State v. Brooks

Annotate this Case
STATE_V_BROOKS.93-010; 163 Vt 245; 658 A.2d 22

[Filed 27-Jan-1995]

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. 93-010


State of Vermont                                  Supreme Court

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

Stephen C. Brooks                                 September Term, 1994


Edward J. Cashman, J.

Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
 Deputy State's Attorney, Burlington, for plaintiff-appellee 

Bonnie Barnes and William K. Sessions III of Sessions, Keiner, Dumont &
 Barnes, Middlebury, for defendant-appellant 


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


     ALLEN, C.J.   Defendant appeals his conviction of involuntary
manslaughter following a jury trial.  We affirm. 

     In May 1986, defendant purchased a home in Burlington that was equipped
with a driveway heater.  Hot water, heated by gas in the unit's boiler,
flowed  through a system of pipes beneath the driveway to melt snow and ice. 
The unit was located in the attached garage and could be turned on by a
switch.  Exhaust fumes from the system were supposed to exit through a vent
located on the backside of the garage. 

     On November 27, 1987, defendant turned on the driveway heater before
running an errand.  While he was gone, another occupant, Jill McDermott, and
her infant became ill from noxious fumes that had emanated from the garage. 
When defendant returned home, McDermott asked him to take her and the baby to
the hospital.  Defendant took them to the emergency room where they were
examined and released; no diagnosis was made. 

 

     Defendant thought the fumes were caused by a plumbing problem and called
C & L Plumbing and Heating (C & L).  C & L sent an employee, Ben Linden, to
inspect the heater. Linden determined that a dislodged flap in the
termination kit was preventing proper exhaust. He explained the malfunction
to defendant and told him that repairs should be made and safety features
added.  Linden then called Vermont Gas Systems (VGS) and met with one of its
employees to examine the system.  After doing some additional work on the
unit, both servicemen decided the gas should remain off until repairs were
made.  The VGS employee told McDermott the system was not safe to operate and
that she was lucky to be alive, "because it was carbon monoxide."   McDermott
relayed these comments to defendant. 

     That night, the owner of C & L called defendant and told him that the
heater had been improperly installed and VGS would call about necessary
repairs.  A VGS supervisor also called and explained the dangers of the
condition and agreed that it should be repaired.  Approximately one month
after the accident, Linden returned to defendant's home to service other
appliances. When Linden asked defendant about the heater, he admitted that
nothing had been done.  Linden told defendant he was playing "Russian
roulette," to which defendant remarked that "he would have to call the gas
company." 

     In May 1988, defendant hired a real estate agent to sell his home. 
Defendant did not mention the heater's history to the agent.  Instead,
defendant instructed the agent to turn the heater on, then off, when
demonstrating it to prospective buyers.  The heater was a highlighted feature
in agent's marketing materials.  In August 1988, the agent recommended Karl
Sklar, a part-time carpenter, to replace some rotten siding.  While Sklar was
at defendant's home, defendant told Sklar that the heater had problems and
asked Sklar if he would work on the heater.  Sklar declined because he lacked
experience with such systems. 

     In July 1988, the agent showed the house to Linda Cifarelli and her
parents, the von Albrechts, who were helping their daughter and son-in-law
purchase a home.  While touring the home, the agent explained and
demonstrated the driveway heating system by turning it on for 

 

approximately five minutes.  During their second showing, defendant, who was
present to answer questions, explained and demonstrated the driveway heater
again, but did not mention its prior problem or faulty condition.  The von
Albrechts made an offer to purchase the house which defendant accepted.  The
buyers then arranged a professional home inspection.  During the inspection,
defendant demonstrated the heater, but did not explain how it worked or
mention its history. 

     At the September closing, defendant insisted that the Cifarellis return
to the house with him for a more detailed showing because "he knew things
[the inspector] wouldn't know." Defendant showed Linda Cifarelli and her
parents the central vacuum system, the drainage system, and the driveway
heater.  When showing the heater, he told them it was not necessary to run it
for more than two hours. 

     On the evening of December 9, 1988, Linda Cifarelli and her husband,
John, turned on the driveway heater because it was snowing.  They put their
two young daughters to bed upstairs and followed shortly after.  A house
guest, Andrew Csermak, stayed awake to watch television. After a while,
Csermak became dizzy and nauseous, and eventually vomited.  Csermak cracked a
window and fell asleep on the downstairs couch.  When Csermak awoke at noon,
he was concerned because the Cifarellis were not yet awake.  He went upstairs
and discovered that only the infant daughter was still breathing.  Csermak
called 911. 

