State v. Kareem Johnson

VERMONT SUPREME COURT Case No. 22-AP-026
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
ENTRY ORDER
FEBRUARY TERM, 2022
State of Vermont v. Kareem Johnson* } APPEALED FROM:
} Superior Court, Chittenden Unit,
Criminal Division
} CASE NO. 21-CR-10108
In the above-entitled cause, the Clerk will enter:
Defendant Kareem Johnson appeals the superior court’s order denying his motions to
amend conditions of release under 13 V.S.A. § 7554. I affirm.
Defendant is charged with one count of second-degree aggravated domestic assault under 13
V.S.A. § 1044(a)(2)(B), and one count of violating conditions of release under 13 V.S.A. § 7559(e).
The charges arise from an incident in which defendant allegedly struck a woman (complainant) on a
street in downtown Burlington on November 25, 2021. At the time of the incident, defendant was
subject to conditions of release, including a twenty-four-hour curfew, in a different docket.
Defendant was arraigned on November 29, 2021. The trial court imposed conditions of
release including Condition 4, requiring release into the custody of a responsible adult, and
Condition 11, the imposition of a twenty-four hour curfew at a court-approved address. Defendant
objected to Condition 4 because he could not produce a responsible adult. The State did not seek
cash bail.
On December 29, 2021, defendant filed a motion to strike Condition 4 and Condition 11, or
in the alternative, approve a twenty-four-hour curfew at his home address. At a hearing on January
7, 2022, the State opposed the motion. It represented that defendant had a history of previous
releases into the community under curfew conditions, had been on arrest warrant status during the
incident, and had previously not answered the door at home to law enforcement seeking to locate
him. Defendant countered that he could not find a responsible adult, he had just spent many weeks
in jail in his forties, and the allegations against him were not serious enough to warrant the
responsible-adult condition. He further explained that he did not want to be around the people with
whom he had been having issues, and that he “just want[ed] to keep his nose to the grindstone.”
The court denied defendant’s motion, pointing to defendant’s pending charges. The court
noted that defendant has pending felony charges in other dockets, including two other second-
degree aggravated domestic assault charges, and a charge of interference with access to emergency
services under 13 V.S.A. § 1031. Defendant notified the court he would file an application for home
detention and the court suggested this was a “good plan.”

On January 16, 2022, defendant filed his home-detention application with the court, and the
court forwarded the application to the Department of Corrections (DOC) to prepare a report. On
January 27, 2022, DOC completed the report indicating that defendant did not meet the
requirements for home detention because zero bail had been imposed, and that defendant’s
proposed residence was “too precarious” because it was only a “short-term solution.” Moreover,
the report found that complainant resided at the proposed residence, defendant’s release conditions
prevented contact with complainant, and given defendant’s recent history, proceedings had been set
in motion that would cause defendant to lose the residence by April 2022. However, the report
noted that the trial court is ultimately responsible for determining defendant’s appropriateness for
home detention.
On February 2, 2022, the court held a hearing on defendant’s request for home detention.
At the beginning of the hearing, defendant requested the court to approve a responsible adult he had
located, if it was not going to approve home detention. The State agreed to proceed on both
requests. The court heard testimony from defendant’s proposed responsible adult and from a DOC
representative regarding its home-detention report. After a recess, the court denied both motions
on the record.
The court denied defendant’s request for home detention because it had not set bail in the
case, and the statute governing home detention—13 V.S.A. § 7554b(b)—applies only when the
court has set bail. The court denied defendant’s responsible adult candidate because the court was
not convinced she could report potential violations of release conditions “in all instances.”
Defendant’s pending charge of interfering with access to emergency services in a different docket
gave the court pause. The court noted that the candidate suffers from several health-related issues
and lives with her twenty-nine-year-old daughter. Given all these factors, combined with
defendant’s criminal history and the severity of other pending charges, the court concluded that she
was not a suitable responsible adult. The court did, however, leave open the possibility for another
candidate should defendant produce one.
