State v. Carter

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-263


State of Vermont                              Supreme Court

                                              On Appeal from
     v.                                       District Court of Vermont,
                                              Unit No. 3, Caledonia Circuit

Stephen R. Carter                             February Term, 1990



Shireen Avis Fisher, J.

Dale O. Gray, Caledonia County State's Attorney, St. Johnsbury, and
  Rosemary Hull and Gary S. Kessler, Department of State's Attorneys,
  Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and Henry Hinton and William A.
  Nelson, Appellate Defenders, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     ALLEN, C.J.   Defendant appeals from a conviction, after a jury trial,
of burglary, petty larceny, and carrying a weapon during the commission of a
felony.  We affirm.
     The State presented evidence that defendant assisted a 12-year-old boy
in entering a trailer and stealing a jug of coins.  The boy testified that
defendant had a .22 caliber pistol in his pocket during the incident, and
the State based the weapon charge on this evidence.  The informations were
docketed separately, and the trial court granted the State's motion to
consolidate the three charges.  Defendant moved to sever the gun charge from
the two-count information charging burglary and petty larceny, but the
motion was denied on the theory that no prejudice would result from common
trial of charges based on events that occurred at the same time and place.
The jury returned guilty verdicts on all three charges, and following denial
of defendant's motions for acquittal and new trial, he filed the present
appeal.
     Defendant argues first that the trial court erred in denying his motion
to sever under V.R.Cr.P. 14(b)(1) because severance was necessary for a
"fair determination of the defendant's guilt or innocence of each offense."(FN1)
He contends that since gun possession evidence would not be admissible in a
separate burglary and larceny case, failure to sever the charges gave the
State the improper advantage of making defendant appear worse in the jury's
eyes.  In any event, he adds that conviction on the felony of burglary was a
prerequisite to conviction on the gun charges. (FN2) The prejudice was therefore
compounded, by his theory, since evidence on the weapon charge tended to
inflame the jury and enhance the likelihood of a conviction on the burglary
charge.
     The argument is not persuasive and in fact misconstrues the goals and
priorities of Rule 14.  Whenever two or more offenses have been joined for
trial solely on the ground that they are of the same or similar character,
the defendant is entitled to severance as a matter of right under V.R.Cr.P.
14(b)(1)(A).  State v. Chenette, 151 Vt. 237, 242, 560 A.2d 365, 370 (1989).
This rule does not apply, however, where the charges involved "derive from a
single happening, and occurred in one geographical location and within a
restricted and uninterrupted time sequence."  State v. Beshaw, 136 Vt. 311,
313, 388 A.2d 381, 382 (1978).
     In the present case the evidence revealed more than random events of
the same or similar character.  Defendant undertook a burglary with the gun
on his person.  In drawing a line between that which is simply of the same
or similar character and that which is part of a single happening, the
trial court could fairly infer that the carrying of the loaded pistol was
connected to the burglary, whether or not defendant used the pistol in any
active way or intended to do so.  The court did not err in concluding that
the carrying of the pistol and the burglary were part of a single happening.
Once this conclusion is reached, the argument for severance on grounds that
evidence of the gun possession would not be admissible in a separate trial
for burglary and larceny lacks practical or logical support.
     Defendant also contends that the trial court should have granted the
severance request under V.R.Cr.P. 14(b)(1)(B), which allows a trial judge to
grant severance to allow for a "fair determination" of defendant's guilt or
innocence with respect to each offense charged.  The trial court did not
agree with defendant that separate trials were required to reach a fair
determination of guilt or innocence, and it had wide latitude to reach that
conclusion under the Rule.  As we stated in State v. Richards, 144 Vt. 16,
470 A.2d 1187 (1983), "'[t]he issue is whether the severance will, in the
judgment of the trial court, promote a fair determination of the defendant's
guilt or innocence of each offense.'"  Id. at 19, 470 A.2d  at 1189 (emphasis
in original) (quoting Beshaw, 136 Vt. at 313, 388 A.2d at 382).  The burden
of showing "unfair prejudice" from the denial of severance is defendant's.
Chenette, 151 Vt. at 243, 560 A.2d  at 370.
     We are not persuaded that the court abused its discretion.  There was
sufficient evidence that defendant had the weapon in his pocket, and the
transcript does not reveal any attempt by the State to exaggerate the facts
or to inflame the jury in its consideration of the burglary and petty
larceny charges.  The court did not err in denying severance.
     Defendant contends next that he should have been acquitted of the
