State v. Verrinder

STATE_V_VERRINDER.92-484; 161 Vt. 250; 637 A.2d 1382

[Filed 27-Dec-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-484


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Addison Circuit

 William Verrinder                            October Term, 1993


 David A. Jenkins, J.

 John T. Quinn, Addison County State's Attorney, Middlebury, for plaintiff-
   appellee

 Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant


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


      ALLEN, C.J.   Defendant William Verrinder appeals his conviction for
 second degree murder and sentence to a term of twenty years to life.  We
 affirm.
      At around 6:30 in the evening of July 29, 1991, defendant shot and
 killed Kenneth Bullock.  Defendant is a Vietnam veteran who has experienced
 the symptoms of post-traumatic stress syndrome (PTSD).  He also suffers from
 severely impaired heart function that limits his ability to engage in
 activities taxing to his cardiovascular system.  In the fall of 1990, while
 working as a bartender at the Middlebury chapter of the Veterans of Foreign
 Wars (VFW), defendant developed a close friendship and spent considerable
 time with Debra Bullock, the wife of the victim.

 

      Kenneth Bullock was a physically imposing figure who drank heavily and
 regularly, and often became aggressive and confrontational when intoxicated.
 Bullock's wife, stepdaughter and son testified in graphic detail to physical
 abuse that he had inflicted on them.  Sometime in late 1990 or early 1991,
 Debra Bullock obtained a relief-from-abuse order which forbade him to
 approach his family or their house.  Bullock became aware of defendant's
 relationship with Debra, and at least twice threatened to kill defendant.
 Debra warned defendant that she thought Bullock carried a pistol.
      Late in the afternoon of July 29, 1991, defendant and Debra Bullock
 arrived at her Bridport home and found Bullock, who had come by to retrieve
 some belongings, standing across the street from the house.  At Bullock's
 request, she agreed to accompany him as he tried to sell several ceramic
 figurines.  Before leaving, she told defendant that her husband still wanted
 to kill him and requested that defendant meet her at the house when she
 returned within the half hour.
      The trip was fairly peaceful at the outset, but when Debra rebuffed
 Bullock's pleas for reconciliation, he became agitated, screamed at her, and
 accused her of sleeping with defendant.  They made several stops during the
 trip.  At one stop Debra called the VFW looking for defendant; she
 testified that she never spoke to him, but the VFW bartender testified that
 defendant took the call and left immediately thereafter.  When the trip
 resumed, Bullock started driving erratically and struck Debra several times.
 By the time the car passed Debra's house, defendant had returned and was
 waiting by his truck.  He saw Bullock's car speed past, Debra and Bullock
 struggling violently inside.  Defendant pursued them in his truck.
      Bullock's car came to a stop on a nearby road and Debra crawled out the
 passenger-side window.  Bullock continued down the road for 300 to 500 feet,

 

 made a U-turn and stopped.  According to defendant and Debra, defendant
 slowed to a stop to check on Debra, who said that Bullock was going to kill
 her.  A witness who had stopped to help Debra testified that defendant never
 stopped, but instead sped down the road toward Bullock's car.  Defendant
 crossed over into the opposite lane and the vehicles collided.
      Defendant testified that Bullock emerged from his car enraged, swearing
 he would kill him.  Defendant got out of his truck and stood by the door.
 The men were separated by their vehicles.  Defendant took his .45 caliber
 pistol, which he had left in the truck some time before to be repaired, and
 testified that he warned Bullock to stay away.  Bullock started toward
 defendant, defendant shot him, and Bullock dropped to the ground not far
 from the driver-side door of his car.  Defendant then went to the back of
 his truck and sat down in an effort to reduce his heart rate.  There was
 testimony that only a couple of seconds elapsed between the time of the
 collision and the shot.  Defendant believed that his heart condition
 prevented him from fleeing and would have killed him had he engaged in
 physical combat with Bullock.
      Defendant was charged with first-degree murder and claimed self-defense
 and defense of Debra Bullock.  At trial, defendant's version of events was
 contradicted by evidence given by other witnesses at the scene.  He was
 convicted of second-degree murder and sentenced to twenty years to life in
 prison.
      On appeal, defendant alleges six errors:  (1) the trial court
 improperly excluded evidence of an earlier alleged assault on a third person
 by the victim; (2) defendant allegedly made a statement to Debra Bullock
 just after the shooting that should have been admitted under an exception
 to the hearsay rule; (3) the trial court abused its discretion by not

