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State v. Hendricks11/16/2001
his case concerning allegations of prior violent incidents between the Defendant and [victim]. You should distinctly understand that the Defendant is not on trial for any actions other than the charged offense. This other evidence was permitted to be introduced only for you to consider the context of the relationship between the Defendant and [victim] out of which the present allegations arose.
Because defendant did not object to the court's instruction after the charge, nor request specific language, we review the court's determination under the plain error standard. V.R.Cr.P. 52(b); see also State v. Holcomb, 156 Vt. 251, 256, 590 A.2d 894, 897 (1991) ("failure to give a limiting instruction . . . in the absence of a request or objection, will be grounds for reversal only on a finding of plain error.")
In State v.Wheel, 155 Vt. 587, 603, 587 A.2d 933, 943 (1991), this Court adopted the United States Supreme Court holding that "evidence of prior bad acts may be admitted for the purposes stated in Rule 404(b) without a preliminary finding by the trial court that the act actually occurred." (citing Huddleston v. United States, 485 U.S. 681, 688 (1988)). In fact, the trial court's determination is limited to finding "whether there is sufficient evidence for the jury to reasonably conclude that the prior act took place," not that "the act took place by a preponderance of the evidence." Wheel, at 603-4, 587 A.2d at 943 (citing Huddleston, 485 U.S. at 690). There is thus no requirement that the State prove the commission of the prior acts by a preponderance of the evidence.
The trial court's charge on the prior bad acts evidence limits its use to "the context of the relationship between the Defendant and [victim] out of which the present allegations arose." Although the court did not specifically include language regarding character evidence, its charge defined the limited scope for which the evidence was to be used. We find no plain error here, where the court admitted prior bad acts evidence to show context, and issued limiting instructions requiring jurors to consider it for that purpose alone. See Holcomb, 156 Vt. at 256, 590 A.2d at 897 (general charge limiting consideration of the alleged act is sufficient).
IV.
Defendant next argues that it was plain error for the trial court to permit the jury to take notes. As both parties concede, there is no statute, judicial decision or procedural rule in Vermont expressly prohibiting or permitting juror note-taking. However, we note that a majority of jurisdictions "have held that the decision to permit jurors to take notes should be left to the sound discretion of the trial court." People v. Hues, 704 N.E.2d 546, 548 (N.Y. 1998) (listing numerous federal and state appellate court decisions); see also Corti v. Lussier, 140 Vt. 421, 423, 438 A.2d 1114, 1115 (1981) (noting endorsement of juror note-taking by the American Bar Association, Standards for Criminal Justice, Standard 15-3.2 and Comment, Taking Note of Note-Taking, 10 Colum. J. L. & Soc. Prob. 565, 587 (1974)).
In its decision to permit juror note-taking at the discretion of the trial court, the Hues court required cautionary instructions both at the start and conclusion of a trial, reminding jurors about the potential distraction of taking notes, and over-reliance on one's notes or on the opinion of another juror who took notes. Hues, 704 N.E.2d at 549-50. The court further suggested that instructions should remind the jury of the availability of the court's verbatim transcript as a preferable record. Id. at 550.
In the instant case, the court's preliminary and closing instructions included the recommendations suggested by
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