State v. George Tarbell

ENTRY ORDER

2021 VT 68

SUPREME COURT DOCKET NO. 2021-163

AUGUST TERM, 2021

State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Windham Unit,
} Criminal Division
}
George Tarbell } DOCKET NO. 21-CR-00257

Trial Judge: John R. Treadwell

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

¶ 1. Defendant George Tarbell is charged with seven counts of first-degree aggravated
domestic assault under 13 V.S.A. § 1043(a)(1)-(3), cocaine possession under 18 V.S.A.
§ 4231(a)(1), assault of a protected professional under 13 V.S.A. § 1028(b)(1), and simple assault
of a protected professional under 13 V.S.A. §§ 1023(a)(1) and 1028(a)(1). Previous felony
convictions expose him to life imprisonment pursuant to 13 V.S.A. § 11. The superior court
ordered defendant held without bail under 13 V.S.A. § 7553 following a weight-of-the-evidence
hearing. Defendant now appeals the court’s denial of his motion to reconsider that decision. We
affirm.

¶ 2. The State introduced evidence at the weight-of-the-evidence hearing that defendant
strangled complainant, punched her, knocked out one of her teeth, threatened her with a knife in
his hand, and pushed her down a set of stairs. The State marshalled further evidence that after he
was arrested, defendant pulled a cable from the back seat of a police cruiser to dislodge a radar
device from the dash and strike the driving police officer, and that he attempted to spit at the officer
through the rear-seat divider.

¶ 3. A defendant charged with an offense punishable by life imprisonment may be held
without bail when the evidence of guilt is great. 13 V.S.A. § 7553. “The evidence of guilt is great
if substantial, admissible evidence, taken in the light most favorable to the State and excluding
modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt.”
State v. Book, 2021 VT 31, ¶ 3, __ Vt. __, 253 A.3d 893 (mem.) (quotation omitted). If the court
so concludes, a presumption against release arises and “the burden shifts to the defendant to
persuade the court to exercise its discretion to set bail or conditions of release.” State v. Auclair,
2020 VT 26, ¶ 16, 211 Vt. 651, 229 A.3d 1019 (mem.). The court must exercise its discretion in
determining whether to release the defendant and, in so doing, may consider the factors in 13
V.S.A. § 7554(b). State v. Blow, 2020 VT 106, ¶ 3, __ Vt. __, 251 A.3d 517 (mem.).

¶ 4. In this case, the superior court concluded that the evidence of guilt was great with
respect to two of the aggravated-domestic-assault charges. It then examined several of the § 7554
factors and declined to release defendant. In the latter analysis, the court considered that the weight
of the evidence on one of the charges of aggravated domestic assault was “substantial” and that
defendant’s criminal history includes convictions for failures to appear, violation of an abuse
prevention order, aggravated domestic assault, and aggravated assault. The court also considered
evidence of defendant’s conduct in the police cruiser and evidence that defendant made violent
threats against complainant. The court recognized that defendant has substantial ties to the
community and limited financial resources, but it was ultimately not convinced that defendant
would abide by conditions of release.

¶ 5. Three months later, defendant filed a motion styled “Motion to Modify Conditions
of Release[,] Strike Hold Without Bail[,] and Appoint Custodial Adult.” Defendant briefly
requested that the court allow him to reside with his wife, who would serve as a custodial adult,
impose a twenty-four-hour curfew, and allow access to substance-abuse treatment. The court held
a motion hearing, the events of which are the subject of this appeal.

¶ 6. At the hearing, defense counsel argued that the State’s case had changed because
he had been unable to depose certain witnesses in the case. Counsel then proffered that defendant’s
wife, Ms. Jones, would move from Massachusetts to Vermont, look for a job here, and serve as a
custodian for defendant. Counsel offered to “get Ms. Jones on the phone so we could have her
testify.” The court said, “all right,” and sought the State’s point of view.

