Saturday March 30, 2013

KEITH WHITCOMB JR.

Staff Writer

BENNINGTON -- A man sentenced to serve 25 years to life in prison for sexually assaulting a 12-year-old girl had his two convictions upheld by the Vermont Supreme Court.

In 2011 Rusty Brooks, 37, was convicted by a jury of two counts of aggravated assault on a child under 13. He was acquitted of a third charge. The court's decision, written by Judge Marilyn Skoglund, said Brooks claimed in his appeal that the court failed to suppress statements he made to police on Aug. 31, 2009, allowed his web browsing history to be admitted as evidence, and allowed testimony that had been previously excluded. Brooks also contended that even if none of these elements on their own was enough to prevent a fair trial, their effect altogether caused that to happen.

According to the Supreme Court decision, which outlined the facts of the case, on Aug. 31, 2009 Brooks was questioned by Bennington Police about allegations he had sexually assaulted a 12-year-old girl. The interview lasted 40 minutes during which Brooks denied having done so. Brooks was then held at the Bennington Police Station for six hours, after which Sgt. Michael Plusch spoke to him about arranging his dinner.

Skoglund wrote that Brooks made the statement to Plusch "Well, if everyone said I did this I must have," before being read his Miranda warning. Plusch then took Brooks to an interview room and read him the warning. During their 75 minute interview Brooks denied once more the allegations but began speaking in hypothetical statements saying how he would "probably" have gone about the act. Brooks then wrote a statement confessing to having had sex with the girl and expressing remorse.

Skoglund wrote that the trial court suppressed the statements Brooks made prior to being read his Miranda warnings but found the things he said after being read them admissible. Brooks, through his attorney Lamar Enzor, had wanted all his statements suppressed as he claimed they were not voluntary and he was not properly informed of his rights.

The Vermont Supreme Court ruled that what Brooks said to police after being informed of his rights was not tainted by what had been said before being read them and found no error in the trial court's ruling.

Plusch was called as a witness by the state asked about the conversation with Brooks while he was in the holding cell. That part of what happened had been ordered to be excluded from testimony but Plusch responded "We were speaking through the door, and I was asking what he wanted to eat, and that he was trying to talk to me about what was going on, so I opened up the cell door, and we started to talk. . . . I told him that [he will]. . . most likely be held for the evening, and he then said, you know, if everybody thinks I did it -"

Plusch did not finish as an objection was made by Enzor. After bench conference the jury was told to disregard what Plusch said.

Skoglund wrote that not only was Plusch not able to finish his paraphrase of Brooks, but the complete statement attributed to Brooks was admitted later in proper fashion so there was no affect on the fairness of the trial.

The state also introduced Brooks' web browsing history which indicated he had visited websites with themes specific to the act Brooks was accused of. Brooks, through counsel, argued such evidence was not relevant to the case and because others had access to the computer there was nothing tying to Brooks. The state was allowed to show the jury a short list of sites on the grounds it indicated an overall plan or scheme by Brooks and was not merely prejudicial.

Skoglund wrote that the Vermont Supreme Court determined that if there had been an error here it would have been harmless and so did not examine the admissibility of that piece of evidence. One way the court deems harmlessness of an error is by the significance of the evidence in question. Skoglund wrote the Website evidence was deemed minor by the Supreme Court when compared to Brooks' written confession.

Contact Keith Whitcomb Jr. at kwhitcomb@benningtonbanner.com or follow him on Twitter @KWhitcombjr