Petition for Writ of Certiorari — Walter Taylor, III, Petitioner v. Vermont

APPENDICES CONTENTS

Page

Appendix A: Decision of the Vermont Supreme Court affirming judgment of

conviction (Dec. 1, 20238)............ssssssceeseeeensseaseceeenseeneneseseeeceseeceecesvescenessenne cs la

Appendix B: Order of the Vermont Supreme Court denying Petitioner’s

motion for reargument (Jan. 8, 2024).......::cccceeeee eee eee eee eeeeeeneeeneeneenaeaeaeeanenen es 16a

Appendix C: Petitioner’s Brief before the Vermont Supreme Court

(Mar. 22, 2023)......c.cssesceserecenseseeeeeeeseeceseaeeensseeeesessaseceseuuuseaesssaensnsnsueaseees 17a

Appendix D: Petitioner’s Motion for Reargument

(Dec. 22, 2023).........+-sssswaareensseonnnneoreeommnnmueneuereneneseemnenmmemmnnoneaeusesennnsesiemnensnes 46a

19

VERMONT SUPREW

ENTRY ORDER FILED IN CLERKS OFSOE

DEC 01 2023

2023 VT 60

SUPREME COURT DOCKET NO. 22-AP-211

MAY TERM, 2023

State of Vermont APPEALED FROM:

}

;

}

Vv. } Superior Court, Rutland Unit,

} Criminal Division

}

Walter Taylor, II } CASE NO. 21-CR-05873

In the above-entitled cause, the Clerk will enter:

Affirmed.

FOR THE COURT:

Kanes rae ‘KscGate Justice

Concurring:

Paul L. [el C hief Justice

VME.

/arold E. Eatofi, Jr., Associate Justice

al Aan

‘aren K, Carroll, Associate Justice

4 Le D. Cohen, Associate Justice

Appendix A at

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter

of Decisions by email at: TUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made

before this opinion goes to press,

2023 VT 60

VERMONT SUPREME CO

FILED IN & Sek'S BENGE

No. 22-AP-211

DEC 01 2023

State of Vermont Supreme Court

On Appeal from

Vv. Superior Court, Rutland Unit,

Criminal Division

Walter Taylor, JII May Term, 2023

David R. Fenster, J.

Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, Rebecca Turner, Appellate Detender, and Clelia Casciola,

Appellate Clerk (On the Brief), Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

41. WAPLES, J. Defendant appeals from his convictions for aggravated assault,

attempted domestic assault, assault and robbery, and obstruction of justice, following a jury trial.

He argues that the trial court erred in denying his request for a voluntary intoxication instruction

and his motion for a judgment of acquittal on the obstruction-of-justice charge. We affirm.

42. The following evidence was presented at trial. On an evening in July 2021,

defendant got into an argument with his ex- girlfriend, who was pregnant with the couple’s second

child. The argument began in defendant’s apartment and continued outside in the apartment

building’s parking lot. Video surveillance captured the argument as well as defendant assaulting

his ex-girlfriend. A neighbor heard the argument and went onto her second-floor balcony to see

what was happening. The parking-lot area was well-lit and the neighbor saw a pregnant woman

and a larger man standing close to one another in an ageressive stance, arguing. The neighbor

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called police. After several minutes, she went outside to observe the events because the argument

was continuing and the police had not yet arrived. The neighbor heard defendant’s ex-girlfriend

tell defendant that she was pregnant and that he needed to stop hitting and hurting her; she saw

defendant shove his ex-girlfriend. The neighbor told defendant to get his hands off the woman

and that the police were on their way. The neighbor was recording the incident on her cellphone;

she wanted proof of what was happening because the police were taking a long time to arrive.

43. Defendant’s ex-girlfriend alerted defendant that the neighbor was recording the

incident on her cellphone. Defendant then charged toward the neighbor, swearing and threatening

to kill her. The neighbor testified that defendant physically attacked her, punching her in the head

and kicking her in the ribs. The neighbor saw defendant pick up her phone from the middle of the

street and leave with it. The phone was never recovered. The neighbor did not see anyone else on

the street that night aside from defendant and his ex-girlfriend.

94. A responding police officer found the neighbor in the road. The neighbor suffered

multiple injuries including a broken nose, fractured ribs, and a large laceration on her forehead

that required ten stitches. The State also submitted, among other things, photographs of the

neighbor’s injuries, video surveillance from outside the apartment that showed the argument and

an assault, and evidence of blood on the steps leading to defendant’s apartment.

45. Defendant’s ex-girlfriend acknowledged fighting with defendant that evening. She

testified that the fight concerned defendant’s drinking and it escalated after she dumped out

defendant’s drink. The argument continued outside where defendant took a swing at her. The exgirlfriend saw the neighbor come outside and yell that she had called the police. According to the

ex-girlfriend, defendant then chased after two men walking down the street; he tried to hit them

but missed and fell down because he was “pretty drunk.” The ex-girlfriend said that one of the

strangers on the street attacked the neighbor. She acknowledged telling police at the time that

defendant hit her in the face, attacked the neighbor, and that she was scared of defendant.

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46. The responding police officer also testified about the events that evening. She

spoke with the ex-girlfriend, located the neighbor, and called an ambulance. The officer found

defendant at the emergency room with one swollen hand and a laceration on the other. Defendant

told the officer that he had been assaulted. The officer observed that defendant appeared mildly

to moderately intoxicated. She testified that defendant was speaking and walking fine; he seemed

very alert as to what was going on; he acknowledged pain by comments he was making; and he

had also chosen to go to the emergency room.

47. Another neighbor who saw the attack also testified. He said he saw a man chasing

a woman on the street and the man then physically assaulted the woman. Another woman came

to the scene and this woman and defendant ran away. The witness did not see any other people on

the street.

48. Defendant did not testify or present any evidence. As discussed in additional detail

below, the court denied defendant’s request for a jury instruction on voluntary intoxication. It

found that the evidence was insufficient to establish that defendant was intoxicated to a point that

would affect his ability to form the necessary mental state for the charged crimes. Defendant

argued in his motion for a new trial that the court erred in denying his instruction request, and the

court rejected this argument on the same ground. The court also denied defendant’s motion for a‘

judgment of acquittal on the obstruction-of-justice charge. It deemed the State’s evidence

sufficient to support a conclusion that defendant assaulted the neighbor because she was attempting

to record the events to provide evidence to police. The jury found defendant guilty of the charges

noted above and this appeal followed.