     Upon arrival, the police and firemen discovered the bodies of John and
Linda Cifarelli and their four year old daughter.  The police also found the
garage door dripping with condensation and the driveway heater running.  The
infant and Csermak were taken to the hospital and diagnosed with carbon
monoxide poisoning.  Autopsies revealed that Linda and John Cifarelli and
their daughter died of carbon monoxide poisoning.  Defendant was charged with
three counts of involuntary manslaughter by reckless endangerment and
convicted by a jury in October 1992. 

     Defendant raises several issues on appeal.  First, he challenges as
erroneous the jury 

 

instructions pertaining to (1) the mens rea of recklessness, (2) a seller's
legal duty to disclose material defects about a house, and (3) the defense of
intervening causation.  Second, he claims that his motion for acquittal was
improperly denied because there was insufficient evidence to prove the
essential elements of recklessness and the existence of his legal duty to
act.  Third, defendant contends that Vermont's manslaughter statute is
unconstitutionally vague as applied to the facts of this case. Finally, he
argues that the court abused its discretion in denying his unopposed motion
to sequester the jury. 

                         I. Jury Instructions

     Defendant's objections to the three jury instructions were not properly
preserved following the charge and are only reviewable under a plain error
standard.  State v. Percy,158 Vt. 410, 418, 612 A.2d 1119, 1125 (1992).  Jury
instructions should be viewed in their entirety and must be well balanced and
fair.  State v. Chambers, 144 Vt. 377, 382, 477 A.2d 974, 978 (1984).  Error
will be assigned only when the entire charge undermines our confidence in the
verdict, and only in extraordinary cases will we find plain error.  State v.
Johnson, 158 Vt. 508, 513-14, 615 A.2d 132, 135 (1992). 

     Defendant first contends that the court's definition of reckless intent
was erroneous. Defendant was charged with involuntary manslaughter by
reckless endangerment.  13 V.S.A.  2304; State v. Stanislaw, 153 Vt. 517,
522, 573 A.2d 286, 289 (1990) (involuntary manslaughter is a killing caused
by an unlawful act, but not accompanied by an intent to take life).  Because
the underlying unlawful act charged was reckless endangerment, 13 V.S.A. 
1025, defendant's conviction could only be sustained upon finding reckless
intent.  Stanislaw, 153 Vt. at 525, 573 A.2d  at 291 (mens rea of recklessness
or criminal negligence may sustain conviction for involuntary manslaughter). 
Defendant argues that the instruction defining recklessness was flawed
because it incorporated both the criminal negligence and recklessness
standards but did not distinguish between the two.  Defendant maintains that
while recklessness requires an actual awareness of the risk and of the
resulting harm, criminal negligence requires 

 

a less stringent showing that the actor should have known of the risk and
harm.  According to defendant, the failure to distinguish between the two
levels of intent amounted to plain error, because the jury could have
convicted him if it found only that he should have known either that the
heater was not repaired, or that the heater posed a risk. 

     We have endorsed the Model Penal Code's definition of recklessness which
explains: 

     A person acts recklessly with respect to a material element of an
     offense when he consciously disregards a substantial and
     unjustifiable risk that the material element exists or will result
     from his conduct.  The risk must be of such a nature and degree
     that, considering the nature and purpose for the actor's conduct
     and the circumstances known to him, its disregard involves a gross
     deviation from the standard of conduct that a law-abiding person
     would observe in the actor's situation.

State v. O'Connell, 149 Vt. 114, 115 n.1, 540 A.2d 1030, ____ n.1 (1987)
(quoting Model Penal Code  2.02(c) (defining recklessly)) (emphasis added).
 In contrast, criminal negligence occurs when the actor should be aware that
a substantial and unjustifiable risk exists or will result from his conduct. 
Stanislaw, 153 Vt. at 525, 573 A.2d  at 291.  Disregarding the risk amounts to
a gross deviation from the standard of care that a reasonable person would
observe in the actor's situation.  Id. 

     Contrary to defendant's suggestion, both recklessness and criminal
negligence require an objective view of the risk; the difference is one of
degree.  Compare Model Penal Code  2.02(2)(c) (defining recklessness) with
id.  2.02(2)(d) (defining negligence); see also 1 W. Lafave & A. Scott,
Substantive Criminal Law  3.7, at 329-36 (1986).  The more critical
distinction between recklessness and criminal negligence is the actor's
subjective awareness of the risk.  Recklessness requires a conscious
disregard of the risk.  O'Connell, 149 Vt. at 114, 115 n.1, 540 A.2d  at 1031
n.1.  In contrast, criminal negligence results when an actor is unaware of
the risk which the actor should have perceived.  Stanislaw, 153 Vt. at 525,
573 A.2d  at 291. 