 

 permitting an expert witness on battered woman syndrome to express an
 opinion that Debra Bullock suffered from the condition; (4) the State
 engaged in prosecutorial misconduct at trial during the taking of evidence
 and in closing argument; (5) the trial court should have specifically
 instructed the jury that evidence of specific incidents of violence on the
 part of the victim could be used in determining whether the victim was the
 first aggressor; and (6) in sentencing him, the trial court did not make
 written findings on all mitigating factors offered by defendant, made a
 finding of an aggravating factor not mentioned in the sentencing hearing,
 and abused its discretion by not imposing a sentence reduced from the
 presumptive term in light of alleged mitigating factors.  We examine each
 point in order.
                                     I.
      Defendant first claims that the trial court erroneously prevented a
 witness from testifying because of a pretrial ruling limiting evidence of
 the victim's character to specific acts of violence known to defendant and
 resulting in bodily harm.  He maintains that as a result of this ruling, a
 Dr. Stein could not testify to an incident in which he allegedly was
 assaulted by Kenneth Bullock.  In the motions hearing, the State moved to
 exclude Stein as a defense witness because defense counsel had provided
 notice of the witness only four days before.  The State had no prior notice
 of Stein as a witness or his proposed testimony, and Stein would have been
 available only for a telephone deposition until sometime during the period
 scheduled for trial.
      Defendant represented that this incident demonstrated Bullock's
 aggressive nature, and was probative on the issue of whether Bullock was the
 first aggressor in his confrontation with defendant on the day he was

 

 killed.  As such, the proffered evidence would be admissible under the
 V.R.E. 404(a)(2) exception to the rule excluding character evidence to prove
 action in conformity therewith. (FN1)
      The court granted the State's motion to exclude Stein as a witness, for
 two reasons:  (1) the State had insufficient notice of the witness, and (2)
 defendant did not witness the alleged assault, and as a result Stein's
 recounting of the incident itself was collateral and would lead to confusion
 of the issues.  The court went on to say that defendant could testify to the
 incident if he had learned of it through Debra Bullock before the shooting.
 Defense counsel acknowledged that defendant was aware of this allegedly
 aggressive conduct at little league games, but defendant never testified to
 it at trial.
      The trial court has broad discretion to sanction violations of
 discovery rules, and we limit review to an abuse of that discretion.  State
 v. Hugo, 156 Vt. 339, 344, 592 A.2d 875, 879 (1991); see also V.R.Cr.P.
 16.2(g).  Rule 16.1(c) of the Rules of Criminal Procedure requires the
 defendant, upon timely request by the prosecution, to disclose witnesses the
 defendant plans to call at trial.  The rule is intended to assist the
 prosecution in preparing for trial, State v. Meyers, 153 Vt. 219, 224, 569 A.2d 1081, 1085 (1989), and to provide an adequate opportunity to depose or
 interview prospective defense witnesses.  Thus, if a witness is not timely
 revealed to the State, the trial court may limit the witness' testimony or

 

 exclude the witness altogether.  See V.R.Cr.P. 16.2(g); State v. Edwards,
 153 Vt. 649, 649, 569 A.2d 1075, 1076 (1989).
      In Hugo, this Court upheld the trial court's exclusion of a defense
 witness who was disclosed to the State on the first day of trial, well after
 the jury drawing and discovery deadline.  156 Vt. at 344, 592 A.2d  at 879.
 The exclusion order was valid because the witness, the defendant's father,
 could have been disclosed earlier, and because the court had a reasonable
 belief that the proposed testimony would be cumulative and repetitious.  Id.
 at 344-45, 592 A.2d  at 879.
      In this case, defendant concedes that notice of Dr. Stein as a witness
 was late, but argues that the State had adequate opportunity to depose Stein
 by telephone prior to his testifying at the trial.  The record does not
 disclose why defense counsel did not discover the Stein incident sooner than
 one week before trial; in that respect this situation differs from Hugo, in
 which the late notice was attributed to the fault of defense counsel.  The
 result in Hugo, however, also turned on the fact that the proposed witness'
 testimony would not have substantially assisted the jury.  Analogously, here
 the court noted that the Stein incident was a collateral matter, and that
 putting Stein himself on the stand would confuse the issues and would not
 assist the jury in its deliberations.  More importantly, the court allowed
 the defense to introduce the substance of Stein's proposed testimony by
 ruling that defendant could testify to the alleged incident and how he
 became aware of it.  Therefore, the exclusion of Stein himself as a witness
 was a reasonable exercise of discretion.
      Defendant also raises for the first time on appeal the argument that
 the testimony should have been admitted under V.R.E. 404(b), as evidence
 that Bullock had the motive, opportunity and plan to kill defendant.

