In State v. Atherton a/k/a Melton, 2016 VT 25 (Feb. 26, 2016), the Vermont Supreme Court affirmed a judgment of conviction of sexual assault. Defendant argued that the seating of two biased jurors violated his right to an impartial jury; that the court committed prejudicial error by prohibiting him from using a prior conviction to impeach a witness; and that the prosecutor’s comments during closing argument violated his right to a fair trial. The Court rejected all three arguments.
Issue: First, two jurors had checked “yes” on a jury questionnaire indicating that they knew someone who was a victim of sexual assault and it may affect their ability to be impartial. During voir dire, in response to questioning, none of the jurors expressed any difficulty with being impartial on this basis. Defendant’s counsel did not challenge any juror for cause. The issue is whether the empaneling of those two jurors constitutes plain error. Second, the issue is whether the trial court erred by barring defendant from using a prior conviction to impeach the testimony of a witness. Third, the issue is whether the prosecutor committed error during closing arguments by making introductory comments to appeal to the sympathy of the jury and by commenting on the defendant’s decision not to testify.
Holding: First, the empaneling of the two jurors was not plain error. Based on their answers during voir dire, it did not appear that either juror was actually biased, regardless of answers on the questionnaire that indicated potential bias. Second, although the court failed to consider the factors pursuant to V.R.E. 609, the court’s ruling to exclude the conviction did not have any effect on the verdict and was therefore harmless. The court also noted that the testimony from the witness at issue was limited and cumulative. Finally, the prosecutor’s remarks during closing argument did not constitute error. Although the prosecutor’s remarks improperly appealed to the jury’s sympathy, the “misguided melodrama” was brief. Further, with regards to the defendant’s right not to testify, the court offered a sufficient curative instruction to the jury and the prosecutor’s remarks were not squarely about the defendant’s decision not to testify, but rather arguably about other admissions or false statements by the defendant.