I, Voluntary Intoxication Instruction

{9. Defendant first argues that the court erred in denying his request for a voluntary

intoxication instruction. He maintains that there was sufficient evidence to show that alcohol

impairment prevented him from having the requisite mental state to commit the crimes for which

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he was convicted. Defendant points to evidence he believes supports his position, including: his

ex-girlfriend’s testimony that he had consumed two black cherry Mike’s Harder Lemonades and

some portion of a third; her statement that he stumbled and slurred his words “a little bit”; and

photographs of several alcoholic beverage containers in his home. Defendant also cites his exgirlfriend’s testimony that their argument concerned his drinking: the responding officer’s belief

that he was minorly to moderately intoxicated; and his ex-girlfriend’s testimony that he swung and

missed when he tried to hit two strangers on the street and that he didn’t connect because he was

“pretty drunk.” Defendant maintains that, in denying his request, the trial court inappropriately

weighed the evidence and resolved conflicts in the State’s favor.

710. We reject these arguments. There is no dispute that “[i]ntoxication may affect a

person’s ability to form the mental state requisite for conviction of certain crimes” and “[w]hen

specific intent is an element of a crime, evidence of either voluntary or voluntary intoxication

may be introduced to show that the defendant could not have formed the necessary intent.” State

v. Kinney, 171 Vt. 239, 243, 762 A.2d 833, 837 (2000) (quotation omitted). “Where there is

evidence of intoxication such as to negate the requisite criminal intent, the court should normally

instruct the jury that it may consider the intoxication evidence as bearing on intent.” Id. (citing

cases). “Of course, if the evidentiary support is absent, no such instruction is warranted.” Id.

(citing cases).

411. Defendant incorrectly asserts that even slight evidence of intoxication warrants an

instruction. We have made clear that “[e]vidence of alcohol or drug consumption, even in large

quantities” is not in itself sufficient to warrant an instruction. Id. There must be a nexus between

such evidence and the effect it has on a defendant’s mental state. “[I]ntoxication is not a defense

unless it reaches the point where defendant fails to achieve the state of mental responsibility

required by the charge.” Id. (quotation omitted).

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412. In Kinney, we found the evidence sufficient to warrant a jury instruction on

voluntary intoxication, although we found the question “relatively close.” Id. at 244, 762 A.2d at

838. The defendant there was convicted of kidnapping, aggravated sexual assault, and lewd and

lascivious behavior. Evidence was presented at trial to show that the defendant “consumed at least

twelve beers during the course of the evening”; he also used cocaine and smoked marijuana. Id.

at 241, 762 A.2d at 836. The defendant’s friend “testified that [the] defendant appeared

intoxicated” and the defendant acknowledged at trial “that his faculties would have been fairly

clouded given the amount of coke, alcohol and pot [he] had consumed over the course of the

evening.” Id. (brackets omitted), We emphasized that the consumption of intoxicants alone did

not suffice but concluded that all of this evidence together warranted a voluntary-intoxication

instruction. Id. at 244, 762 A.2d at 838.

713. We engaged in a similar analysis in State v. MacFarland. 2021 VT 87, 216 Vt. 126,

275 A3d 110, In that case, the defendant was convicted of unlawful trespass and resisting arrest.

The evidence showed that the defendant “consumed nearly two liters of wine in less than an hour”;

she “testified that she blacked out in the bar” where the charged acts occurred; she “did not form

coherent responses to questions and directions put to her” at the time of the charged acts; “a

preliminary breath test... indicated the presence of alcohol,” and a police officer at the scene

testified that the defendant's “yelling, her erratic behavior, the screaming. [her] general disorderly

behavior [which included an] inability to follow directions, [and] not listening to directions” were

all indicative of [her] intoxication.” Id. 25. We considered this evidence sufficient to show “that

defendant’s alcohol consumption may have been a significant factor in her conduct on the evening

in question and that a court might conclude this evidence supported a diminished capacity

defense.” Id.

414. The facts in these cases are distinguishable from the evidence presented here. As

set forth above, in Kinney, there was evidence that the defendant consumed a very large quantity

a6

of alcohol and other drugs over the course of an evening. In MacFarland, there was evidence that

the defendant consumed a large quantity of alcohol in a short amount of time. In both cases, there

was at least some evidence that the alcohol had some impact on the defendants’ mental state. That

evidence was missing here.

4/15. As the trial court explained, there was no evidence here regarding the size of the

containers of the beverages that defendant had consumed, the timeframe in which they were

consumed, or their alcohol concentration, factors that defendant acknowledges are relevant here.

See State v. Cameron, 514 A.2d 1302, 1309 (N.J. 1986) (stating that relevant factors that may

warrant an instruction include “the quantity of the intoxicant consumed” and “the period of time

involved”).

416. The evidence did not establish a nexus between alcohol consumption and an effect

on defendant’s ability to achieve the state of mental responsibility required by the charges. The

responding police officer observed “minor to moderate” signs of intoxication, describing them as

minor because defendant “was speaking fine,” “walking fine,” “very alert to what was going on,”

responsive to pain, and he had been able to make the choice to go to the emergency room. While

defendant’s ex-girlfriend testified that defendant was “pretty drunk” and “acting intoxicated,” we

agree with the trial court that there was scant support in the record for those conclusory assertions.

In so concluding, we are not weighing the evidence, as defendant asserts, but rather considering

the facts upon which the ex-girlfriend’s opinion was based. See V.R.E. 701 (stating in relevant

part that if “witness is not testifying as an expert, the witness’ testimony in the form of opinions

or inferences is limited to those opinions or inferences which are... rationally based on the

perception of the witness”). The ex-girlfriend testified that defendant missed when swinging at

the two other people who were allegedly on the street because he was “pretty drunk.” When

specifically asked about defendant's physical manifestations of intoxication, the ex-girlfriend

described defendant as “stumbling a little bit” and “slurring his words a little bit.”

a7

417. There was no evidence introduced to suggest that alcohol had impaired defendant’s

mental status. The only evidence regarding defendant’s mental status as it related to his alcohol

consumption was the responding officer’s observations at the hospital, which suggested that

defendant was in control of his mental faculties. As the trial court explained, moreover, there was

significant video evidence of defendant’s conduct at the time of the assault that did not support a

finding that defendant was so impaired by alcohol that he failed to achieve the state of mental

responsibility required by the charges. We agree with the trial court that the evidence of

intoxication was insufficient to call into question whether defendant was capable of forming the

required intent or whether he actually formed the required intent. Defendant remained free to

argue that the State failed to prove beyond a reasonable doubt that he formed the needed intent.

See Kinney, 171 Vt. at 243, 762 A.2d at 838 (emphasizing, in considering argument that instruction

was warranted, that “jury was [not] told that voluntary intoxication was irrelevant to whether

defendant committed the crimes,” jury was provided “full and fair explanation of the intent

elements of the crimes” without objection, and defendant “was free to argue to the jury that the

State failed to prove that defendant had the requisite intent in light of the intoxication evidence’).

