SCOVT reverses dismissal of PCR proceeding, because of procedural unfairness in failing to review amended petition.

In Re Dow, 2019 VT 72 [filed October 4, 2019]

EATON, J. Petitioner, Miles Otis Dow, Jr., filed a motion for post-conviction relief (PCR) with the Windham Civil Division. The Defender General's Office reviewed the petition and determined that petitioner's claims lacked merit, pursuant to 13 V.S.A. § 5233(a)(3). Petitioner amended the PCR petition, adding arguments that had not been reviewed by the Defender General's Office, and proceeded without assigned counsel.The State filed a motion for summary judgment, which the PCR court granted. Petitioner appeals the PCR court's dismissal to this Court, arguing that the PCR court erred in granting the State's motion for summary judgment because it failed to properly address the claims petitioner raised in his amended petition. We reverse and remand for the PCR court to conduct proceedings consistent with this opinion.

The lack of a complete record regarding the court's decision not to grant a second review for the amended petition results in a procedural failing that—in the interest of fairness and due process—requires us to vacate the PCR court's grant of summary judgment in favor of the State and remand for the court to determine whether or not petitioner's amended petition raises claims that may have substance and merit such that additional review by the Defender General's Office is required under 5233.

Impeachment of defendant who talks is not an impermissible comment on silence.

State v. Jeremy Fischer, 2019 VT 39 [filed 5/24/2019]

REIBER, C.J. Following a jury trial, defendant appeals his conviction of sexual assault of a minor in violation of 13 V.S.A. § 3252(c). Defendant argues the trial court violated his due process rights by allowing the State to impermissibly comment on his silence. We affirm.

Here defendant did not assert his right to silence. He spoke with Detective Tallmadge.. Under the facts of this case, commenting on defendant’s omissions does not raise the concerns of fundamental fairness and due process present in Doyle. The prosecution was free to impeach defendant based on what he said and failed to say.

Defendant argues that Ladue allows the State to comment on the omissions in defendant’s statements only when the statements made to the police are inconsistent with defendant’s testimony at trial. 2017 VT 20, ¶¶ 21-25. However, even accepting defendant’s view of Ladue, defendant offered one explanation of the events to Detective Tallmadge. Then, defendant offered a different explanation at trial. 

The fact that defendant offered two independent explanations at two distinct times raises the question of defendant’s credibility—a question that was fairly brought to the jury’s attention.