weapons offense because 13 V.S.A. { 4005 requires a "relationship" between
the underlying felony and the carrying of the weapon and the record is
devoid of evidence of such relationship.  The State need not show that
defendant knowingly carried the weapon.  State v. Kerr, 143 Vt. 597, 605,
470 A.2d 670, 674 (1983).  "The element of scienter is simply not a part of
the statute, and we will not read into it such a requirement."  Id. at 605,
470 A.2d  at 674.  We do find persuasive, however, the contention that there
is a line at which the relationship between the carrying of a dangerous or
deadly weapon and the commission of the underlying felony becomes so
attenuated as to fall outside the purview of the statute.  The purpose of
the analogous federal statute, which provided that it was a crime to
"carr[y] a firearm unlawfully during the commission of any felony," 18
U.S.C. { 924(c)(2)(1982), amended by 18 U.S.C. { 924(c)(2) (Supp. II 1984),
was interpreted to be the imposition of more severe sanctions "where
firearms facilitated, or had the potential of facilitating, the commission
of a felony."  United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985),
cert. denied, 484 U.S. 867 (1987).  It was not within Congress's intent, the
court concluded, "'to penalize one who happens to have a gun in his
possession when he commits an entirely unrelated offense.'"  Id. (quoting
United States v. Moore, 580 F.2d 360, 362 (9th Cir.), cert. denied, 439 U.S. 970 (1978)).  Likewise, we do not ascribe such an intent to the Vermont
Legislature.
     Our agreement with defendant that { 4005 requires a relationship
between the carrying of a weapon and the underlying felony does not compel
agreement with his argument that such a relationship has not been shown
here.  Contrary to defendant's assertion, this relationship does not
require that the weapon be used or brandished.  The inclusion of the word
"concealed" in the statute belies this assertion.  See also United States
v. Power, 881 F.2d 733, 737 (9th Cir. 1989) (to satisfy relationship under
federal statute, defendant "need not display or brandish a firearm").  It is
enough that the weapon had the potential of facilitating the commission of
the underlying felony.  The evidence in this case, when viewed in the light
most favorable to the State, State v. French, 152 Vt. 72, 81-82, 564 A.2d 1058, 1063 (1989) (standard on review of a motion for judgment of
acquittal), showed that defendant loaded his pistol the night before the
burglary and had it in his pocket during the commission of the burglary.
That a weapon has the potential of facilitating the felony of burglary is
patent.  Defendant was not entitled to a judgment of acquittal.
     Alternatively, defendant contends that he should be granted a new trial
because of the trial court's failure to instruct the jury that it must find
a relationship between the carrying of the gun and the commission of the
burglary.  Defendant concedes that there was no request to instruct, or
objection to the failure to instruct, on this relationship.  Accordingly,
our review is limited to plain error, State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989), which will not be found unless the error is of a magnitude
sufficient to constitute a miscarriage of justice.  State v. Davignon, 152
Vt. 209, 222, 565 A.2d 1301, 1308 (1989); State v. Giroux, 151 Vt. 361, 365,
561 A.2d 403, 406 (1989).  There was no plain error here.  The instruction
given expressly required for conviction that the jury find beyond a
reasonable doubt "that the defendant carried a weapon while that burglary
was being committed."  As stated above, the relationship between the
carrying of a weapon and the commission of burglary is patent.  We find
these two things in combination enough to overcome any fear of a miscarriage
of justice.  See Roy, 151 Vt. at 24, 557 A.2d  at 889 (combination of ample
evidence and an approximate instruction sufficient to refute claim of plain
error).
     Finally, defendant argues that the trial court's failure to allow
disclosure to the jury of the dismissal of certain burglary charges against
the juvenile accomplice unrelated to the present offense violated
defendant's Confrontation Clause rights, citing Davis v. Alaska, 415 U.S. 308 (1974).  The jury was told that the charges against the juvenile for his
part in the instant break-in had been dropped by the State, and hence
defendant's purpose of demonstrating a potential motive for bias by the
witness was achieved, at least in part.  The court had allowed discovery of
the juvenile's other records for purposes of cross-examination of the
witness to further demonstrate his bias, and also conducted an in camera
inspection of the juvenile court record to confirm the information supplied
by the State.
     On cross-examination, the witness purported not to recall information
about the status of the State's cases against him, responding to specific
questions elaborating each alleged offense by failing to recall it.  One
example:
                  Q.  Do you remember discussing with him
               [Trooper] a theft of property from the Aldrich
               residence on School Street in West Burke in
               which a Kawasaki dirt bike, a Stihl chain saw,
               and five gallons of gas in a can were stolen?