4/18. Defendant offers no persuasive argument to undermine the analysis above. As

noted, we reject the argument that the trial court resolved conflicting testimony against defendant

in reaching its conclusion or weighed the evidence in the light most favorable to the State. Our

law does not require a voluntary-intoxication instruction “as long as the evidence supports a

reasonable conclusion that the defendant was impaired, even if slight,” as defendant asserts.

419. The court did not shift the burden of proof to defendant, assuming arguendo that

this argument was raised below. The court considered the evidence presented at trial in reaching

its conclusion, the same evidence identified by defendant in this appeal. Because the evidence did

not support an instruction, the court did not err in denying defendant’s request nor did its decision

as

deprive him of his right to a fair trial.! See State v. Duford, 163 Vt. 630, 631, 660 A.2d 736, 737

(1995) (mem.) (holding that no instruction required where evidence insufficient to establish

defendant’s diminished capacity); State v. Day, 149 Vt. 165, 167, 540 A.2d 1042, 1043 (1987)

(explaining that only such instructions should be given as arise from and can be based upon the

evidence). Defendant’s first claim of error is without merit.

II. Obstruction of Justice

420. We thus turn to defendant’s motion for a judgment of acquittal on the obstructionof-justice charge. Defendant was convicted of violating 13 V.S.A. § 3015 by “corruptly or by

threats or force or by any threatening letter or communication, obstruct[ing] or imped|ing}, or

endeavor[ing] to obstruct or impede the due administration of justice.” The trial court concluded

that, “taking the evidence in the light most favorable to the State and excluding modifying

evidence, the State . . . introduced evidence fairly and reasonably tending to show the defendant’s

guilt beyond a reasonable doubt.” Kinney, 171 Vt. at 245, 762 A.2d at 839 (citation omitted).

921. The trial court cited the following evidence in reaching its conclusion. On the mght

in question, the neighbor heard an argument occurring outside her apartment and looked outside

to investigate the source. From her second-floor balcony, the neighbor observed defendant and

his ex-girlfriend arguing in a parking lot. After several minutes, the neighbor called the police.

At some point before the police arrived, the neighbor left her apartment and walked down to the

intersection where the argument was occurring. The parties continued to argue and the neighbor

1 To the extent that defendant argues that the court’s denial of his request violated his due

process rights, he fails to show that he raised this argument below. We therefore do not address

it. See State v. Sole, 2009 VT 24, 913, 185 Vt. 504, 974 A.2d 587 (“Arguments that are neither

litigated nor decided below will not be addressed for the first time on appeal.” (quotation omitted));

see also V.R.A.P. 28(a)(4) (stating that appellant must explain what issues are and how they were

preserved, with citations to authorities, statutes, and parts of record relied upon).

As part of his brief, defendant has also provided a citation to the trial transcript where a

police officer testified that, during a search of defendant’s apartment, he found beer bottles in the

sink, There was no testimony to show whether this alcohol was consumed, when, or by whom,

and defendant fails to show that he raised this assertion to support his instruction request below.

8

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observed defendant shove his ex-girlfriend. The neighbor told defendant to take his hands off the

neighbor and that the police were on the way. She was using her phone to record what she was

seeing. The ex-girlfriend remarked that the neighbor appeared to be recording what was

happening. Defendant then began to swear at the neighbor, charged at her, said he would kill her,

asked where she lived, and assaulted her. Taking this evidence in the light most favorable to the

State, the court found that the jury could reasonably conclude that defendant assaulted the neighbor

because she was attempting to witness and record what she was seeing to provide that information

to police.

422. The court rejected defendant’s suggestion that there must be an ongoing

investigation at the time of the alleged obstruction. It found no such requirement in the language

of § 3015 or in the case law. The court explained that defendant assaulted a person who appeared

to be videorecording his conduct after that person told defendant that the police were on their way

and the nexus between defendant’s acts and a prospective matter to be heard was sufficient to

support a conviction. For the same reason, the court also rejected defendant’s argument that there

was no connection made between the neighbor and a law enforcement investigation. It reiterated

that defendant acted immediately against a person who appeared to be videorecording his conduct

after that person told him that the police were on the way. The neighbor saw the argument and

saw defendant shove his ex-girlfriend; defendant’s earlier assault against the ex-girlfriend had

already been captured on surveillance video. While the neighbor might have not specifically told

defendant who called the police, the court found that defendant would likely have understood that

it was the neighbor who called police when she approached him and the ex-girliriend and said

police were on their way. No one else was present. The neighbor’s knowledge that the police had

been called made it likely that she was the caller and the jury could reasonably draw that inference

from the available evidence.

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423. The court also rejected defendant's assertion that there was no evidence tending to

show that he knew his actions were likely to affect a future judicial proceeding. Given the evidence

recited above, it found that the jury could reasonably infer that defendant had “knowledge that his

actions [were] likely to affect a judicial proceeding and that his endeavor [had] the natural and

probable effect of interfering with that proceeding.” State v. Fucci, 2015 VT 39, fff 11, 13, 198

Vt. 482, 117 A.3d 419. Put another way, the court explained, defendant’s conduct, if successful,

“sould reasonably and foreseeably have obstructed the due administration of justice.” Id. 412.

The court thus denied the motion for judgment of acquittal.

24. Defendant argues on appeal that the court erred in ascertaining the elements of 13

V.S.A. § 3015. According to defendant, the “due administration of justice” language in that statute

encompasses only conduct that is connected to the proper functioning and integrity of courts and

judicial proceedings and it does not include conduct that occurs before the involvement of law

enforcement, such as with an investigation. He argues that no investigation had begun here at the

time of the alleged assault.

q 25. Assuming a motion for a judgment of acquittal is the appropriate vehicle for this

type of challenge, we reject defendant’s argument because it is at odds with our case law and the

plain language of § 3015. We made clear in State v. O'Neill, 165 Vt. 270, 271, 682 A.2d 943, 943

(1996), that the existence of a pending judicial proceeding is not required to prove obstruction of

justice. The U.S. Supreme Court has recently made this clear as well, holding that “that an offense

‘relates to obstruction of justice’ even if the offense does not require that an investigation or

proceeding be pending.” Pugin v. Garland, 599 U.S. 600, 604 (2023). We find this authority

ersuasive and reject defendant’s assertion that obstruction of justice requires a endin:

P J q p £

2 Defendant fails to show that he preserved his argument that applying 13 V.S.A. § 3015

to pre-investigative conduct would render the statute void for vagueness. See V.R.A.P. 28(a)(4)

(stating that appellant must explain how its arguments were preserved below, with citations to

authorities, statutes, and parts of record relied upon). We therefore do not address this argument.

See Sole, 2009 VT 24, ¥ 13.

10

aii

investigation. We further reject his assertion the State was required, and failed, to prove that his

conduct “have a connection with a future, prospective—not speculative—judicial proceeding.”

