Summary
The Vermont Supreme Court affirmed the defendant’s conviction for violating an abuse prevention order by following his former girlfriend. The court rejected challenges concerning the jury instruction defining “following,” sufficiency of the evidence, and exclusion of evidence concerning the victim’s later outburst, holding that any error in excluding the impeachment evidence was harmless beyond a reasonable doubt.
Topics
Practice areas
Questions Presented
- Whether the trial court improperly changed the definition of following between defendant's first and second trials in violation of the law-of-the-case doctrine.
- Whether the jury instruction defining following to include consciously maintaining physical proximity constituted plain error or rendered the order's separate stalking and 100-foot-buffer prohibitions superfluous.
- Whether the evidence was sufficient to support defendant's conviction for following Libbey in violation of the abuse prevention order.
- Whether the trial court improperly excluded Libbey's later angry statements as impeachment evidence and, if so, whether the exclusion was harmless error.
Holdings
- The claim was not preserved because defendant failed to object to the jury instruction. In addition, the law-of-the-case doctrine is a discretionary rule of practice rather than a binding rule of law, and a trial court may depart from it in a proper case.
- The instruction defining following to include consciously maintaining physical proximity did not constitute plain error and did not render the order's separate prohibitions against stalking or entering the 100-foot buffer zone superfluous.
- The evidence was sufficient for a reasonable jury to find that defendant followed Libbey in violation of the abuse prevention order.
- The trial court erred by excluding the statements on the ground that their admission would open the door to evidence of defendant's prior bad acts, because the decision whether to take that strategic risk belonged to defense counsel. Nevertheless, the error was harmless beyond a reasonable doubt.
Key quotations
“In any event, the “law of the case” doctrine is a discretionary rule of practice, not a rule of law, and “in a proper case,” the trial court may depart from the doctrine.” (476)
“A reasonable jury could conclude on the basis of the evidence before it that defendant had violated the abuse prevention order by following Libbey, as the term was defined in the jury instructions.” (477)
“The decision of whether to introduce evidence of the victim’s comments, with the potential consequence of defendant’s prior bad acts being admitted by the State, was a strategic decision for the defense counsel to make, not the court.” (478)
Factual background
An abuse prevention order prohibited defendant from stalking or following Lori Libbey and from coming within 100 feet of her. On the day of the alleged violation, defendant and his girlfriend repeatedly encountered or drove near Libbey, defendant's vehicle appeared behind hers on Route 5, and defendant threw a beer bottle from the vehicle while the vehicles remained in proximity. Defendant's girlfriend also made multiple calls reporting Libbey's location to authorities. The defense characterized the encounters as coincidental and part of routine errands.
Procedural history
Malshuk was charged with second-offense violation of an abuse prevention order under 13 V.S.A. § 1030(b). His first trial ended in a hung jury. At the second trial, the court gave an expanded definition of following, the jury found him guilty, and the trial court denied his motion for acquittal. He appealed, and the Supreme Court of Vermont affirmed.