                  A. No.

Counsel then brought out in questioning that the witness had been placed in
a diversion program but had subsequently been removed from diversion
"[b]ecause I got in trouble."  The following exchange then occurred:
                  Q.  When you were in juvenile court back in
               November, were you charged with breaking into
               the Jenks home in Burke Hollow and stealing
               jewelry?

                  A.  I don't know.

                  Q. You don't know if you were charged or
               not?

                  A. Yup.

                  Q. Do you know if you were charged with
               that now?

                  A. No.

                             *       *       *

                  Q. Do you know if that charge was dropped?

                  A. No.

                  Q. That charge was dropped, wasn't it?

                  A. I don't know.

                  Q. Well, you were also charged with a
               breaking into Pamela Lafaivre's trailer and
               stealing the jug of coins, weren't you?

                  A. Yes.

                  Q. And that charge was dropped, wasn't it?

                  A. I don't know.

Defense counsel then asked the court to "[d]isclose to the jury the status
of these cases in juvenile court," but the request was refused.  As a result
of the court's ruling, the defense was unable to document for the jury that
another burglary case involving the juvenile had been dismissed.  Hence, the
asserted loss of the confrontation right.
     But unlike the trial court in Davis v. Alaska, the court in the present
case did not bar cross-examination about the witness's record, nor did it
impose restrictions on the kinds of questions defendant's counsel was
allowed to ask. (FN3) See Delaware v. Van Arsdell, 475 U.S. 673, 679 (1986) ("By
thus cutting off all questioning about an event that the State conceded had
taken place and that a jury might reasonably have found furnished the
witness a motive for favoring the prosecution in his testimony, the court's
ruling violated respondent's rights secured by the Confrontation Clause.");
see also United States v. Klauer, 856 F.2d 1147, 1149 (8th Cir. 1988) (sixth
amendment not violated by denial of right to cross-examine witness about
specifics of sentencing concessions where jury was already aware of
sentencing concessions as part of plea agreement);  United States v. De
Parias, 805 F.2d 1447, 1452 (11th Cir. 1986) (sixth amendment not violated
where defendant allowed to cross-examine witness about most, but not all,
details of plea agreement), cert. denied, 482 U.S. 916 (1987).
     In his brief, defendant concedes that the jury knew that the witness
had received immunity for the case at trial and that he had other criminal
charges pending.  On appeal, his sole confrontation claim is that the trial
court refused to allow evidence to be introduced about dismissal of the
unrelated burglary charge.  But while Davis v. Alaska guaranteed defendant
the opportunity to effectively cross-examine the witness as part of
defendant's right of confrontation, "it does not follow that the right to
cross-examine is denied by the State whenever the witness' lapse of memory
impedes one method of discrediting him."  Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985) (per curiam).
     In the present case the defense was able to leave a clear impression of
both the extent of the witness's involvement in criminal activity and his
lenient treatment by the State.  Thus, the instant case is unlike McKinzy
v. Wainwright, 719 F.2d 1525, 1527 (11th Cir. 1983), where "[t]he questions
that might have established a motive for the witness to try and please the
state were entirely unexplored."  The juvenile's reluctance or inability to
answer even simple questions about the disposition of past criminal charges
did not prevent the defense from bringing those charges and their
disposition to the jury's attention. (FN4) Nor can it be said, viewing the
record as a whole, that introduction of the conviction record would have
significantly added to the jury's impression that the witness was biased in
favor of the prosecution.  See Klauer, 856 F.2d  at 1150;  De Parias, 805 F.2d  at 1452.  The witness never affirmatively denied his involvement in the
criminal activity about which counsel inquired, claiming no recollection or
knowledge of any of the events raised in the questions to him.  Given the
jury's knowledge of the witness's immunity in connection with the charges at
trial and his failure to rebut the facts about the unrelated offenses put
to him in the form of questions on cross-examination, it cannot fairly be
said that barring introduction of the witness's criminal record in order to
further impeach him unduly limited the scope of cross examination or limited
defendant's right of confrontation.  As the court said in United States v.
Turcotte, 515 F.2d 145, 151 (2d Cir.), cert. denied, 423 U.S. 1032 (1975),
"[i]f the jury is otherwise in possession of sufficient information
concerning the witness' possible motive for testifying falsely in favor of
the government, there is no abuse of discretion if a judge restricts the
cross-examination of a government witness."
     A similar issue arose in United States v. Ferguson, 776 F.2d 217 (8th
Cir. 1985), cert. denied, 475 U.S. 1020 (1986), where defendant sought to
impeach a prosecution witness by introducing evidence of the witness's prior
convictions, which had been expunged pursuant to state law.  Defendant's
counsel cross-examined the witness, but the trial court barred the defense
from introducing the expunged convictions.  In affirming that ruling, the
court stated:
           A violation of the confrontation clause occurs only
         where the limitation on the cross-examination could
         reasonably be expected to have a substantial effect on
         the jury's decision.  United States v. Farnsworth, 729 F.2d 1158, 1162 (8th Cir. 1984). In the instant case,
         appellant was allowed to question, and did so question,
         Marilyn Martin as to the underlying facts of her prior
         convictions for fraud.  Appellant was, therefore,
         afforded at least some opportunity to impair Marilyn
         Martin's credibility and to bolster his defense.  United
         States v. Witschner, 624 F.2d 840, 844-45 (8th Cir.),
         cert. denied, 449 U.S. 994 (1980).  Under these
         circumstances, appellant was not denied his sixth
         amendment right to confront witnesses.

