned. The “extraneous information” exception relates to information that may have
improperly influenced they jury’s deliberations as a group. One court has characterized the
identically stated portion of the federal rule as referring to “extra-record facts introduced into the
jury room”. Lopez v. Aramark Uniform & Career Apparel, Inc., 417 F. Supp.2d 1062, 1072
(N.D. Io. 2006).
As noted below, Vermont cases recognize that jurors are not allowed to testify about if or
how “extraneous information”, when they have been exposed to it, influenced their verdict. The
Supreme Court has cautioned that under Rule 606(b)’s limitations “courts will not consider
attempts through the jurors themselves to establish misconduct occurring during jury
deliberations concerning the mental processes or arguments of jurors.” Labate v. Rutland
Hospital, 2015 VT 38, Para. 16, 200 Vt. 438, 448. The court agrees with the State that to allow
Ms. Mimms’ testimony to be admitted and used as requested by Plaintiff, crosses the line into
such inadmissible uses.
Based on these considerations, the motion in limine to exclude testimony from Ms.
Mimms in this matter is GRANTED.
As an additional consideration, the court notes that even if the proffered Mimms’
testimony might otherwise be relevant, it appears to be inadmissible for other reasons. Even if
Ms. Mimms were allowed to testify as to the lack of individualized sexual abuse history
questioning at voire dire, as a form of “extraneous information”, Vermont law is quite clear that
she is not permitted to testify whether the information influenced her or the verdict. See State v.
Abdi, 2012 VT 4, Para. 17, 191 Vt. 162, 171-172. See also State v. Hudson, 163 Vt. 316, 324,
658 A.2d 531, 536 (1995) (holding that trial court inquiring into claim of extraneous prejudicial
information under Rule 606(b) “properly refused to consider statements by the jurors as to what
may have influenced their deliberations”); State v. Forte, 159 Vt. 550, 561, 624 A.2d 352, 359
(1993) (observing for benefit of trial court on remand that we “seriously question the
interrogation of the jurors on their reaction to the evidence”). Jurors at most may only testify “as
to whether extraneous prejudicial information was brought before them.” Abate, supra.
Assuming the alleged voire dire questioning lapses are “extraneous information” for
Rule 6060 (b) purposes (which the court does not find), if Ms. Mimms’ was allowed to offer
such limited testimony, she would merely testify as to what was asked or not asked at voire dire
(and not its impact on her or her reactions). Labate, supra; Abdi, supra. A quick facial review
of Ms. Mimms’ deposition and affidavit, shows she has a very sketchy recall of the voire dire. It
appears that the voire dire transcript (attached to the State’s related motion for summary
judgment) shows Ms. Mimms’ recall is inaccurate as to whether the panel had been asked if they
were hesitant to sit on a case involving domestic and sexual assault. If Ms. Mimms was
proffered merely to testify what occurred at the voire dire, even her statements of what she thinks
Mr. Williams’ counsel said would be misleading or confusing, and cumulative as compared
simply to the introduction and use of the recorded transcript of the proceeding. Given Ms.
Mimms’ inability to testify about the impact of the voire dire on her deliberations (even if the
evidence was otherwise admissible under Rule 606(b)), at best she would testify as to what
occurred. In that regasrd her recollection of what occurred is not the relevant issue – just what
transpired.
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There would be significant Rule 403 issues as to whether Ms. Mimms’ testimony should
be allowed given the availability and opportunity to admit the hearing transcript. If what was
asked or not asked at voire dire were found to possibly be “extraneous information”, which the
court does not find, the fact it was “brought to the jury” would be shown by the voire dire
transcript and Ms. Mimms’ testimony would not be needed.
In other words, to the extent what Mr. Maguire asked or did not ask the jury panel is relevant to
Mr. Williams’ ineffective assistance of counsel claims, such evidence is readily available by the
mere introduction of the voire dire transcripts. Sketchy recollections of persons in the room
(including jurors and non jurors) serve as a poor substitute, and are wrought with confusion or
unfair prejudice by inaccurate recollections. Rule 606(b)’s mandate is that Ms. Mimms’ unstated
reaction to the voire dire (or its impact on her) are not admissible. Those types of statements
are “precisely the kind of ‘statement during deliberations’ or ‘mental process’ toward which Rule
606(b) provides impermeable prophylaxis”. Newman v. Hobbs, 2004 WL 5460787, Docket No.
1164-01Cncv, (1/2/04)(Katz, J.), citing Tanner, supra.
ORDER SUMMARY
The motion in limine to exclude testimony from Ms. Mimms in this matter is
GRANTED.
Because this motion is tightly integrated to the State’s Motion for Summary Judgment,
as stated in the court’s 4/25/17 entry order, the Plaintiff shall have 30 days from the date of entry
of this order to file its opposition to the State’s motion for summary judgment. Thereafter the
State will be afforded a Rule 6/ Rule 78 reply brief opportunity on its summary judgment
motion.
Electronically signed on July 28, 2017 at 12:12 PM pursuant to V.R.E.F. 7(d).
_________________________________________
Michael J. Harris
Superior Court Judge
Notifications:
Seth E. Lipschutz (ERN 3161), Attorney for Plaintiff Alphonso Williams
John R. Treadwell (ERN 2213), Attorney for Defendant State of VT
Zachary Jian Chen (ERN 7294), Attorney for party 2 Co-counsel
Zachary Jian Chen (ERN 7294), Attorney for party 2 Co-counsel
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