 

 However, "[i]f a specific ground for admission is claimed in the offer of
 proof but is not applicable, and the trial court excludes the evidence, the
 proponent cannot complain on appeal if there was another ground for
 admission."  Dean v. Arena, 141 Vt. 647, 650, 450 A.2d 1143, 1145 (1982).
 We therefore do not consider this claim.
                                     II.
      Defendant next complains that the trial court should not have excluded
 as hearsay a statement that defendant made shortly after his final
 confrontation with Bullock.  After shooting Bullock, defendant went to the
 back of his truck and sat on the tailgate.  Debra Bullock witnessed the
 incident from at least 300 feet up the road, ran to the scene, and
 approached defendant, who allegedly told her, "I'm sorry, I didn't want to
 do that."  At trial, defense counsel attempted to elicit this statement from
 Debra as an exception to the hearsay rule for:  (1) a present sense
 impression under V.R.E. 803(1); (2) an excited utterance under Rule 803(2);
 and (3) a statement of then-existing mental condition under  Rule 803(3).
 The court excluded the statement.
      The trial court determines the admissibility of evidence, including
 preliminary questions of whether statements fall within exceptions to the
 hearsay rule.  See V.R.E. 104(a).  We will disturb the trial court's
 discretionary ruling only if that discretion has been abused.  State v.
 Ayers, 148 Vt. 421, 424, 535 A.2d 330, 332 (1987).  The ruling will stand if
 it has a reasonable basis.  State v. Goodrich, 151 Vt. 367, 375, 564 A.2d 1346, 1351 (1989).
      For a hearsay statement to qualify as a present sense impression, the
 statement must describe or explain "an event or condition made while the
 declarant was perceiving the event or condition, or immediately thereafter."

 

 V.R.E. 803(1).  In this case it is undisputed that defendant's statement was
 not made while he was perceiving the event.  Testimony shows that Debra
 Bullock had to run several hundred feet to reach defendant at his truck, a
 significant time lapse between the shooting and the statement.  That alone
 provided the trial court with a reasonable basis to conclude that the
 statement was not made immediately after the event perceived.  The trial
 court did not abuse its discretion by ruling the statement inadmissible as a
 present sense impression.
      Although it is a closer question, we also believe the court could
 properly hold that the statement was not an excited utterance.  This
 exception requires that the statement relate "to a startling event or
 condition made while the declarant was under the stress of excitement caused
 by the event or condition."  V.R.E. 803(2).  In contrast to the emphasis on
 contemporaneousness for present sense impressions, the prime consideration
 for the excited utterance exception is the declarant's condition:  the
 statement must be uttered while the effect of the exciting event forestalls
 the possibility of reflection or fabrication.  See State v. Shaw, 149 Vt.
 275, 281, 542 A.2d 1106, 1109 (1987).
      Since admissibility under Rule 803(2) hinges on the condition of the
 declarant, the proponent of the statement must provide sufficient evidence
 for a preliminary determination that the declarant was still gripped by the
 exciting event.  United States v. McLennan, 563 F.2d 943, 948 (7th Cir.
 1977), cert. denied, 435 U.S. 969 (1978).  For example, in State v. Ayers
 evidence that the declarant was "visibly shaken . . . extremely nervous,
 upset . . . bordering on tears off and on" amply supported a finding that
 the declarant was under the stress of excitement.  148 Vt. at 423, 535 A.2d 
 at 331.  In contrast, in State v. Roy, 140 Vt. 219, 225, 436 A.2d 1090, 1092

 

 (1981), this Court found no evidence that a child declarant was "stunned or
 in a state of emotional upheaval" during a conversation with police, which
 prevented the child's statements from qualifying as excited utterances.  In
 interpretations of the corresponding Federal Rule of Evidence 803(2),
 federal courts have also required sufficient foundation evidence for the
 preliminary determination that the declarant was under the influence of the
 exciting event.  See, e.g., United States v. Bailey, 834 F.2d 218, 228 (1st
 Cir. 1987) (testimony that declarant nervous or distraught, with reasonable
 basis for continuing emotional upset, often enough); McLaughlin v. Vinzant,
 522 F.2d 448, 449-50 (1st Cir.) (statement admissible based on testimony
 that declarant appeared "shaken up," "nervous," or "hysterical"), cert.
 denied, 473 U.S. 1037 (1975).
      The trial court's ruling in this case was based on the lapse of time
 between the event and the utterance, a lack of foundation establishing that
 defendant was under the stress of excitement, and a finding that the content
 of the statement showed contemplation.  Defense counsel attempted to
 introduce the statement through the testimony of Debra Bullock, who made no
 observations about defendant's demeanor while on the stand.  A witness on
 the scene almost immediately after Debra Bullock's arrival described
 defendant as calm and rational as he sat on the tailgate of his truck
 sipping iced tea.  Though defense counsel later attempted to establish that
 defendant's apparently calm demeanor could be explained as post-traumatic
 stress syndrome resulting from combat experience in Vietnam, defendant
 himself testified that he was not suffering from the condition at the time
 of the shooting or thereafter.  Based on the lack of foundation evidence,
 the trial court could reasonably have found that defendant was not under
 sufficient stress in the moments after the shooting to quell his reflective