On appeal defendant makes three arguments. First, he contends, in effect, that the trial
court’s decision not to strike Condition 4 was an abuse of discretion. Second, he argues that the
court’s denial of his responsible adult candidate was an abuse of discretion because the court could
not appropriately consider whether a responsible adult can “be overpowered.” Third, defendant
further argues that the trial court erred by denying defendant’s home-detention request after it sent
the application to DOC. He maintains that in so doing, the court in effect made a ruling approving
the applicability of the statute, and that the court subsequently failed to engage in the requisite
analysis required by the home-detention statute, 13 V.S.A. § 7554b(b)(1)-(3).
This Court “shall” affirm orders addressing motions to amend or strike conditions of release
under 13 V.S.A. § 7554, if the orders are “supported by the proceedings below.” 13 V.S.A.
§ 7556(b); State v. Pratt, 2017 VT 9, ¶ 20, 204 Vt. 282. Trial courts have broad discretion in setting
release conditions. See State v. Bailey, 2017 VT 18, ¶ 9, 204 Vt. 294. We review the trial court’s
decisions regarding release conditions for an abuse of discretion. State v. Rougeau, 2019 VT 18,
¶ 14, 209 Vt. 535.
To the extent defendant expressly makes the argument on appeal,1 the trial court’s denial of
his motion to strike Condition 4 was not an abuse of discretion. Defendant objected to Condition 4
1 Defendant cites the January 7 order denying his motion to strike this condition as one of
three decisions he is appealing. However, he does not develop this argument in his brief, and briefly
addressed it at oral argument without citing any legal authority to support his position.

for essentially two reasons. First, he argued that Condition 4 was unnecessary given his age, his
desire to avoid the people with whom he had been having trouble, and his apartment where he
could reside if released under a curfew condition. Second, defendant could not, prior to February 2,
2022, produce a potential responsible adult.
The court imposed the condition at arraignment because defendant had “eight failures to
appear, [and] lots of violations of court orders.” At the January 7 hearing, the court considered
defendant’s two other pending second-degree aggravated domestic assault charges, an unlawful
restraint charge, an identity-theft charge, and a charge of interfering with access to emergency
services, which the court found “problematic.” Further, the State opposed striking the responsible-
adult condition in part because defendant had previously been released on a twenty-four-hour
curfew condition, and violated this condition while committing the current offenses. The trial
court’s decision not to strike Condition 4 given this context is therefore “supported by the
proceedings.” Pratt, 2017 VT 9, ¶ 20.
Next, defendant argues that the trial court’s denial of his motion to approve an identified
person as a responsible adult was an abuse of discretion. He cites a recent single-Justice entry order
from this Court for the proposition that trial courts may not elevate the public-safety requirement in
13 V.S.A. § 7554(a)(1), beyond “what any responsible adult or conditions of release can reasonably
accomplish.” State v. Cassinell, No. 21-AP-187, 2021 WL 4101704, *3 (Vt. Sept. 3, 2021) (unpub.
mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo21-187.pdf
[https://perma.cc/9WA9-N473]. He suggests that the court otherwise “found the proposed
[responsible adult] appropriate in all respects.” His argument fails for several reasons.
First, the trial court did not find the proposed responsible adult appropriate in all respects.
As noted above, the court expressed concern that the candidate suffered from significant health
concerns which rendered her potentially unable to report violations of release conditions. The court
heard testimony from the candidate that she is disabled, suffers from COPD, and requires
supplemental oxygen. Though she indicated that she understood her responsibilities, the candidate
also testified that she had a criminal history and admitted to being charged with violating conditions
of release. The court noted defendant’s pending charge in another docket where he allegedly took
the complainant’s cell phone as she attempted to call for emergency services. Furthermore, the
court expressed concern about the candidate’s twenty-nine-year-old daughter who resided at the
apartment, given defendant’s criminal history and pending domestic assault charges against other
women with whom he lived.