26. In O’Neill, the defendants were charged under the “omnibus clause” of 13 V.S.A.

§ 3015 with corruptly endeavoring to obstruct or impede the due administration of justice. Relying

on the interpretation of a federal statute similar to Vermont's law, the defendants argued that “the

existence of a pending judicial proceeding is an element of the crime” of obstruction of justice

under 13 V.S.A. § 3015. We rejected that argument.

4127. In reaching our conclusion, we looked at the federal statute on which the Vermont

law was based. We noted that in an 1893 decision, the U.S. Supreme Court had interpreted the

federal law at issue to require “knowledge or notice or information of the pendency of proceedings

in the United States court, or the progress of the administration of justice therein.” Id. at 274, 682

A.2d at 945 (quoting Pettibone v. United States, 148 U.S. 197, 205 (1893)). We found this

interpretation “arguably reasonable in light of the express language of the [federal] statute, which

referred only to the obstruction of the due administration of justice within the courts of the United

States.” Id. We noted that, notwithstanding “sumerous amendments to the federal statute,

including the deletion from the omnibus clause of any reference to courts or court proceedings, a

majority of federal courts [had] persisted in holding that a violation cannot occur absent a pending

judicial proceeding.” Id.

428. We recognized in O’Neill that “common sense dictates that present conduct can

obstruct the administration of justice in future proceedings.” Id. at 275, 682 A.2d at 946. Looking

at the plain language of the Vermont law, we concluded that it did not require a “pending

proceeding” as the defendants argued. We determined that the “[d]efendants’ conduct, which

included advocating the making of false statements and destroying material evidence,” fell within

the language of the statute. Id. We emphasized that the law made “no reference to a ‘pending

proceeding requirement, and such a requirement [was] not necessary to reasonably limit the law

11

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to a proper scope.” Id. at 275-76, 682 A.2d at 946. To the contrary, we explained, “such a

requirement would make the statute wholly ineffective where judicial proceedings [had] not been

initiated.” Id. at 276, 682 A.2d at 946.

429. We also emphasized the different language involved in the Vermont law as

compared to the federal law, concluding that § 3015 “was intended to apply to a broader range of

conduct than the federal statute,” encompassing “conduct that obstruct[ed] the administration of

justice in matters ‘already heard, presently being heard, or to be heard before any court of the

state.” Id. at 275, 682 A.2d at 946-47 (quoting 13 V.S.A. § 3015}. We noted that the federal

scheme also specifically targeted different types of criminal behavior in different statutes “whereas

the Vermont scheme consist[ed] of one broadly written statutory section intended to cover all of”

the areas covered by the federal scheme, including obstructing a criminal investigation and

tampering with a witness. Id. at 277, 682 A.2d at 947. For all of these reasons, we rejected the

argument that “the existence of a pending judicial proceeding is an element of the crime” of

obstruction of justice. Id. at 271, 682 A.2d at 943.

430. The U.S. Supreme Court has also recently rejected the argument that obstruction of

justice requires a pending investigation or proceeding. See Pugin v. Garland, 599 U.S. 600, 602

(2023) (holding “that an offense may ‘relate to obstruction of justice’ . . . even if the offense does

not require that an investigation or proceeding be pending”). The Court found its conclusion

supported by “[d]ictionary definitions, federal laws, state laws, and the Model Penal Code.” Id. at

604. It looked to Merriam-Webster’s Dictionary of Law as an example, which defined

“obstruction of justice” to cover “ ‘the crime or act of willfully interfering with the process of

justice and law,’ including ‘by influencing, threatening, harming, or impeding a witness, potential

witness, juror, or judicial or legal officer or by furnishing false information in or otherwise

impeding an investigation or legal process.” * Id. (quoting Merriam-Webster’s Dictionary of Law

337 (1996}). It cited additional dictionary definitions tn a similar vein. See, e.g., B. Garner, A

12

a13

Dictionary of Modern Legal Usage 611 (2d ed. 1995) (stating that the offense “captures every

willful act of corruption, intimidation, or force that tends somehow to impair the machinery of the

civil or criminal law”); Black’s Law Dictionary 1077 (6" ed. 1990) (referencing “obstructing the

administration of justice in any way”). “Notably missing from those dictionary definitions,” the

Court explained, was “a requirement that an investigation or proceeding be pending.” Pugin, 599

U.S. at 604. The dictionary definitions “demonstrate[d] that obstruction of justice includes

offenses where an investigation or proceeding is pending, but is not limited to offenses where an

investigation or proceeding is pending.” Id. at 604-05.

431. Making reference to the different federal scheme for obstruction of justice, the

Court recognized that, “[iJn accord with the dictionary definitions,” the federal scheme “ha[d] long

proscribed various obstruction offenses that [did] not require a pending investigation or

proceeding.” Id. at 605. It found this equally true of many state obstruction offenses. Id. (citing,

among other cases, O”Neill, 165 Vt. 270, 682 A.2d 943). The Model Penal Code, as well,

“penerally d[id] not require that an investigation or proceeding be pending” for “obstruction

offenses.” Id. at 606.

432. The Court emphasized that this “extensive body of authority—dictionaries, federal

laws, state laws, and the Model Penal Code—reflect[ed] common sense.” As it made clear:

Individuals can obstruct the process of justice even when an

investigation or proceeding is not pending. For example, a murderer

may threaten to kill a witness if the witness reports information to

the police. Such an act is no less obstructive merely because the

government has yet to catch on and begin an investigation. ... [O]ne

can obstruct the wheels of justice even before the wheels have begun

to move; indeed, obstruction of justice is often most effective when

it prevents an investigation or proceeding from commencing in the

first place.

Id. at 606-07 (quotation omitted).

433. Wereach the same conclusion here. The plain language of § 3015 does not include

the restrictions suggested by defendant, nor does our case law.

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434. Defendant offers no persuasive argument to the contrary. As set forth above, the

law does not require the existence of a police investigation before an individual can be found guilty

of obstruction of justice. The plain language of the law does not exclude “conduct that has taken

place before the involvement of law enforcement,” as defendant asserts. The words “due

administration of justice” cannot be reasonably read to support such an interpretation for the

reasons discussed above. The obstruction-of-justice statute does not require that defendant know

that police would “actually intervene” in response to the neighbor’s call or “begin an investigation

resulting in a future judicial proceeding.” Contrary to defendant’s assertion, moreover, there was

evidence supporting defendant’s knowledge that the neighbor called the police, which is outlined

above. Finally, we consider defendant’s citation of United States v. Aguilar, 515 U.S. 593, 599

(1995), unpersuasive. That case involves the federal obstruction statute that we distinguished in

O°Neill on the basis that, among other things, it involved different statutory language than 13

V.S.A. § 3015. We find no error in the court’s denial of defendant’s motion for judgment of

acquittal on the obstruction-of-justice charge.

Affirmed.