 

 faculties.  The court did not abuse its discretion in holding that the
 proffered statement was not an excited utterance.
      Finally, the timing and content of the statement reasonably precluded
 its admission as a statement of a then-existing mental condition under
 V.R.E. 803(3).  This exception applies to a "statement of the declarant's
 then-existing state of mind, . . . but not including a statement of memory
 or belief to prove the fact remembered or believed."  V.R.E. 803(3).  The
 proponent must show that:  (1) the statement was contemporaneous with the
 mental state to be proved, (2) the declarant had no time to fabricate or
 misrepresent thoughts, and (3) the state of mind is relevant to an issue in
 the case.  United States v. Carter, 910 F.2d 1524, 1530 (7th Cir. 1990),
 cert. denied, 111 S. Ct. 1628 (1991).
      There is no dispute that the question of intent is relevant to the
 charge of murder.  The court found, however, that the content of the
 statement and the lapse of time after the shooting too strongly suggested
 fabrication.  In cases in which this Court has held a statement of intent
 admissible under the precursor to V.R.E. 803(3), the statements preceded the
 event.  See State v. Ryder, 80 Vt. 422, 424-26, 68 A. 652, 653-54 (1908);
 State v. Howard, 32 Vt. 380, 383, 404 (1859), overruled on other grounds,
 State v. Briggs, 152 Vt. 531, 539 n.3, 568 A.2d 779, 783 n.3 (1989); see
 also State v. Cato, 574 A.2d 240, 242 (Conn. Ct. App.) ("An out-of-court
 statement made after the completion of a criminal act is not admissible
 under the state of mind exception as to the intent or motive underlying that
 completed act."), cert. denied, 576 A.2d 547 (Conn. 1990).  We agree that
 the timing and content of the statement "I'm sorry, I didn't want to do
 that" does not satisfy the criteria for admission under the Rule 803(3)
 present-state-of- mind exception.  There was no abuse of discretion that

 

 would permit us to disturb the trial court's decision.  The statement was
 properly excluded.
                                    III.
      Defendant's third claim of error arises from a ruling that precluded
 an expert witness from expressing an opinion that Debra Bullock suffered
 from battered woman syndrome.  On cross-examination, the State had
 attempted to raise doubt that Debra was in a life-threatening situation on
 the afternoon of the shooting by questioning her failure to escape from her
 husband, despite opportunities to seek help during the several stops she and
 Bullock made.  The court held that the expert's description of the syndrome
 would permissibly enhance Debra Bullock's credibility and ensure that the
 jury was not misled by the prosecution's attempted impeachment.  Defendant
 contends that the limitation of Dr. Searles' testimony unfairly prevented
 him from fully rehabilitating Debra's credibility.
      Under V.R.E. 702, expert testimony may be permitted if "specialized
 knowledge will assist the trier of fact to understand the evidence or to
 determine a fact in issue."  In essence, the trial court held that a
 qualified expert's description of battered woman syndrome would suffice to
 help the jury understand Debra Bullock's actions, and hence bolster her
 credibility.  Had Dr. Searles been permitted to testify that Debra suffered
 from the syndrome, Debra's credibility might have been enhanced, but at the
 risk of distracting the jury from the purpose of the evidence of Bullock's
 character -- establishing defendant's state of mind and whether Bullock was
 the first aggressor.
      The fact that expert testimony "may" be admitted under Rule 702 leaves
 the question of admissibility within the discretion of the court.  The
 record shows that Dr. Searles fully explained the nature and symptoms of

 

 the syndrome, providing the jury with a basis for a reasonable inference as
 to why Debra failed to seek help despite her protestations of extreme danger
 during the ride with Bullock.  The defense could and did argue that Debra
 suffered from the syndrome.  Though Debra's credibility might have been
 further enhanced by the opinion testimony, the court considered it too
 collateral to the relevant issues.  In effect, the court's ruling struck a
 balance between providing the defense with rehabilitation testimony and
 forestalling inflammatory evidence of the victim's abusive conduct not
 relevant to defendant's self-defense.  Since the basis for limiting the
 expert testimony was reasonable, there was no abuse of discretion.
                                     IV.
      Defendant next levels the serious allegation that prosecutorial
 misconduct deprived him of a fair trial and warrants reversal of his
 conviction.  Defendant concedes that counsel did not object to specific
 instances in the "pattern of ethical misconduct," but argues that
 collectively and cumulatively they constitute reversible plain error.
 Specifically, the alleged misconduct was manifested:  (1) in disruption of
 the flow of evidence in defendant's case in chief, and  (2) in improper
 comment in the State's closing argument.  To assess the validity of a claim
 of overall misconduct, we examine each specific claim, bearing in mind that
 "a prosecutor is the servant of the law and has a constitutional as well as
 an ethical responsibility to respect the accused's right to a fair trial."
 State v. Goshea, 137 Vt. 69, 76, 398 A.2d 289, 293-94 (1979).
       Defendant first argues that the prosecution engaged in a pattern of
 aggressive, continuous, "machine-gun" objections and interruptions, which
 stymied his presentation of evidence of self-defense.  Because defendant
 raises these issues for the first time on appeal, we review them only if