Second, this case is not like Cassinell. There, the defendant identified a responsible adult
and DOC determined the responsible adult’s residence was appropriate for home detention when
combined with the use of GPS monitoring. The responsible adult did not have a criminal history,
did not take any medication, was retired, lived far from the complainant, and had a home-security
system. The trial court found that she was an appropriate candidate but nevertheless denied the
motion because she did not have the ability to prevent the defendant from harming members of the
public, including the complaining witness. Justice Cohen reversed, concluding that the trial court
impermissibly elevated public safety “beyond what any responsible adult or conditions of release can
reasonably accomplish.” Cassinell, 2021 WL 4101704, *3. Justice Cohen noted that the trial court’s
conclusion denying the responsible adult was incorrect because it denied “release in the face of the
evidence before it.” Id. The trial court here did not deny release in the face of evidence pointing
toward release. The candidate differed significantly from the responsible adult in Cassinell, and
home detention at the candidate’s residence, though briefly contemplated by the trial court, did not
appear to be an option given DOC had not investigated the residence.

Finally, defendant argues that the trial court erred by not granting his request for release to
home detention. He maintains that, in effect, the trial court approved his request and acknowledged
the statute applied to him when it forwarded the application to DOC such that the court was
subsequently required to analyze whether home detention would reasonably assure his appearance in
court. See 13 V.S.A. § 7554b(b)(1)-(3).
“Issues of statutory interpretation are subject to de novo review.” State v. Gurung, 2020 VT
108, ¶ 23 (quotation omitted). “If the intent of the Legislature is apparent on the face of the statute
because the plain language of the statute is clear and unambiguous, we implement the statute
according to that plain language.” State v. A.P., 2021 VT 90, ¶ 12 (quotation omitted).
Defendant’s argument is squarely addressed by the home-detention program statute, 13
V.S.A. § 7554b. Under § 7554b(b), persons who are “detained pretrial . . . for an inability to pay bail
after bail has been set by the court may be . . . appropriate for home detention.” Id. § 7554b(b).
The statute’s language is clear—before considering a person for the home-detention program, the
court must have set bail and the defendant must not be able to pay bail. Subsection (b) contains no
other provision allowing pretrial detainees to be released into the home-detention program without
first meeting this threshold.
No bail has been set in this case. At the February 2 hearing, the court indicated that it did
not intend to set bail. Thus, however defendant wishes to characterize the trial court’s forwarding
of his application to DOC, the trial court was correct to deny the request given this reality.
Defendant argues that State v. Whiteway, 2014 VT 34, 196 Vt. 629 (mem.), stands for the
proposition that § 7554b(b) implicitly applies to persons “who cannot meet the conditions of release
imposed by the court.” In Whiteway, we held that a prior version of § 7554b(b) also applied to
persons who have no right to bail. Id. ¶ 16; see also 13 V.S.A. § 7553 (“A person charged with an
offense punishable by life imprisonment when the evidence of guilt is great may be held without
bail.”). The operative language in that version of § 7554b(b) included the language “lack of bail.”2
After Whiteway, the Legislature amended the statute, removing “lack of bail,” and expressly
excluding persons charged under § 7553 and § 7553a, the statutes governing bail in life-
imprisonment and violent felony cases. See 2017, No. 164 (Adj. Sess.), § 7. If the Legislature
wished to amend the statute to apply to persons who cannot meet conditions of release under 13
V.S.A. § 7554, it would have done so. Whiteway does not suggest otherwise.
Affirmed.
FOR THE COURT:
Karen R. Carroll, Associate Justice
2 The statute provided that “the status of a defendant who is detained pretrial in a
correctional facility for lack of bail may be reviewed by the court to determine whether the
defendant is appropriate for home detention.” See 2017, No. 164 (Adj. Sess.), § 7.