FOR THE COURT:

Associat ce a

14

a15

Vermont Supreme Court

January 8, 2024

VERMONT SUPREME COURT

109 State Street

Montpelier VT 05609-0801

802-828-4774

www. vermontjudiciaty.org

Case No. 22-AP-211

ENTRY ORDER

JANUARY TERM, 2024

State of Vermont v. Walter Taylor, III*

}

}

}

}

APPEALED FROM:

Superior Coutt, Rutland Unit, Criminal

Division

CASE NO. 21-CR-05873

In the above-entitled cause, the Clerk will enter:

Defendant’s motion for reargument is denied because it fails to identify points of law or fact

presented in the briefs upon the original argument which were overlooked or misapprehended by

this Court. See V-R.A.P. 40(6)(1).

BY THE COURT:

Bu || Bab

Paul L. Reiber, Chief Justice

Shel FED).

F—

Harold E. Eaton, Jr. Associate Justice

R. ‘oll, Associate Justice

ZL 4

illiam D. Cohen, Associate Justice

f/

Appendix B ai6

Vermont Supreme Court

Filed: 3/22/2023 11:49 PM

In the Supreme Court of the State of Vermont, Docket No. 22-AP-211

State of Vermont, Appellee

V.

Walter Taylor, III, Appellant

Appeal from the

Superior Court of Vermont — Criminal Division

Rutland County

Docket No. 21-CR-05873

Brief of the Appellant

Matthew Valerio, Esq.

Defender General

On the Brief: Rebecca Turner, Esq.

Clelia Casciola, Appellate Clerk Appellate Defender

Office of the Defender General

6 Baldwin Street, 4th Floor

Montpelier, VT 05633-3301

(802) 828-3168

rebecca.turner@vermont.gov

Attorneys for Appellant

Appendix C ai7

Statement of the Issues

Il. The trial court’s refusal to give the jurors a voluntary intoxication

instruction in support of Mr. Taylor’s diminished capacity defense

was reversible error as the instruction was warranted based on the

evidence of alcohol consumption and impairmMent........eseeresseresereres 12

A. The trial court’s refusal to instruct the jurors on a voluntary intoxication

defense contravened Vermont settled law on diminished capacity, violated

Mr. Taylor’s Sixth Amendment and Due Process rights to a fair trial, and

impermissibly shifted the burden of proof to Mr. Taylor... 12

B. The State cannot show that the court’s failure to provide the jury with

relevant instructions was harmless beyond a reasonable doubt. ...........-+ 19

II. Without evidence that a police investigation had begun, the State

failed to prove that Mr. Taylor endeavored to impede the due

administration of justice as required by the obstruction of justice

SACU. cecccccccccecccessccsssssseccccnsresscessscscsssccesnecensususonceuscssacacesssennceosososaccnccersaeennneees 22

ais

Table of Contents

Statement of the [SSues.......esssssssssseessssseececnsssscnnsesrssnssssesnensenseensevavoncensseanenees 2

Table of Contents ...cccscsccsscscsesscessscesssssnssscessesesssnscssnensnensssnseonensessssasuecenasranesess 3

Table of AUthorities .......cccscccsccssscesscsreessersceeenecrsnnscnsesscessnsssessarsasenssnronsescsecasenss 4

Statement of the Facts ....s.sssccssessescseeseesssesanssnsencesesseeeseserssesessensesansneasenees 6

Standard of Review .vsssscssssssecsessersessessescencesensssscocssenssensnneasssesenacsasasncssoessees 12

AY EUMENE....cssecscssessssecnssesesseseeeecseesscsseorsnssenenenseaseceseasssesesssaceceaseneatnagnecaraseessntes 12

I. The trial court’s refusal to give the jurors a voluntary intoxication

instruction in support of Mr. Taylor’s diminished capacity defense

was reversible error as the instruction was warranted based on the

evidence of alcohol consumption and impairment. ......sseseereerereees 12

A. The trial court’s refusal to instruct the jurors on a voluntary intoxication

defense contravened Vermont settled law on diminished capacity, violated

Mr. Taylor’s Sixth Amendment and Due Process rights to a fair trial, and

impermissibly shifted the burden of proof to Mr. Taylor........:csccceeeeesees 12

B. The State cannot show that the court’s failure to provide the jury with

relevant instructions was harmless beyond a reasonable doubt. ...........+. 19

Il. Without evidence that a police investigation had begun, the State

failed to prove that Mr. Taylor endeavored to impede the due

administration of justice as required by the obstruction of justice

StACULEC. .ccccceccecccccssscccscsscssnscccccersseusneseesecencesescsssssceeenasennessnacosesensseesacescrconsseesneses 22

COnCIUSION ...ccsscesssssesscsesccencescesesscseseceneessesnsencesoeeesasenarensetsnonsesesaasccsocaussoseonenes 28

Certificate of Comp liancee ...........cccssssescesseessentnecsesensnssesensssssnsnsenseenseesenes 29

3

a19

Table of Authorities

Cases

Chapman v. California, 386 13.5. 18 (1967) .acnnccrevsueserensonneseatsaasibedsceasssbaaticoseess 19

Hinkson v. Stevens, 2020 VT 69, 213 Vt. 32, 239 A.3d 212 «0... 24

In re Winship, 397 U.S. 358 (1970) .....sssssecsessreessensenetsesensnsssanesesnesasseneenes 17, 18

Kolender v. Lawson, 461 U.S. 352 (1988) .....csessesseeessessesseseeeeeeeenesenennecenesesees 28

Mathews v. United States, 485 U.S. 58 (1988) .......:cssseessecsseseeseereneeeneteeneeatenees 17

McIntyre v. State, 717 N.E.2d 114 ind. 1999) ............cccessssestsecsnseneeseceeonseonnees 14

People v. Glenn, 599 N.E.2d 1220 (TUL. App. Ct. 1992) ...... cee seeeeeesenseeeneeeenes 14

Seal v. State, 38 N.E.3d 717 (nd. Ct. App. 2015) ......essssecsesesereneteretersesenseanesees 16

State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.B GID. .cecccceccccseecceeeeceeceeeeeers 11

State v. Barard, 2019 VT 65, 211 Vt. 39, 220 A.Bd 759... ceretnrereeeeeeeeees 23

State v. Bourn, 2012 VT 71, 192 Vt. 270, 58 A.3d 236.......ceceeeereeeeeerenseseees 12

State v. Brown, 904 P.2d 985 (Kan. 1995)... ssecseesenerenensenetseesenesssnetennenenes 14

State v. Cameron, 514 A.2d 1802 (N.o. 1986)... eceeeseeeesseseteeeeteteneesenseneseanes 14

State v. Carter, 164 Vt. 545, 674 A.2d 1258 (1996) ... ccccsscccscosesocsevennseccncees 19, 20