¶ 7. The State argued that the defense’s inability to depose certain witnesses at that time
did not constitute changed circumstances and that such deposition testimony would, in any event,
constitute modifying evidence, which is excluded from the weight-of-the-evidence analysis. The
State further argued that, based on the court’s discretionary bail analysis and defense counsel’s
proffer, Ms. Jones would not be able to protect the public from the risk defendant posed.

¶ 8. Defense counsel then acceded to the court’s suggestion that deposition testimony
would constitute modifying evidence but argued that the court should reconsider the § 7554
factors. Counsel proffered that a Rutland clinic was prepared to offer services to defendant for
daily medication and substance-abuse counseling, and further offered to accept a twenty-four-hour
curfew and any check-in requirements the court wished to impose. Counsel did not call Ms. Jones
as a witness or introduce any other evidence, however. The court reiterated that modifying
evidence is excluded from the § 7553 analysis, referenced the bases for its discretionary bail
decision, and denied the motion to reconsider.

¶ 9. On appeal, defendant argues that the court abused its discretion in failing to
consider his proffer of evidence as relevant to the § 7554 factors. He contends that he did not get
his day in court on the motion to reconsider.

¶ 10. Once the superior court finds the elements of § 7553 satisfied, the court enjoys
broad discretion in deciding whether to release a defendant on conditions. State v. Ford, 2015 VT
127, ¶ 10, 200 Vt. 650, 130 A.3d 862 (mem.). As long as the decision is not arbitrary, our review
is “narrow and strictly confined to whether an abuse of discretion has occurred.” State v. Boyer,
2021 VT 19, ¶ 12, __ Vt. __, 252 A.3d 804 (mem.).

¶ 11. Defendant maintains that this case falls under our holding in State v. Memoli, 2008
VT 85, 184 Vt. 564, 956 A.2d 575 (mem.). There, a defendant moved to reconsider his hold-
without-bail order. The court held a hearing and the defendant offered to introduce his wife’s
testimony in support of his argument that he should be released on conditions. The court ruled
that because the defendant would be held without bail under § 7553, “evidence concerning
conditions of release was ‘not relevant.’ ” Id. ¶ 4. We reversed because the court refused to
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consider “any evidence” bearing on the decision to release the defendant on conditions, observing
that even when the evidence of guilt is great, “the court must go on to exercise its discretion in
deciding whether to hold the defendant without bail or to impose conditions of release.” Id.

¶ 12. Here, the court did not refuse to consider defendant’s evidence—defense counsel
did not call his witness or present any other evidence to the court. We reiterate that once the
presumption against release arises, the burden is squarely on the defendant to persuade the court
to release on conditions. See supra, ¶ 3. Although counsel initially offered to call his witness on
the phone—and although the court said, “all right”—after the discussion turned to the inability to
depose witnesses, defendant did not call the witness. After counsel proffered that a Rutland clinic
was willing to offer services to defendant, counsel again did not call any witnesses to so testify or
introduce documentary evidence to that effect. A party seeking a remedy before a court, especially
one who bears the burden of proof, must be clear about what he is asking.

¶ 13. In the hold-without-bail decision, the court considered several § 7554 factors,
including the “substantial” weight of the evidence, defendant’s pronounced criminal history,
evidence of his conduct in the police cruiser, evidence of threats against complainant, and
defendant’s ties to the community and limited financial resources. We cannot conclude that the
court abused its discretion in declining to release defendant or to alter its order in the face of the
evidence presented at the hearing. See Blow, 2020 VT 106, ¶¶ 20-21 (observing that court is not
required to consider every factor in § 7554 and finding no abuse of discretion where court
exercised discretion and considered several factors); State v. Orost, 2017 VT 110, ¶ 11, 206 Vt.
657, 179 A.3d 763 (mem.) (affirming discretionary bail decision where court discussed “multiple
significant factors that were central to its analysis”).

¶ 14. We note in closing that nothing said here should be construed to alter defendant’s
existing rights to seek a review of the hold-without-bail decision in the future, including a motion
based on a proposed set of conditions supported by evidence that was not introduced at the
reconsideration hearing.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Beth Robinson, Associate Justice

William D. Cohen, Associate Justice

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