     The court properly instructed the jury to objectively assess the risk
and to determine 

 

whether defendant consciously disregarded that risk.  For further
clarification, it referred the jury to the reckless endangerment instruction,
which expressly required a finding that defendant "actually knew from the
circumstances then existing that the heater had not properly been repaired." 
If there was any flaw in the instruction, it stemmed from the court's use of
the term "reasonable-person" instead of "law-abiding person" when describing
the standard for objectively assessing the nature of the risk.  This does not
amount to plain error.  See State v. Pelican, 160 Vt. 536, 632 A.2d 24, __
(1993) (plain error must seriously affect substantial rights and unfairly
prejudice jury's deliberations). 

     Next, defendant challenges as erroneous the court's instruction that the
vendor of real estate has a legal duty to disclose undiscoverable material
defects to the buyer.  Defendant argues that he had no such legal duty,
because the case establishing this duty was decided after he sold his home in
1988.  See Silva v. Stevens, 156 Vt. 94, 103-04, 589 A.2d 852, 857-58 (1991)
(real estate vendor has duty to disclose material defects otherwise
undiscoverable). Defendant also insists that the instruction amounted to a
directed verdict for two reasons.  First, the jury was not instructed that it
must determine whether defendant had a duty to disclose the defect.  See
State v. Valley, 153 Vt. 380, 390, 571 A.2d 579, 584 (1989) (where
involuntary manslaughter is based on reckless omission, existence of legal
duty to act is essential element of case and must be charged).  Second, the
instruction did not remind the jury of the State's burden to prove the
existence of the duty beyond a reasonable doubt. 

     Defendant's arguments are without merit.  A duty to speak had been
recognized in the context of real estate transactions before defendant sold
his home.  See Sutfin v. Southworth, 149 Vt. 67, 70, 539 A.2d 986, 988 (1987)
(recognizing duty to speak in real estate transaction where seller knew raw
sewage was being deposited on neighboring land and buyer was ignorant of
condition and had no incentive to inspect adjacent property); Cushman v.
Kirby, 148 Vt. 571, 575, 536 A.2d 550, 552 (1987) (recognizing that a duty to
speak exists as a matter of law where seller has superior knowledge and
relationship of the parties is that of vendor and purchaser of 

 

real estate). The instruction was an accurate statement of existing law,
therefore there was no error.  Percy, 158 Vt. at 419, 612 A.2d  at 1125. 

     Moreover, we disagree with defendant's argument that the court directed
a verdict on the issue of duty.  The court did not tell the jury that
defendant had a duty to plaintiff.  It stated the law regarding the duty to
disclose and instructed the jury to apply the facts to the law.  The court
also expressly and repeatedly informed the jury of the State's burden in
making the charge as a whole.  There was no need to repeat the State's burden
after each issue or element.  See Pelican, 160 Vt. at 540, 632 A.2d 26. 
There was no error. 

     In the alternative, defendant argues that even if the jury was properly
charged on the existence of a duty, he was entitled to have certain defenses
included in that charge.  He contends that an instruction should have
explicitly precluded criminal liability if the jury found that either
defendant did not know the heater was not working or reasonably believed that
the buyers would discover the defect.  Defendant maintains that failure to
include this instruction amounted to plain error. 

     We agree that defendant was entitled to have the jury resolve the truth
or falsity of defendant's claim that he did not know the heater had not been
repaired.  We believe, however, that the jury was so instructed.  See State
v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 258 (1955) (defendant entitled to
instruction appropriate to case made by his evidence).  Although not
articulated as a fact precluding liability, the instructions gave the jury
ample opportunity to consider defendant's primary defense.  Separate
instructions on recklessness and intervening causation required the jury to
determine, beyond a reasonable doubt, whether defendant actually knew the
heater was not fixed at the time of sale.   State v. Day, 149 Vt. 165, 167,
540 A.2d 1042, 1043 (1987) (court is free to use its own language as long as
charge fully and fairly represents issues, theories and claims presented by
the evidence).  Defendant's second rationale, that he did not know that the
defect was undiscovered, was not an issue presented at trial. Throughout the
trial, defendant maintained that he thought the heater was fixed.  Defendant
did 

 

not present evidence either that he expected the buyers to discover the
defect or that the buyers' should have discovered the defect.  The trial
court was not required to charge matters not covered by the evidence.  Id. 