State v. Coburn, 2006 VT 31, 179 Vt. 448, 898 A.2d 128.0... eeeeeeee rene eeeens 11

State v. Congress, 2014 VT 129, 198 Vt. 241, 114 A.3d 1128 svsssssnennecssmnesa- 12,16

State v. D’Amico, 136 Vt. 253, 385 A.2d 1082 (1978).......:sesenescnsssoasonsasesenceenans 13

State v. Dennis, 151 Vt. 223, 559 A.2d 670 (1989) ssicsncsonsenssonconensiensensmnernernnncens 21

State v. Fucci, 2015 VT 39, 198 Vt. 482, 117 A.3Bd 419 ........cccscccesesereneeroees 22, 27

State v. Kinney, 171 Vt. 239, 762 A.2d 833 (2000) ......eeeeeeeeeeeeeeeeereeeeees 13, 14, 15

State v. Kuhlman, 2021 VT 52, 215 Vt. 290, 260 A.3d 1115 2... eee 27

State v. MacFarland, 2021 VT 87, 275 A.3d 110 as amended (Nov. 30, 2021)

oc ccccecceusvuusevsesestesssctaceessecesseeseceaeessecensesssceseesseeeesenneceaseseessensesssesneseaeenseeey 12, 20

State v. Martin, 2007 VT 96, 182 Vt. B77, 944 A.2d B67 ....ccccccccscccccersresestereees 12

State v. McHugh, 161 Vt. 574, 635 A.2d 1200 (1998) sescccccssccsssscsseccccenseceeeneeens red

State v. O'Neill, 165 Vt. 270, 682 A.2d 948 (1996) cccsvssssicscsasosscssoes 23, 24, 25, 26

State v. Richland, 2015 VT 126, 200 Vt. 401, 132 A.8d TOD ...ccceceecceeeseeceeeeeeees 23

State v. Rounds, 2011 VT 39, 189 Vt. 447, 22 A.B ATT .occeeeecccceeeeeeeees 17, 18, 19

State v. Sexton, 2006 VT 55, 180 Vt. 34, 904 A.2d 1092 ..eccceceecceseeceeeeceeeeeeeeees 12

State v. Shotton, 142 Vt. 558, 458 A.2d 1105 (1988)... ee eecseceeeeeeeeneeeeeeees 14, 15

State v. Trombley, 174 Vt. 459, 807 A.2d 400 (2002) roreeneensdssstatnsuseonesisncsennnees 21

State v. Warshow, 138 Vt. 22, 410 A.2d 1000 (1979) .......seseeseseseseeetetsteetsesenees 14

State v. Wiley, 2007 VT 13, 181 Vt. 300, 917 A.2d 501... eee tetteeeeneeeneeees PAI

State v. Witham, 2016 VT 51, 202 Vt. 97, 14.7 A.3d lOOBisisccscssssscccvssscesceccevoeve Zo

United States v. Aguilar, 515 U.S. 593 (1998) .....seseesseereeeereneneetetseeseetensenes 22

United States v. Kayser, 488 F.3d 1070 (9th Cir. ZOO aaarase-o--2-.- sneramnsenedti tls 15

United States v. Richardson, 676 F.3d 491 (5th Cir. 2012).....csceseeseeerenerere 24

a20

Statutes

13 V.S.A. § 1024 .eccceecceeeecsseseecseseseseseeeenersnsseessassesenaessnenensasesecanasasssasecseananasgenegss 21

13 V.S.A. § 1042 occceececcssesscessseeseseseseneesesesseeescsesseaenesessesenensnenacasseastereneserecanensgegs 21

13 V.S.A. § 1044 .cecccccscesecesesseseecseseneessseeseeesesessesssassesssenenesesessanenenatanacsastanensnesseess 21

13 V.GS.A. § 8015 .o.eeeeecesseseeseseseseeseeeeessssteesneseaneenensanenaesensensanstessetes 11, 22, 24, 26

13 V.S.A. § 608 wocccseceecesesssesessesseeseeesenscecsesersseesseasseneceeesareneasasassesssusececasnannsnans 21

Rules

V.R.Cx.P. BQcccccccccesscesscccssseceeseecseeeesecesseeesseeenseeeseeeeesieessssesseassressaeenseesseeeseneaessges 19

Other Authorities

Due Administration of Justice, BLACK’S LAW DICTIONARY (2022).......... 24

Transcript of Senate Judiciary Committee, March 28, 1978, H. 258............. 25

5

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Statement of the Facts

Walter Taylor, III appeals his conviction and sentence for aggravated

assault, attempt domestic assault, assault and robbery, and obstruction of

justice, following a two-day jury trial in the Criminal Division, Rutland Unit,

the Honorable David R. Fenster presiding. The jury found Mr. Taylor not

guilty of interference with access to emergency services. 9/21/22-TR-227. Mr.

Taylor filed a motion for a new trial, which the lower court denied. AV-1-102.

The trial court imposed an aggregate sentence of eight to twenty-two years

imprisonment after a contested sentencing hearing. 7/27/2022-TR-139.

The events that led to this appeal took place on the night between July

16th and 17th, 2021. The State brought charges against Mr. Taylor for

allegedly assaulting and robbing Ms. Megan Brogren and for committing

domestic assault against Ms. Crystal Barney. The evening of July 16th, 2021,

Mr. Taylor and Ms. Barney, his ex-girlfriend and mother of his two children,

had an argument. They had spent the evening together at Mr. Taylor’s

apartment in Rutland. They began to argue when Ms. Barney complained to

My. Taylor about his drinking. Mr. Taylor “was having a couple of beers and

playing video games.” 9/21/2021-TR-14. Ms. Barney was fed up with his

drinking and decided to get rid of the alcohol that Mr. Taylor was drinking by

dumping it out. It was at that point that the two started fighting. Id.

Mr. Taylor and Ms. Barney left his apartment and went to the parking

lot in front of the apartment complex on River Street, where they continued

to argue. Id. at 16. Their argument mainly focused on his excessive drinking

habits. The argument escalated when Ms. Barney, who at the time was seven

months pregnant with Mr. Taylor’s child, told Mr. Taylor that “[she] wished

he wasn’t the father and that [she] should run back to Burlington and just

use drugs and hopefully would kill the baby.” Id. at 17. Ms. Barney claimed

that at that point “he got mad and swung at me.” Ms. Barney told the jurors

that “he wasn’t trying to hurt me in any way. I do know that.” Id.

During cross-examination, Ms. Barney admitted that while they were

arguing in the parking lot, other people were present. Ms. Barney stated that

two men were walking on River Street and started “screaming at Walter.” Id.

a22

at 20. At that point, Mr. Taylor got into an argument with the men. Jd. at 21.

Meanwhile, Ms. Brogren, who was a neighbor, was standing on the other side

of the street. Ms. Brogren screamed that she would call the police again. Id.