 

 they constitute plain error, V.R.Cr.P. 52(b), the "rare and extraordinary
 case" of obvious error "so grave and serious as to strike at the very heart
 of a defendant's constitutional rights or adversely to affect the fair
 administration of justice," State v. Ramsay, 146 Vt. 70, 75, 499 A.2d 15,
 18 (1985).
      We find no basis for a claim of prosecutorial misconduct during the
 evidentiary portion of the trial.  Though the State made a large number of
 objections during the defendant's presentation of evidence, at least half of
 which were sustained, nothing suggests that the objections were groundless,
 in bad faith, or frivolous.  The State is authorized and obliged to
 prosecute earnestly and vigorously through legitimate means and methods.
 State v. Forte, 154 Vt. 46, 50, 572 A.2d 941, 943 (1990).  This includes
 interposing seasonable, meritorious objections.  Garrett v. State, 105 So. 2d 541, 546 (Ala. 1958); see also People v. Abernathy, 217 N.E.2d 300, 302
 (Ill. Ct. App. 1966); cf. State v. Grayson, 668 S.W.2d 153, 157 (Mo. Ct.
 App. 1984) (defense counsel "has a right, indeed a duty to object to
 impermissible testimony or argument in protecting [the] client's right to a
 fair trial").  Most of the objections went to the form of questions, and to
 questions and answers by defense counsel that exceeded the permissible scope
 of inquiry established by evidentiary rules or rulings on pretrial motions.
 The State's objections had merit and did not unfairly hinder defendant from
 presenting evidence to the jury.
      Defendant also highlights an incident during the testimony of Debra
 Bullock as evidence of prosecutorial misconduct.  At one point in the
 direct examination, as the witness recounted her attempt to escape from
 Bullock's car just before his confrontation with defendant, the State
 interrupted to request towels to absorb a spill from a leaking cup.  Neither

 

 the court nor defense counsel called attention to the incident, and the
 witness continued with her testimony immediately.  Though the prosecution
 might have taken care of the problem without drawing the court's attention
 to it, this appears to have been a minor interruption.  In sum, we find that
 the objections and the "leaking cup" incident do not qualify as grave error
 that infringed defendant's constitutional rights or adversely affected the
 fair administration of justice.  There was no prosecutorial misconduct
 amounting to plain error in the evidentiary portion of trial.
      The second alleged incident of prosecutorial misconduct, occurred
 during the State's rebuttal in closing argument.  As a rule, decisions
 regarding the propriety of closing argument fall within the discretion of
 the trial court.  State v. Francis, 151 Vt. 296, 300, 561 A.2d 392, 395
 (1989) (mem.).  The trial court, "which has observed the entire trial and
 the demeanor of the attorneys, can better gauge the impact of the allegedly
 prejudicial language than an appellate court reviewing a cold record."
 State v. Cohen, 157 Vt. 654, 655, 599 A.2d 330, 331 (1991) (mem.).
      Defendant cites three specific instances in the State's rebuttal, in
 which counsel allegedly injected personal opinion, argued contrary to
 personal knowledge of facts, and commented on defendant's failure to produce
 evidence.  In the first instance, the State argued:
         I don't know what kind of person Ken Bullock is other
         than what has been told me during the course of this
         case.
         . . . .
         . . .  And I'm not suggesting that Ken Bullock never
         inflicted any physical violence on anyone in his
         lifetime.  I'm not suggesting that.  I don't know to
         what extent he did or he didn't.
 Defendant contends that this statement was an improper interjection of
 personal opinion, contrary to the State's knowledge of Bullock's violent
 character as evidenced by a final relief-from-abuse order against Bullock

 

 and pending alleged violations of that order.  At trial the defense objected
 to the statement, and the objection was sustained with the specific
 instruction that the jury disregard personal references.  Defendant did not
 object to the cautionary instruction or request any further relief.  In the
 final charge to the jury immediately following closing arguments, the court
 explicitly warned the jury not to consider the arguments of counsel as
 evidence, and not to rely on the attorneys' recollection of evidence in
 their arguments.
      We addressed a similar situation in Deyo v. Kinley, in which the
 defendant objected to an argument on damages in the plaintiff's rebuttal
 closing argument, which the defendant contended was completely without an
 evidentiary foundation.  152 Vt. 196, 201, 565 A.2d 1286, 1289 (1989).  The
 trial court sustained the objection, and ruled that any error would be cured
 by its final charge to the jury not to consider the arguments of counsel as
 evidence.  Jury instruction followed immediately after closing arguments,
 and the defendant made no further objection.  We concluded that the
 instruction sufficed to cure any error that might have been made in the
 plaintiff's closing argument.  Id. at 203, 565 A.2d 1291.  Here, as in Deyo,
 the court's instruction immediately following the objection and the final
 instruction to the jury sufficiently countered any error in the argument.
      The questionable statement here is not the type of statement made in
 State v. Goshea or State v. Lapham, 135 Vt. 393, 377 A.2d 249 (1977).  In
 Goshea, the prosecution's comments, directly contrary to exculpatory
 evidence that the State had withheld from the defendant, warranted reversal.
 Goshea, 137 Vt. at 76, 398 A.2d  at 294.  In Lapham, this Court reversed
 because of the undue prejudice that resulted from the prosecution's
 characterization of the defendant's insanity defense as "a desperate effort

