Summary
The Vermont Supreme Court affirmed Kerri Nicholas’s convictions for domestic assault and cruelty to a child. The court rejected his claim that the jury instructions permitted a non-unanimous verdict on the child-cruelty charge, applying plain-error review because he had not objected at trial. The court also concluded that the alleged trial misconduct did not create an undue risk of prejudice warranting reversal.
Topics
Practice areas
Questions Presented
- Whether the trial court committed plain error by failing to instruct the jury that it had to unanimously agree on which injury or injuries supported the single cruelty-to-a-child charge.
- Whether the cumulative effect of several instances of allegedly improper or prejudicial prosecutorial conduct required reversal or a new trial.
Holdings
- The omission of a specific unanimity instruction did not constitute plain error. A specific unanimity instruction is not necessarily required when multiple acts are materially indistinguishable or the defense does not distinguish among them; in any event, defendant failed to show the prejudice required for plain-error relief.
- The trial court acted within its discretion in denying a new-trial motion based on cumulative prejudice. The challenged incidents were fleeting, promptly curtailed or addressed by the trial court, and insufficient in combination to amount to a miscarriage of justice.
Key quotations
“This is a very high bar—we find plain error only in rare and extraordinary cases.” (2016 VT 92, ¶ 13)
“The critical inquiry is whether either party has presented evidence that materially distinguishes any of the alleged multiple acts from the others.” (2016 VT 92, ¶ 23)
“In light of the foregoing, we conclude that the trial court was well within its discretion in denying defendant’s motion for a new trial on the basis of the cumulative prejudice from the above instances, and thus we affirm defendant’s convictions.” (2016 VT 92, ¶ 42)
Factual background
The evidence concerned multiple injuries to a young child over several weeks in September and October 2012, including two black eyes, a later single black eye, bruises on the face, forearm, ribs, abdomen, and neck, and petechial bruising. Defendant lived with the child's mother and had access to the child during the relevant period. The defense maintained that the injuries were accidental and that no evidence connected defendant to them; the jury nevertheless convicted defendant of domestic assault relating to the single black eye and cruelty to a child.
Procedural history
The State charged defendant with multiple counts of domestic assault and one count of cruelty to a child. The trial court directed a verdict on one domestic-assault charge, the jury acquitted defendant of the charge involving two black eyes, and convicted him of domestic assault involving a single black eye and cruelty to a child. The Supreme Court affirmed.