recuse was filed. At best, defendant might have argued that Vermont Rule of Criminal Procedure 26(a) formed a basis for challenging these actions, but, as mentioned earlier, defendant failed to preserve this argument at the trial level and therefore cannot present it on appeal. Rule 605 is not the proper vehicle for challenging whether evidence was taken ex parte. ¶ 31. The trial judge’s decision here regarding defendant’s competency was a decision to be made by only the judge, within her discretion, and not by the jury. The judge’s statements were made only to counsel, not to the jury, and do not raise the more problematic situation of a judge giving the jury information that was not otherwise presented in court. Cf., e.g., United States v. Nickl, 427 F.3d 1286, 1294 (10th Cir. 2005) (<HOLDING>). In essence, the majority’s decision today
holding that term court encompasses trial by both judge and jury holding that the trial judge rather than the jury makes the determination of whether the defendant violated the implied consent law holding that rule 605 was violated when trial judge made statements to jury that added new evidence regarding an ultimate factual issue to be decided by the jury holding that the fear a jury may improperly use rule 404b evidence subsides when the trial judge gives the jury a limiting instruction regarding proper use and that the fear of a trial by ambush recedes when the prosecution has given notice of the evidence to be introduced and there is no evidence that the prosecution is placing the defendants entire earlier life on trial recognizing that a trial court has the authority before accepting a verdict and before discharging a jury to send the jury back to correct a mistake in its verdict but concluding that jury had been discharged because jury was allowed to return to court on following day and was allowed to deliberate same issue it previously had decided