 

 to escape justice," and the trial court's failure to strike the comment and
 admonish the jury to disregard the comment.  Lapham, 135 Vt. at 406-08 &
 n.2, 377 A.2d  at 256-68 & n.2.  In light of the fact that substantial
 evidence of Bullock's violent character was admitted into evidence, and that
 the jury was specifically instructed to disregard personal references, we
 believe that this statement about Bullock's character, though inappropriate,
 was not unfairly prejudicial.  It does not rise to the level of reversible
 error.
      Defendant's remaining two allegations of error in the State's closing
 argument were not raised at trial, so we review them only for plain error.
 State v. Cohen, 157 Vt. at 655, 599 A.2d. at 331.  "[P]lain error will be
 found only if the argument is so egregious that there is no room for doubt
 as to its prejudicial effect and this Court is convinced that affirmance
 would result in a miscarriage of justice."  Id.
      Defendant first asserts that the prosecution misled the jury by
 suggesting the inference that Bullock left his home because of his wife's
 infidelity with defendant, not because he was ordered to leave as part of
 the relief-from-abuse order which the defense was not allowed to offer as
 evidence.  The prosecution's statement was an inappropriate attempt to
 introduce an unwarranted inference, but was not so egregious as to deprive
 defendant of a fair trial.  In Woodmansee v. Stoneman, 133 Vt. 449, 458, 344 A.2d 26, 31 (1975), testimony of the defendant's expert witness, a
 psychiatrist, had been limited to a single examination of the state's main
 witness, even though the psychiatrist was generally familiar with her
 psychological records.  The State took advantage of this in closing to
 argue, over objection, that the expert's diagnosis was based on a single
 meeting with the witness, and hence was not credible.  There we held that

 

 the argument could not be permitted "in the face of facts known to all
 counsel and the court," and that the general warning against taking the
 arguments of counsel as evidence did not cure the error.  Id.
      In this case, the State strongly implied that Bullock was driven from
 his home by his wife's infidelities, contrary to the fact known both to
 court and counsel that he left pursuant to a restraining order.  As in
 Woodmansee, the court issued only a general instruction to the jury not to
 consider closing arguments as evidence.  The statement was prejudicial to
 defendant, especially when taken in context of the prosecution's theory of a
 lovers' plot to eliminate Bullock.  But unlike Woodmansee, there was
 evidence before the jury contrary to the State's argument, that Bullock was
 ejected from his home because of his own actions rather than his wife's
 infidelity.  There was evidence of the restraining order, and Debra Bullock
 and her children testified to incidents of abuse by Bullock.  Goshea, which
 also involved prosecutorial argument contrary to known fact, is also
 distinguishable because in that case the prosecutor wrongly kept the
 contradictory evidence from the jury.  See Goshea, 137 Vt. at 76, 398 A.2d 
 at 294 (argument "an open admission by the prosecutor of the exculpatory
 character of the evidence").  Though prejudicial and of questionable
 propriety, the statement in this case was not so egregious as to create a
 miscarriage of justice and deprive defendant of a fair trial.
      Finally, defendant alleges that the State took unfair advantage of the
 pretrial ruling that precluded Dr. Searles from testifying to her opinion
 that Debra Bullock suffered from battered woman syndrome.  Again, in the
 State's rebuttal closing argument, the prosecutor said to the jury:
            You never heard [that Debra Bullock was physically
         assaulted] . . . except from Debra Bullock's son and
         daughter.  And no one came in here and said well, she
         told me that she got beat up every day.  Nobody said

 

         that.  There's no evidence of any medical attention
         being sought by the victim of this terrible brutality
         that's been portrayed to you.
 Defendant implicitly acknowledges the State's proffered basis for this
 statement -- that no witness outside the family testified to having observed
 evidence of the alleged physical abuse at the time it was inflicted.
 Defendant asserts, however, that this absence of corroboration is consistent
 with battered woman syndrome, and that the jury could not appreciate the
 lack of corroboration because the expert was precluded from expressing the
 opinion that Debra Bullock suffered from the condition.  Therefore, the
 State's attempt to use the absence of corroboration to impugn the
 credibility of defendant's witnesses was unfairly prejudicial.
      We fail to see any error in this part of the prosecution's argument.
 As noted above, defendant's expert testimony was limited only with respect
 to offering a diagnosis, but defendant was free to argue that Debra Bullock
 was a battered woman, and the jury had sufficient evidence to make that
 inference.  The defense also could have presented evidence that the absence
 of contemporary corroboration for acts of abuse was consistent with this
 condition.  In sum, the prosecution's argument of a lack of contemporaneous
 corroboration of acts of physical abuse by Bullock was not unfairly
 prejudicial, and not plain error.
      We conclude, then, that none of the alleged incidents of prosecutorial
 misconduct, considered alone, qualifies as plain error warranting reversal.
 Also, the record does not reveal that the prosecution had an overriding
 "studied purpose" to arouse unfair prejudice.  State v. Ramsay, 146 Vt. at
 76, 499 A.2d  at 19.  Though we disapprove of portions of the State's
 rebuttal closing argument, their combined effect does not amount to an
 egregious miscarriage of justice or denial of a fair trial.  See State v.