     Defendant's third challenge attacks the court's instruction on
independent intervening causation.  Defendant argues that the instruction
prohibited acquittal even if the jury concluded that others knew of the
danger and failed to warn the buyers.  Defendant contends that evidence that
VGS or C & L negligently failed to repair the heater and that the
professional inspector failed to discover the flaw was presented, and
therefore, warranted an explicit instruction on intervening cause.  Again, we
review for plain error. 

     In State v. Yudichak, we held that "one cannot be convicted of
manslaughter in the presence of an intervening cause of death, unless that
intervening cause is found to be a natural result of one's acts." 151 Vt.
400, 403, 561 A.2d 407, 409 (1989).  A defendant will be criminally
responsible for the course of events which naturally flow from his act or
omission, unless the act of another breaks the chain of causation set in
motion by the original reckless act. Id.  An act of another breaks the chain
of causation when it is not a natural and foreseeable result of defendant's
acts.  Id.  After reiterating the Yudichak standard almost verbatim, the
court directed the jury to consider the acts or omissions of VGS and C & L as
a potential intervening cause.  To identify when their alleged negligence
would cease to be an intervening cause, the court instructed that "the state
must show on this issue that the defendant actually knew that the gas heater
had not been repaired when he sold the property."  Although, defendant would
have preferred a different articulation, the instruction was an accurate
statement of the law and, as such, did not amount to error.  Percy, 158 Vt.
at 419, 612 A.2d  at 1125. 

                     II. Insufficiency of the Evidence

     Defendant challenges the court's denial of his motion for acquittal,
claiming there was insufficient evidence to convict on the essential elements
of recklessness and a legal duty.  The State argues that defendant waived
this claim because he did not move for acquittal at the close 

 

of the evidence.  State v. Dion, 154 Vt. 420, 425, 578 A.2d 101, 104 (1990)
("to preserve a claim of insufficiency of the evidence, defendant must make a
motion in the trial court for judgment of acquittal under V.R.Cr.P. 29(a) at
the close of the evidence);  State v. Norton, 139 Vt. 532, 534, 431 A.2d 1244, 1245 (1981) (unless defendant moves for judgment of acquittal at end of
trial, insufficiency of evidence claim will not be preserved).  But even if a
Rule 29(a) motion is not made, a defendant may properly raise a claim based
on insufficiency of evidence by moving under V.R.Cr.P. 29(c). Rule 29(c)
states: 
     
     If the jury returns a verdict of guilty or is discharged without
     having returned a verdict, a motion for judgment of acquittal may
     be made or renewed within 10 days after the jury is discharged .
     . . It shall not be necessary to the making of such a motion that a
     similar motion has been made prior to the submission of the case
     to the jury.

The plain language of Rule 29(c) allows a postverdict motion for acquittal
regardless of whether a similar motion was made under Rule 29(a).  See
Reporter's Notes, V.R.Cr.P. 29(c). Defendant properly raised his claim by
filing his motion within ten days after the jury verdict was delivered.  See
State v. Bressette, 136 Vt. 315, 317, 388 A.2d 395, 396 (1978); accord State
v. Winters, 136 Vt. 469, 470, 392 A.2d 429, 430 (1978).  To the extent that
Dion, Norton and subsequent cases are inconsistent with Bressette or today's
clarification, they are overruled. 

     In reviewing the denial of defendant's motion for judgment of acquittal,
we consider whether the evidence, taken in a light most favorable to the
State and excluding modifying evidence, is sufficient to fairly and
reasonably support a finding of guilt beyond a reasonable doubt.  State v.
Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378 (1991).  Evidence that leaves
guilt uncertain or dependent upon conjecture is insufficient.  Id.  Defendant
contends, and we agree, that proof of both recklessness and the existence of
a legal duty hinged on finding that he actually knew the driveway heater had
not been repaired.  Defendant argues, however, that there was insufficient
evidence to prove beyond a reasonable doubt that he knew the driveway heating
unit had not been repaired.  We disagree. 

 

     Defendant knew the heater was malfunctioning and emitting fumes when he
took McDermott and her infant child to the hospital in November 1987. 
Representatives from C & L and VGS testified that they explained the exhaust
problem to defendant and told him that the system was dangerous and needed
repairs.  Although there was conflicting testimony about who was responsible
for the repairs, resolving this confusion was less important than determining
when, and if, defendant thought the repairs were completed. 

