DOVER — The Vermont Supreme Court denied an appeal filed by a man convicted of assaulting a police officer in 2014 to have his assault charge dismissed. But the Supreme court also ruled that the trial court erred in granting a mistrial on domestic assault charges filed against Miles Dow, 25, of Dover.

Police had responded to a domestic disturbance on March 29, 2014. Upon arrival, Dow approached two officers with what was described as a machete. The officers drew their weapons but Dow chased them out of the house. Eventually, the officers convinced Dow to surrender.

Following his trial, a jury convicted him of assaulting an officer with a deadly weapon and attempted simple assault by menace on a law enforcement officer. Dow was also on trial for second degree aggravated domestic assault, reckless endangerment, and interference with access to emergency services charges, but the court ordered a mistrial on those charges.

During the trial, while taking testimony on the domestic assault charges, Dow's attorney argued that his alleged victim's Facebook messages right before the incident showed she was contacting other men and was terminating the marriage and the 911 call on March 29 was a pretext in support of that objective.


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The Windham County State's Attorney's Office objected to this line of questioning on the grounds that it was irrelevant to whether defendant had committed crimes of domestic violence. In addition, the prosecution complained that questions posed by Dow's attorney "served no purpose except to embarrass and humiliate the complainant and to prejudice the jury against her."

"The court concluded that the questions created an implicit bias and unfairly undermined the witness's credibility," wrote the Supreme Court majority in its decision. "Although it was difficult to ascertain the effect on the jury, the court concluded that there was damage to the jury's ability to decide the case fairly and impartially. ... Accordingly, the court declared a mistrial ..."

While the trial court declared a mistrial at the request of the state on the domestic assault charges, it did not grant an acquittal, which meant Dow could be tried again. However, the Supreme Court noted the trial court erred in granting a partial mistrial.

"(T)he trial judge had a number of opportunities to rule that the line of questioning asked for inadmissible evidence and failed to do so even though defense counsel fully disclosed what testimony she sought," noted the majority. "On hearing the first question, the court did not explain its ruling to make clear that the whole line of questioning would be improper. ... We stress here that in concluding that the mistrial was unwarranted, we are not similarly holding that the evidence defense counsel sought to have admitted was admissible. On the other hand, we believe that the questions alone, particularly in this case where evidence shows that the complainant posted topless photos and engaged in intimate conversations online, do not show the degree of prejudice that the State argues."

The majority wrote that the questions asked by the defense counsel "were asked in good faith and in the absence of a clear ruling prohibiting them and the questions, or parts of a question uttered before the objection came, are not themselves evidence and, in fact, gave the complainant the opportunity to explain the controlling behavior of defendant to his detriment."

Therefore, noted the majority, the mistrial failed to accord Dow's "valued right" to have his trial completed by a single jury. Because the majority ruled the mistrial was "an abuse of discretion," the legal standard for Double Jeopardy "precludes retrial of defendant on the mistried charges."

Attorneys for Dow also argued that he should not have been convicted of both assaulting an officer with a deadly weapon and attempted simple assault by menace on a law enforcement officer because it violated the Double Jeopardy Clause of the Constitution, which states that no person may "be subject for the same offence to be twice put in jeopardy of life or limb."

"The State has presented no reason why the two convictions in this case do not violate double jeopardy principles," wrote the majority. "Therefore, we conclude that conviction for both offenses violates the Double Jeopardy Clause."

However, Dow lost his appeal to have the Supreme Court toss the greater of the two convictions, rather than the simple assault conviction. But according to the Supreme Court, it's up to the state to decide which of the convictions to vacate, and the state chose the simple assault conviction.

Dow's attorneys also insisted that the trial court erred in allowing prior bad acts to be introduced at trial. The Supreme Court disagreed.

"With allegations of domestic abuse, prior history of abuse may be admitted to provide 'situational context' to a factual scenario that might otherwise seem 'incongruous and incredible to a jury,'" noted the Supreme Court.

As a result of its analysis of the appeal, the court affirmed Dow's aggravated-assault conviction, vacated the attempted simple assault conviction, and reversed the trial court's denial of the motion to dismiss.

In the dissent, Chief Justice Paul Reiber wrote "The majority errs by focusing mainly on whether counsel's improper and irrelevant questions were made in good faith or in violation of a clear court directive, and failing to give the trial court sufficient deference on the most important determination — the extent of bias created. ... It is clear that defense counsel was aware that the line of questioning involved evidence with limited relevance and high prejudicial effect. The trial court found, and the majority seems to agree, that the questions were improper and sought to introduce evidence that was not relevant, but was prejudicial."

Reiber noted that the trial court was in the best position to judge whether the improper questioning and the implications as a result created bias of such magnitude that it could not be cured by an instruction to the jury.

"The trial judge, who had the unique ability to listen to the tone of the questioning and observe the jurors' reactions, determined that the questions denigrated the victim, created bias, and irreparably prejudiced the State's case, and thus granted a mistrial," wrote Reiber.

Despite the fact that the trial court sustained a number of objections by the prosecution over the questioning of the alleged victim, "Defense counsel persisted, however, and continued asking about the victim's relationship with her Facebook friend," wrote the minority, thereby bringing into question as to whether Dow's trial court attorney acted "in good faith."

"It is precisely because the trial judge has the unique ability to see and hear jurors, is 'most familiar' with evidence, and has observed argument tone and juror reaction, that the appellate court should defer to the judge's assessment of whether bias was created," wrote Reiber. "I would accord such deference to the trial court's determination in this case."

According to the state's attorney's office, because of the Supreme Court's ruling, Dow cannont be retried on the domestic assault charges, but will serve out the remainder of his sentence for assault on a police officer.

Bob Audette can be contacted at 802-254-2311, ext. 160.