 

 Francis, 157 Vt. at 655, 599 A.2d  at 331 (disapproval of parts of
 prosecution closing argument does not necessarily require reversal).
                                     V.
      Defendant next alleges that the court should have instructed the jury
 specifically that, in assessing the claim of self-defense, it could consider
 evidence of Bullock's aggressive character in determining whether Bullock
 actually was the first aggressor.  Defendant contended that because the
 specific aggressive acts were admitted into evidence pursuant to V.R.E.
 405(b), the court was required to charge that they could be considered on
 the issue of who was first aggressor, and not just to determine whether
 defendant reasonably believed that the victim threatened him with mortal
 peril.  Defendant also argued that because this character evidence was
 permissible under V.R.E. 404(a)(2) to show that Bullock acted in conformity
 with that character on a particular occasion, the charge should reflect
 that.
              The court declined defendant's request, but charged:
            You may take into consideration what the defendant
         knew about the victim at the time of the killing.  You
         may consider such factors as what their relationship or
         interaction had been, any aggressive or hostile conduct
         if any by the victim, and such other factors as you
         consider relevant.

            In considering who initiated the confrontation, you
         may consider all the surrounding facts and circumstances
         as . . . presented by the evidence.

                                 . . . .

            The defendant as aggressor.  The law of self-defense
         does not imply the right of attack in the first
         instance, nor does it permit an action to be done in
         retaliation or for revenge.  If you find that the State
         has proven beyond a reasonable doubt that the defendant
         was the aggressor in the confrontation, then the
         defendant's actions in shooting Kenneth Bullock were not
         done in self-defense or defense of another.  When
         determining the issue of who initiated the confronta-

 

         tion, you can consider all the surrounding facts and
         circumstances.

      In reviewing the sufficiency of jury instructions, we consider them as
 a whole and not piecemeal.  State v. Davis, 157 Vt. 506, 511, 601 A.2d 1381,
 1383 (1991).  The instructions must accurately state the law on every theory
 fairly put forward by the evidence.  State v. Pelican, __ Vt. __, __, 632 A.2d 24, 27 (1993); see State v. Percy, 158 Vt. 410, 419, 612 A.2d 1119,
 1125 (1992).  Within those parameters, the trial court may exercise its
 discretion in the wording of the jury charge; a defendant is not entitled to
 have specific language included.  Pelican, __ Vt. at __, 632 A.2d  at 27;
 Percy, 158 Vt. at 419, 612 A.2d  at 1125.
      In light of the above standard, the trial court did not abuse its
 discretion in denying defendant's proffered charge.  The court correctly
 instructed the jury that the defense of self-defense requires that the
 victim be the actual first aggressor.  The judge explicitly stated at two
 separate points in the charge that the jury could consider all surrounding
 facts and circumstances as presented by the evidence in determining who
 initiated the confrontation.  Nothing in the charge limited the jury's use
 of any evidence of the victim's character, so they were at liberty to
 consider that evidence to determine who was the aggressor.  Therefore, we
 find no error in the court's refusal to include defendant's requested
 instruction.

                                     VI.
      Defendant's final claim of error is that the trial court abused its
 discretion by imposing the presumptive sentence for second-degree murder of
 twenty years to life.  Under 13 V.S.A. { 2303(b):

 

            The punishment for murder in the second degree shall
         be imprisonment for life and for a minimum term of 20
         years unless the court finds that there are aggravating
         or mitigating factors which justify a different minimum
         term. . . .  If the court finds that the mitigating
         factors outweigh any aggravating factors, the minimum
         term may be set at less than 20 years but not less than
         10 years.
 Thus, the statute grants discretion to reduce the presumptive sentence only
 if mitigating factors outweigh aggravating factors.  Moreover, the statute
 mandates that the trial court "shall . . . enter specific written findings
 concerning aggravating and mitigating factors," id. { 2303(c), according to
      the list of factors supplied in {{ 2303(d), (e). (FN2)

 