     Defendant's position was that he thought the heater was fixed by VGS
shortly after, if not immediately following, the November 1987 accident. 
Other witnesses, however, testified to conversations with defendant about
repairing the heater which refute defendant's position. The C & L employee,
Linden, testified that one month after the accident, defendant told him the
heater was still unrepaired.  Linden then told defendant he was "playing
Russian roulette." Defendant suggests that he construed Linden's conversation
with him to mean that Linden had fixed the problem.  Linden testified,
however, that a reasonable person would not have thought the problem was
fixed.  In the summer of 1988, at the recommendation of defendant's real
estate agent, defendant spoke with Karl Sklar.  According to Sklar's
testimony, defendant mentioned that there was a problem with the heater and
asked Sklar if he would work on it.  There was no evidence that either VGS or
C & L worked on the heater while the home was on the market or after Sklar's
visit.  In sum, there was sufficient evidence fairly and reasonably
supporting a finding that defendant actually knew the heater had not been
repaired when he sold his home to the Cifarellis.  With this critical finding
and other supporting evidence, the jury could reasonably conclude that
defendant had the requisite reckless intent.  There was sufficient evidence
to support a finding that defendant's failure to disclose the existence of
the malfunctioning heater before selling his home amounted to a conscious
disregard of a substantial and unjustifiable risk. 

     There was also sufficient evidence that defendant breached his legal
duty to disclose the heater's defect.  "`Where material facts are accessible
to the vendor only, and he knows them not to be within the reach of the
diligent attention, observation and judgment of the purchaser, 

 

the vendor [of real estate] is bound to disclose such facts.'"  Cushman, 148
Vt. at 576, 536 A.2d  at 553 (quoting Lawson v. Citizens & S. Nat'l Bank, 193 S.E.2d 124, 128 (S.C. 1972)). Defendant knew that the heater could emit
noxious fumes into the home, if unattended, and that it was unrepaired when
his home was on the market.  Defendant also accompanied both Linda Cifarelli
and the home inspector on their tours of the home.  In each instance, he
demonstrated the heater, but did not mention its history.  The jury could
reasonably conclude that defendant knew that the Cifarellis, despite two
walk-throughs and a home inspection, were unaware of the heater's dangerous
condition.  Thus, there was sufficient evidence upon which the jury could
find that defendant failed to disclose a material defect when he had a duty
to disclose them. 

     Defendant suggests that his continued use of the heater during the
winter of 1987 was persuasive evidence, rising to the level of reasonable
doubt, that he thought the heater was repaired or that he was unaware of the
substantial risk.  We disagree.  The jury could have reasonably construed
such evidence to have the opposite effect.  Because defendant understood the
exact nature of the problem, the jury could reasonably have inferred that
defendant ran the heater only for brief periods to prevent exhaust back-up. 
His instructions to the real estate agent to run the heater only briefly
suggest as much.  Additional evidence that defendant checked the exhaust
cylinders before and after using the heater reasonably implied that defendant
was himself wary of using the machine.  Defendant's motion for judgment of
acquittal was properly denied. 

                      III. Constitutional Challenge

     Defendant argues that unlawful-act manslaughter predicated on reckless
endangerment is unconstitutionally vague when applied to the facts of this
case. See 13 V.S.A.  2304 (a person who commits manslaughter shall be fined
not more than $3,000, or imprisoned for not less than one year nor more than
15 years, or both); Id.  1025 (a person recklessly engages in conduct when
that person places or may place another person in danger of death or serious
bodily injury).  Under the void-for-vagueness doctrine, a penal statute must
define a criminal offense with sufficient clarity to inform a person of
ordinary intelligence of proscribed conduct 

 

and to discourage arbitrary and discriminatory enforcement.  State v.
Cantrell, 151 Vt. 130, 133, 558 A.2d 639, 641 (1989). 

     Defendant argues he did not have fair warning that his conduct could
result in a manslaughter charge where the existence of a legal duty to
disclose had not been definitively established and where he believed the
heater to be working properly.  As applied to the facts of this case,
defendant's argument is without merit.  The recognition of a duty to disclose
material defects to the buyers predated the sale of defendant's home.  See
ante part I.  The evidence indicates, and the jury found, that defendant's
omission amounted to reckless endangerment because he knew the heater was not
repaired when he sold the home.  As applied to defendant, the statute is not
unconstitutionally vague. 