776 F.2d  at 223.  In the case at bar there had been much more than "some
opportunity to impair" the witness's credibility, since the jury was aware
that he had received immunity from prosecution for the charges facing
defendant.  We do not hold that merely asking a question of a witness
constitutes evidence of the facts implied as premises of the question.  But
here the issue is whether the defense had an adequate opportunity to
demonstrate through cross-examination the possible bias of a key witness,
and we have often pointed out that the mere asking of a question or the
making of a statement, unaided by corroborating evidence, may have a
significant impact on a jury.  State v. Broe, 146 Vt. 135, 140-41, 498 A.2d 1039, 1042-43 (1985) (remark by counsel during final argument can never be
"within permissible bounds" where it is a statement of evidentiary fact that
is simply not true); State v. Barcomb, 136 Vt. 141, 142, 385 A.2d 1089, 1089
(1978) (fair trial right infringed by prosecutor's questions about state-
ments defendant denied making and State did not attempt to prove).
     Reading the record as a whole, we conclude that defendant's
Confrontation Clause rights were not violated by the court's refusal to
allow the introduction of the witness's juvenile court records.
     Affirmed.


                                        FOR THE COURT:




                                        Chief Justice




FN1.    V.R.Cr.P. 14(b)(1) reads as follows:
     (1) Severance of Offenses.
         (A) Whenever two or more offenses have been joined for trial
     solely on the ground that they are of the same or similar
     character, the defendant shall have a right to a severance of the
     offenses.
          (B) The court, on application of the prosecuting attorney, or
     on application of the defendant other than under subparagraph (A),
     shall grant a severance of offenses whenever,
               (i) if before trial, it is deemed appropriate to promote
     a fair determination of the defendant's guilt or innocence of each
     offense; or
               (ii) if during trial upon consent of the defendant, it
     is deemed necessary to achieve a fair determination of the
     defendant's guilt or innocence of each offense.

FN2.    13 V.S.A. { 4005 states:
         A person who carries a dangerous or deadly weapon,
         openly or concealed, while committing a felony or while
         committing an offense under section 667 of Title 7, or
         while committing the crime of smuggling of an alien as
         defined by the laws of the United States, shall be
         imprisoned not more than five years or fined not more
         than $500.00, or both.

FN3.    And unlike Pennsylvania v. Ritchie, 480 U.S. 39, 43-44 (1987), here
there was here no deprivation of a right to pretrial discovery in aid of
effective cross-examination.  The trial court released the child witness's
record to defense counsel, who asked detailed questions of the witness based
upon that information.

FN4.    In his closing argument, counsel for defendant summarized the basis
for the potential bias of this witness with specificity:
          [The witness] knew he was in a world of trouble and he
          was looking for a way out. [The witness] got the idea
          that it would go easier on [him] if he helped Trooper
          DeLisle and the Vermont State Police.  This only makes
          sense.  This is good police work.  In fact, it did go
          easier on [him].  He was faced with a series of -- a
          large series of very serious crimes; yet not only was he
          referred to Diversion, a program for first time
          offenders resulting in no court record, but other
          charges were dismissed, including the charge that he
          broke into Pam Lafaivre's trailer, walked off with that
          jug full of coins.
               I suggest to you the reason that charge was
          dismissed was [so that] he can sit in that witness stand
          pointing the finger at Mr. Carter.  Without [the
          witness's] testimony, there . . . would be no case
          against Mr. Carter.