      At the sentencing hearing, the court specifically stated that it would
 rule on aggravating and mitigating factors in writing, but that it would
 first share its decisions "in a general way, to be followed more
 specifically by findings."  The trial court considered each of the statutory
 mitigating and aggravating factors in order.  After reviewing the
 aggravating factors, the court said that it had not been persuaded that
 "there are any aggravating factors that the Court is going to include in its
 calculations of determining variance from the minimum sentence."  The court
 then proceeded through the list of mitigating factors.
      The record is unclear as to the court's decision on the first
 mitigating factor, the lack of a significant history of prior criminal
 activity.  The court agreed that defendant's heart condition constituted a
 physical disability, but declined to find that this significantly reduced
 his culpability.  The court specifically acknowledged the effect of post-
 traumatic stress syndrome, but rejected the claim that defendant acted under
 duress, coercion, threat or compulsion insufficient to constitute a defense
 which significantly affected his conduct.  The court also clearly stated
 that the victim did not consent to or participate in the conduct leading to
 his death.  The remaining offers of mitigating factors were considered and
 rejected.
      The written findings on mitigating and aggravating factors contained
 the following:
              Upon the evidence at the trial and the sentencing
           hearing the Court finds the following mitigating and
           aggravating factors:

             1.  The Defendant placed himself in the situation
           where the actual outcome was likely to occur.

 

             2.  The Defendant had no significant criminal record
           or activity prior to this offense.
 Defendant contends that the court improperly considered the first of these
 two findings as an aggravating factor under 13 V.S.A. { 2303(d)(8), which
 includes "[a]ny . . . factor that the state offers in support of a greater
 minimum sentence."  Defendant asserts that any evidence that he acted to
 produce "a deadly confrontation" was offered at trial only to rebut the
 theory of self-defense, not to increase his sentence.  The record shows
 otherwise.  The State specifically adopted the list of aggravating factors
 set forth in the presentence investigation report, including the disputed
 factor.  The State also argued in the sentencing hearing that the total of
 defendant's activity would result in "a deadly confrontation."  This
 evidence was not offered merely to rebut defendant's self-defense claim, and
 therefore the finding was properly used as an aggravating factor under the
 { 2303(d)(8) catchall.
      Defendant also complains that the trial court erred by not making
 findings on the recommended mitigating factors listed in 13 V.S.A.
 { 2303(e):
            (2)  The defendant was suffering from a mental or
         physical disability or condition that significantly
         reduced his . . . culpability for the murder.

            (5)  The defendant acted under duress, coercion,
         threat or compulsion insufficient to constitute a
         defense but which significantly affected his . . .
         conduct.

            (6)  The victim was a participant in the defendant's
         conduct or consented to it.
 The record clearly shows, however, that the court considered each of
 defendant's proposed mitigating factors in the course of the sentencing
 hearing.  Section 2303(b) mandates the presumptive sentence "unless the

 

 court finds there are aggravating or mitigating factors."  13 V.S.A.
 { 2303(b).  In this context, findings represent conclusions, not a
 generalized discussion of factors proposed by either the defendant or the
 State.  Moreover, the record shows that ample evidence existed to support
 the findings the court made.  We hold that none of the findings was clearly
 erroneous.  In light of the fact that the aggravating and mitigating
 factors balanced, the trial court could not depart from the mandatory
 sentence imposed in { 2303(b) of twenty years to life.  See id.
      We note, however, that the trial court did not clearly categorize its
 written findings as "mitigating" or "aggravating."  Considering the
 importance of these findings, it would be better that aggravating and
 mitigating factors be clearly denominated.
      Affirmed.

                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



------------------------------------------------------------------------------
                              Footnotes

FN1.    In relevant part, V.R.E. 404(a)(2) provides that:  "Evidence of a
person's character or a trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a particular
occasion, except:  . . . [e]vidence of a pertinent trait of character of the
victim of the crime offered by an accused . . . ."


FN2.    13 V.S.A. { 2303(d) provides:
        Aggravating factors shall include the following:
          (1)  The murder was committed while the defendant was in
     custody under sentence of imprisonment.
          (2)  The defendant was previously convicted of a felony
     involving the use of violence to a person.
          (3)  The murder was committed while the defendant was engaged
     in the commission of, or in an attempt to commit, or in immediate
     flight after committing a felony.
          (4)  The victim of the murder was particularly weak,
     vulnerable or helpless.
          (5)  The murder was particularly severe, brutal or cruel.
          (6)  The murder involved multiple victims.
          (7)  The murder was random, predatory or arbitrary in nature.
          (8)  Any other factor that the state offers in support of a
     greater minimum sentence.
13 V.S.A. { 2303(e) provides:
        Mitigating factors shall include the following:
          (1)  The defendant had no significant history of prior
     criminal activity before sentencing.
          (2)  The defendant was suffering from a mental or physical
     disability or condition that significantly reduced his or her
     culpability for the murder.
          (3)  The defendant was an accomplice in the murder committed
     by another person and his or her participation was relatively
     minor.
          (4)  The defendant, because of youth or old age, lacked
     substantial judgment in committing the murder.
          (5)  The defendant acted under duress, coercion, threat or
     compulsion insufficient to constitute a defense but which
     significantly affected his or her conduct.
          (6)  The victim was a participant in the defendant's conduct
     or consented to it.
          (7)  Any other factor that the defendant offers in support of
     a lesser minimum sentence.