     Defendant also argues that the scope of involuntary manslaughter
predicated on reckless endangerment is prone to arbitrary and discriminatory
enforcement.  In support of this argument, defendant points to the trial
court's comment that "the variety of fatal conduct sufficient to support a
conviction for involuntary manslaughter is probably limited only by
[humanity's] ability to devise new forms of danger."  The indefiniteness of
what will amount to reckless conduct does not necessarily permit arbitrary
enforcement.  See State v. Purvis, 146 Vt. 441, 442, 505 A.2d 1205, 1207
(1985).  Although we cannot specify every set of facts which constitute
reckless conduct, the recklessness standard is sufficiently precise to
prevent it from being arbitrarily applied.  The scope of conduct which may be
deemed reckless is sufficiently narrowed by the requirement that the risk,
when objectively viewed, amounts to a gross deviation from the standard of
conduct that a law-abiding person would observe in the actor's situation. 
O'Connell, 149 Vt. at 115 n.1, 540 A.2d  at 1030; see State v. Roy, 140 Vt.
219, 229-30, 436 A.2d 1090, 1095 (1981) (a reasonable person would comprehend
the proscribed conduct).  The statute is not unconstitutionally vague. 

                       IV. Motion to Sequester

     Defendant argues that the court abused its discretion when it denied his
unopposed motion 

 

to sequester the jury because it failed to consider the circumstances in
light of State v. Brisson, 124 Vt. 211, 201 A.2d 881 (1964).  In Brisson, we
stated: 

     When dealing with the integrity of the jury, [defendant] has only
     to show the existence of circumstances capable of prejudicing the
     deliberative function of the jury.  He is not required to prove that
     they actually did so. (citation omitted).

     Events or circumstances which might not be of concern where
     a jury is under the control and scrutiny of the court itself during
     trial, might be factors of greater weight when their effect on a jury
     at large in the community is being considered.

Id. at 215, 201 A.2d  at 883 (emphasis added).  Defendant contends that he
merely needed to present circumstances capable of prejudicing the jury.  In
support of his motion, defendant argued that there were "parties who may as
the trial progresses seek to put a spin on any media coverage so as to change
the public opinion."  Defendant's counsel also noted that it was his
experience that television coverage of criminal trials results in a carnival
atmosphere and that the power of television entices jurors to "cheat a bit"
on their oath.  Counsel also contended that the only way to ensure the
absence of juror taint was sequestration.  Defendant pointed to substantial
pretrial publicity, the novel theory of criminal liability and the presence
of television cameras in the court room as circumstances capable of
prejudicing the jury. 

     While Brisson is the correct standard under which defendant's motion
should be reviewed, defendant misconstrues that standard.  Brisson requires
that a defendant demonstrate a nexus between the events or circumstances and
juror taint.  Brisson, 124 Vt. at 214, 201 A.2d  at 883 (motion for jury
sequestration properly denied because defendant made "no showing that any
untoward event occurred in connection with any part of the panel so as to
cloud their impartiality"); State v. Dragon, 135 Vt. 168, 170, 376 A.2d 12,
13 (1977) (a demonstrable showing of prejudice required, mere speculation of
juror prejudice insufficient).  Here, defense counsel relied on his own
experience and belief that publicity caused taint.  The only evidence that he
presented was that there had been extensive media coverage of both the
Cifarellis' deaths and the trial.  Extensive publicity and the presence of
media are not enough to establish this 

 

nexus.  If it were, practically all juries assigned to high profile cases
would require sequestration.  See Holt v. United States, 218 U.S. 245, 251
(1910) (If mere opportunity for prejudice or corruption raises presumption
that they exist, it would be hard to maintain a jury trial under the
conditions of the present day); State v. Piskorski, 419 A.2d 866, 876 (Conn.
1979) (extensive pretrial publicity does not itself demonstrate danger of
juror prejudice). 

     Moreover, defendant has not demonstrated any resulting prejudice. 
During voir dire, members of the panel were extensively questioned regarding
their exposure to the media and their predispositions to the case based on
that exposure.  The judge systematically warned them about the media when
they recessed.  Upon their return, he systematically questioned the panel.
Finally, notwithstanding the continued publicity, defendant did not renew his
objections regarding possible juror taint.  The trial court properly denied
the motion to sequester. 

     Affirmed.
                              FOR THE COURT:


                              _______________________________________
                              Chief Justice