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State v. Hendricks11/16/2001
On Appeal from District Court of Vermont, Unit No. 1, Windham Circuit November Term, 2000 David Suntag, J.
Defendant Thomas Hendricks appeals a jury conviction for second degree domestic assault. Defendant claims that the trial court erred in: (1) rejecting the plea agreement; (2) taking judicial notice of family court proceedings between defendant and the victim; (3) admitting prior bad acts evidence involving the same victim; (4) permitting the jurors to take notes; and (5) issuing jury instructions. Defendant also claims the trial court failed to give him credit for time spent in custody. We affirm with respect to all claims except the last which is moot.
This case arises out of lengthy and volatile relationship between defendant and Michele Lee (Ms. Lee or the victim), defendant's former girlfriend of fourteen years. Defendant and Ms. Lee cohabitated, worked together and had two children. On January 25, 1999, during an argument, Ms. Lee claimed that defendant grabbed her by the throat and banged her head against the wall. She stated that when she fought back, defendant pushed her into the floor, and that when he let her go, she kicked him in the groin. Ms. Lee left the residence, but returned later to pick up medication and clothing. When she returned, she stated that defendant knocked her down to the ground and choked her. A police officer who interviewed Ms. Lee at the hospital emergency room noted that she was "visibly upset," and that she had bruises on her neck and numerous abrasions on the right corner of her mouth and on the right side of her back.
Defendant's son told the police officer that he had observed the couple fighting, and that he had intervened to separate them. Defendant, however, stated that Ms. Lee had kicked him in the groin, bit his finger and hit him in the head, and that he had merely pushed her away in self-defense. Defendant had "a small laceration to the left pinky finger and a lump on the top left side of the head."
The day after the alleged assault, defendant was arraigned on a charge of second degree aggravated domestic assault, in violation of 13 V.S.A. § 1044(a)(2). In April 1999, while the case was pending, defendant was arraigned on new charges, including one felony count violation of an abuse prevention order, and two misdemeanor counts for violating his conditions of release. Defendant initiated contact with Ms. Lee by sending her a thank you card.
On September 15, 1999, pursuant to a plea agreement, defendant entered a guilty plea to the felony charge for violating the relief from abuse order, and to one misdemeanor count for violating his conditions of release. The State agreed to dismiss the aggravated domestic assault charge and the second misdemeanor charge of violation of conditions of release. The State also agreed to recommend a sentence of eighteen to forty-two months, all suspended except sixty days. Under the agreement, defendant would, at sentencing, be free to argue for a lesser sentence.
On September 24, prior to the sentencing hearing, defendant was charged with three felony violations of the abuse prevention order and one violation of conditions of release. On September 15, defendant had approached Ms. Lee outside of family court. The following day, the rear window of Ms. Lee's friend's automobile was smashed while he was visiting her at her home. Although there is no evidence that defendant smashed the window, the next day defendant approached Ms. Lee at her home and said, "Thank you for leaving your shades up so I know that he wasn't there." Defendant subsequently contacted Ms. Lee by telephone on more than one occasion, sent her flowers and a marriage application, and approache
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