One of the other two men charged at Ms. Brogren and started hitting her. Jd.

at 22. Ms. Barney left the scene and returned to the parking lot in front of

Mr. Taylor’s apartment, where Mr. Taylor had already gone. Jd. Ms. Barney

told the jurors that she never saw Mr. Taylor assaulting Ms. Brogren. AV-4,

25.

The State presented a video recording that captured the parking lot

and part of the intersection where the alleged attack took place that night.

Though the video did not capture the entirety of the events, the State argued

that Mr. Taylor was the one who attacked Ms. Brogren. 9/20/21-TR-61, 111-

112; 9/21/21-TR-137-142. See State’s Ex. 33 (partial surveillance video).

Ms. Brogren testified that the night she was attacked she saw two

individuals arguing in the parking lot across from her apartment. 9/20/2021-

TR-36-37. While she was still in her apartment, she called the police to notify

them that there was an argument happening outside. Id. She then left her

apartment and decided to “observe what was going on” outside because she

believed “it was taking a long time for law enforcement to respond.” Id. at 40.

On direct examination Ms. Brogren was asked whether could see the people

in the parking lot clearly, she answered that she could see them because of

the streetlight, but she was not wearing her contact lenses or her glasses. Id.

Ms. Brogren described approaching the two individuals while they were

arguing and she began recording them with her phone. Jd. at 41-42. Ms.

Brogren testified that Ms. Barney saw her and “remarked that [Ms. Barney]

could see that ... I had my phone and that I was recording what was

occurring.” Id. at 73.

Afterwards, Ms. Brogren ran towards the opposite side of where she

was initially standing and testified that Mr. Taylor followed and attacked

her—all of which was not visible in the surveillance recording as the attack

took place behind a tree. Id. at 76. Right before the attack, in the dark and

without wearing corrective lenses, Ms. Brogren claimed that she could see

a23

Mr. Taylor. Id. at 75-76. Ms. Brogren stated that after the attack, while she

was laying on the ground, she saw someone take her phone, which was

nearby. Id. at 80. The phone in question, however, was never found. The

police searched Mr. Taylor’s apartment, his car, and the area surrounding

where the attack took place. 9/20/21-TR-174-75. Though law enforcement

used a Find My iPhone app and determined its last known location, it was

never retrieved. Id. at 176-77; 185.

On cross-examination, Ms. Brogren confirmed that in addition to it

being dark outside and not wearing her corrective lens, she had also

consumed alcohol earlier that evening. 9/20/2021-TR-94-95. She testified that

she was the only one on the street that night, besides Mr. Taylor and Ms.

Barney, but she admitted that she also heard Ms. Barney initially refer to

someone else as a man. She thought Ms. Barney had mistaken Ms. Brogren

to be a man. Id. at 96. When the defense asked Ms. Brogren whether she

recalled the footwear that her assailant was wearing, she answered that “at

one point, he was wearing just basic flip-flops—sandals,” but she believed

that “when he went down to pick up [the] phone, he was wearing sneakers.”

Td. at 100. Under Ms. Brogren’s recollection of the assault, she believed the

assailant switched his footwear between assault and the robbery of the

phone. However, as the defense pointed out in closing argument, the footwear

switch theory was not supported by the video evidence and instead was

evidence that another man, not Mr. Taylor, had attacked her. 09/21/2021-TR-

156-57.

Another witness for the State claimed to have witnessed the events

from the porch of his house. He testified that he saw a man chasing and

assaulting a woman in the area around the intersection of Meadow and River

Street. 9/21/2021-TR-108-09. However, during cross-examination, the

neighbor admitted that he did not see anything prior to those events, and

before stepping out the house, he only heard “hollering and screaming.” Id. at

109-110. The witness did not provide any details or identifying facts or

characteristics of the man. Jd. at 108-110.

Following the attack, an officer from the Rutland police unit arrived at

a24

the scene and found Ms. Brogren on ground on the side of River Street. The

officer called an ambulance, which transported Ms. Brogren to the Rutland

Regional Medical Center. Id. at 66. A couple of weeks after the incident, Ms.

Brogren participated in a photo line-up and identified Mr. Taylor as her

attacker. At trial, when the defense asked Ms. Brogren whether she was

given the name of the person arrested in connection with the assault prior to

the photo line-up, Ms. Brogren confirmed that she was given Mr. Taylor’s full

name. She also admitted that after the incident and before the photo line-up,

she searched Mr. Taylor’s name and saw his photos on the internet. Id. at 98.

The evidence the State presented at trial supported a conclusion that

the night of incident Ms. Brogren was attacked and suffered serious bodily

injuries. The State argued that the surveillance video—which did not show

the actual assault—and Ms. Brogren’s and the neighbor’s testimonies

supported a conclusion that Mr. Taylor committed the assault. According to

the State, there were no other individuals on the street that night besides

Ms. Brogren, Ms. Barney, and Mr. Taylor, and Ms. Brogren and had no

difficulty seeing who attacked her. 09/21/2021-TR-141. The defense argued

that this evidence was not sufficient to prove beyond a reasonable doubt that

Mr. Taylor had committed the alleged acts. Id. at 153-59.

A. Voluntary intoxication negating the charged specific intent crimes.

Based on the evidence of alcohol consumption and impairment

presented at trial, the defense requested a voluntary intoxication instruction,

which the trial court ultimately denied after determining that Mr. Taylor had

failed to provide sufficient evidence. 9/21/2021-TR-121-22.

The evidence before the jury showed that Mr. Taylor was impaired by

alcohol on the night in question. Photos of Mr. Taylor's apartment show at

least three large cans of Mike’s Harder Black Cherry alcoholic drinks, and

Mr. Barney confirmed that those were the drinks Mr. Taylor had the night of

July 16th. 9/21/2021-TR-49-50; AV-4-280-281. During cross-examination, Ms.

Barney told the jurors that Mr. Taylor was acting intoxicated that night. To

the defense counsel’s questions, Ms. Barney answered:

a25

Q: And he had been drinking that evening, correct?

A: Yes.

\

Q: And is it true that he was drinking Mike’s HARDER

Lemonade?

A: Yes, I believe it was Black Cherry.

Q: And is it true that he had more than a couple of

those?

A: Yes.

Q: Okay. And I believe that you had testified that he

was acting intoxicated, correct?

A: Yes.

Q: Stumbling a little bit?

A: Yup.

Q: Slurring his words a little bit, correct?

A: Yup.

9/21/2021-TR-48 (emphasis added).

Ms. Barney described Mr. Taylor’s encounter with the two men outside

the apartment that evening as having been impacted by his drinking. She

described him “swinging at two other people. He didn’t connect...because he

was pretty—pretty drunk. So he swung at one, missed, swung at the other

and then fell[.]” Id. at 20.

Additional evidence of Mr. Taylor’s alcohol impairment was provided by

the State’s law enforcement witness, Officer Klementowski. The officer

encountered Mr. Taylor at the hospital later that night. Id. at 69. She talked

with him and confirmed that she observed signs of intoxication. Id. When the

prosecutor asked how intoxicated was Mr. Taylor, she responded, “Minor to

moderate.” Id. Meanwhile, Ryan Ashe, a detective at the Rutland Police

Department at the time of the incident, confirmed during his testimony to the

10

a26

jurors that when he executed the search warrant of Mr. Taylor’s home, he

found “a few empty beer bottles in the sink in the kitchen” and “some Mtke’s

Harder cans.” 9/20/2021-TR-184.

When the defense asked the court to provide a voluntary intoxication

instruction to the jury, the court denied the instruction. The court found that

Mr. Taylor had consumed “at most two Mike’s Harder Lemonade cans[.]” Id.

at 129. The court noted that although the testimony “about the defendant’s

physical manifestation from Officer Klementowski were that she could tell

that the defendant was under the influence .. . it was minor.” Jd. at 129. The

court discounted Ms. Barney’s testimony on alcohol impairment finding that

the only evidence amounted to Mr. Taylor “stumbling and slurring a little

bit[.]” Jd. The court found this testimony conflicted with Officer

Klementowski’s testimony, which described Mr. Taylor as “speaking clearly,

that he was walking fine, that he was very alert, alert to pain.” Jd. at 130.

Weighing this evidence, the court concluded that there was insufficient

evidence to warrant a voluntary intoxication instruction. Id. at 132.

B. Obstruction of Justice

After the State rested, the defense moved for a Rule 29 motion to

dismiss the obstruction of justice and interference with emergency services

charges. Mr. Taylor was found not guilty on the interference with emergency

services count. 9/21/22-TR-227. At trial, the State confirmed that the

obstruction of justice charge was based on the moment that the aggravated

assault occurred. The State argued to the jurors in its closing argument that

My. Taylor assaulted Ms. Brogren because he intended to deprive her of her

phone, “to stop her from contacting the police, to stop her from reporting

evidence, and ultimately to deprive her permanently of her phone.” Id. at

143. Mr. Taylor’s counsel argued that the court should dismiss the count

because there was no evidence of impeding the due administration of justice

The police, who had been called because of an argument in a parking lot, had

not yet arrived and had not yet started an investigation. 9/21/21-TR-114. The

court reserved its ruling on the motion until after the jury returned a verdict.

After a guilty verdict was reached on this count, the Court ruled against Mr.

11

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Taylor’s motion. AV-1, 99-101.

In denying the motion for judgment of acquittal, the trial court stated

that the obstruction of justice statute reaches conduct “that obstructs the

administration of justice in matters to be heard,” and does not require an

ongoing investigation. Id. at 100. The trial court reasoned that the nexus

between Mr. Taylor’s conduct and the prospective matter was “sufficient to

support a conviction.” Id. A timely notice of appeal was filed. AV-1-35.

Standard of Review

Whether the court erred when it failed to give a voluntary intoxication

instruction to the jury raises a question of law, which is reviewed de novo.

State v. Coburn, 2006 VT 31, J 14, 179 Vt. 448, 455, 898 A.2d 128, 133.

Whether “due administration of justice” under the omnibus clause of

13 V.S.A. § 3015 includes circumstances before the court, prosecutors, or

police become aware of a crime occurring or before a law enforcement

investigation has even begun raises a question of statutory interpretation,

which this Court reviews de novo. State v. Amsden, 2013 VT 51, 4 31, 194 Vt.

128, 143, 75 A.3d 612, 623. A sufficiency of the evidence challenge is reviewed

by looking at the evidence “in the hight most favorable to the State and

excluding modifying evidence, fairly and reasonably supports a finding

beyond a reasonable doubt.” State v. Martin, 2007 VT 96, § 8, 182 Vt. 377,

384, 944 A.2d 867, 873.

Argument

I. The trial court’s refusal to give the jurors a voluntary

intoxication instruction in support of Mr. Taylor’s diminished

capacity defense was reversible error as the instruction was

warranted based on the evidence of alcohol consumption and

impairment.

A. The trial court’s refusal to instruct the jurors on a voluntary

intoxication defense contravened Vermont settled law on diminished

capacity, violated Mr. Taylor’s Sixth Amendment and Due Process

rights to a fair trial, and impermissibly shifted the burden of proof to

12

a28

Mr. Taylor.

“As a general proposition a defendant 1s entitled to an instruction as to

any recognized defense for which there exists evidence sufficient for a

reasonable jury to find in his favor.” Mathews v. United Slates, 485 U.S. 58,

63 (1988) (citing Stevenson v. United States, 162 U.S. 313 (1896)) (noting a

parallel rule exists for lesser included offenses). Mr. Taylor was entitled to a

jury instruction on a diminished capacity defense because at trial there was

evidence of the fact that alcohol impairment prevented Mr. Taylor from

acquiring the requisite mental state to commit the crimes of aggravated

assault, domestic assault, assault and robbery, and obstruction of justice.

Thus, the court erred in denying this instruction.

Vermont law recognizes voluntary intoxication as a basis fora

diminished capacity defense. State v. MacFarland, 2021 VT 87, § 24, -- Vt. --,

275 A.3d 110, 118 as amended (Nov. 30, 2021). Voluntary intoxication may

preclude a defendant from forming the necessary intent in specific intent

crimes. State v. Congress, 2014 VT 129, ¥| 32. The Court has recognized that

“(t]he common law allows the defense of diminished capacity—due either to

intoxication or mental defect—to specific intent crimes.” State v. Sexton, 2006

VT 55, J 17, 180 Vt. 34, 42, 904 A.2d 1092, 1099, overruled on other grounds

by State v. Congress, 2014 VT 129, 4 17, 198 Vt. 241, 114 A.3d 1128. Accord

State v. Bourn, 2012 VT 71, 4 8, 192 Vt. 270, 274, 58 A.3d 236, 240 (reversing

ageravated assault conviction to allow the defendant to provide evidence for a

voluntary intoxication instruction given it was a specific intent crime).

Here, the trial court did not disagree that Mr. Taylor could request a

voluntary intoxication instruction, but it denied the request because it found

the evidence of impairment and intoxication conflicting and insufficient. This

conclusion contravened Vermont law on diminished capacity, impermissibly

shifted the burden of proof to the defense, and infringed upon Mr. Taylor’s

right to a jury trial. This Court has clearly held that when there is evidence

of intoxication, “it is up for the jury to assess the evidence of intoxication and

determine whether a defendant’s ‘mental capacity was so diminished to

prevent him from forming the requisite felonious intent.” State v. Kinney,

18

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