State v. Olsen

State v. Olsen  (95-119); 165 Vt 208; 680 A.2d 107

[Opinion Filed 10-May-1996]

       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. 95-119


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Windsor Circuit

Thomas K. Olsen                                   January Term, 1996


Walter M. Morris, Jr., J.

       M. Patricia Zimmerman, Windsor County State's Attorney, White River
  Junction, for plaintiff-appellee

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


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


       MORSE, J.   Defendant Thomas Olsen appeals his conviction by jury for
  the second-degree murder of his girlfriend's two-year-old daughter,
  Melissa, arguing that the trial court erred by (1) denying his motion for
  judgment of acquittal on the issue of his intent to kill, (2) instructing
  the jury on a theory of second-degree murder not charged in the
  information, (3) excluding evidence of prior allegations of child abuse
  against the daycare provider, and (4) failing to grant his motion for new
  trial on newly discovered evidence.  We affirm.

       On November 3, 1992, the day of the death, defendant and Melissa's
  mother picked up Melissa and her sister between 4:15 and 4:30 p.m. from
  their daycare provider.  Melissa had been exhibiting cold-like symptoms,
  was inactive, and had not had a good appetite for a few days.  Upon
  arriving home, Melissa's mother carried her into the house because she was
  not feeling well.  Mother then went directly to an appointment scheduled
  for 4:30 p.m., leaving defendant with the children.

       Defendant's brother, who was in the process of moving into the home,
  arrived at

 

  approximately 4:45 p.m.  Melissa's older sister and defendant's daughter
  were coloring in the kitchen.  A few minutes later, defendant called to his
  brother to come upstairs where Melissa was lying on a love seat in
  defendant's bedroom.  Defendant explained to his brother that she had
  fallen down the stairs.  The brother observed that Melissa appeared to have
  "the wind knocked out of her," and to be "a little flush," her lips being
  "just a little discolored maybe." The brother suggested that defendant take
  her to the hospital.  They arrived at the hospital emergency room at
  approximately 5:00 p.m.  At 6:23 Melissa was pronounced dead.

                                I.

       Defendant first contends that the trial court erred by denying his
  motion for judgment of acquittal, claiming that the evidence presented at
  trial was insufficient to establish that he acted with "malice," the
  requisite state of mind necessary to support a conviction of murder.

       "Malice" has been defined as "an intention to kill, an intention to do
  great bodily harm, or a wanton disregard of the likelihood that one's
  behavior may naturally cause death or great bodily harm."  State v.
  Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983); see also State v.
  Johnson, 158 Vt. 508, 519, 615 A.2d 132, 138 (1992) (because malice denotes
  various mental states trial courts should refrain from using term in jury
  instructions to avoid confusion).  In this case, the evidence was more than
  adequate to prove beyond a reasonable doubt that defendant acted with
  wanton disregard for the likelihood that his behavior might cause death or
  serious injury.

       The victim, Melissa, was a two-year-old child.  She sustained severe
  head and neck injuries, lacerations of the liver, and hemorrhaging in the
  pancreas.  An autopsy performed by the State Medical Examiner's Office
  determined the immediate cause of death to be injuries to the brain and
  brainstem.  These injuries, identified as the consequence of violent
  shaking, were consistent with a pattern of abuse-related physical symptoms
  known as "shaken-baby syndrome."

       The Medical Examiner testified that Melissa's abdominal injuries,
  which he described as severe, could have been fatal in themselves. 
  Moreover, these abdominal injuries could only have been caused by extremely
  forceful kicks, punches or blows with a blunt object.  The

 

  Medical Examiner testified, as well, that this combination of serious head
  and abdominal injuries was not consistent with a fall down the stairs, and
  that he would classify the cause of death as "homicide." He also noted that
  the magnitude of Melissa's injuries would have been apparent to a care
  giver because Melissa would have been "rapidly incapacitated" and in pain.

       Given the nature and severity of these injuries, the jury could have
  concluded beyond a reasonable doubt that defendant's beating of Melissa
  amounted to second-degree murder.  See State v. Brunell, 159 Vt. 1, 8-9,
  615 A.2d 127, 131 (1992) (evidence supported second-degree murder
  conviction for death of three-year-old daughter where defendant's conduct
  was so "`reckless and wanton'" that jury could infer he was aware of
  serious risk of death) (quoting United States v. Eder, 836 F.2d 1145,
  1148-49 (8th Cir. 1988)); Doucette, 143 Vt. at 582, 470 A.2d  at 682 (to
  find malice jury may take into consideration facts and circumstances
  surrounding killing).  The court properly denied the motion for judgment of
  acquittal.

                               II.

       Next, defendant claims the State charged him with second-degree murder
  based solely upon express intent to kill, and that it was error to submit
  the case to the jury on the theory that he could be convicted for "wanton
  disregard" for life, or so-called implied intent to kill.  See State v.
  Burclaff, 138 Vt. 461, 464, 418 A.2d 38, 40 (1980) (defendant must be given
  notice of charges in indictment or information).  We disagree.

       The information charged, in a count of second-degree murder, that
  defendant "willfully, deliberately and with malice aforethought kill[ed]
  and murder[ed] Melissa Stevens."  Focusing on the words "willfully" and
  "deliberately," defendant contends that this charge describes only express
  intent to kill.  He further asserts that because the State did not
  introduce sufficient evidence of express intent to convict him, he chose
  not to testify.  As noted above, this Court has defined "malice" as "an
  intention to kill, an intention to do great bodily harm, or a wanton
  disregard of the likelihood that one's behavior may naturally cause death
  or great bodily harm." Doucette, 143 Vt. at 582, 470 A.2d  at 682; see also
  Johnson, 158 Vt. at 515, 615 A.2d  at 136 (definition of malice includes
  intent to cause serious bodily injury or extreme indifference to

 

  human life).  "Willfully and deliberately" means done by design, not by
  accident or mistake. Brunell, 159 Vt. at 7, 615 A.2d  at 130.  Thus the
  information put defendant on notice that intent to kill could be proven by
  showing that his actions were not accidental and evinced "wanton disregard"
  for life.

       Furthermore, second-degree murder is a lesser-included offense of
  first-degree murder. State v. Delisle, 162 Vt. 293, 301, 648 A.2d 632, __
  (1994).  The jury could have convicted defendant of second-degree  "wanton
  disregard" murder even if the State had charged him only with "wilful,
  deliberate and premeditated" first-degree murder, despite the fact that the
  two charges are predicated on different mental states.  See 13 V.S.A. §
  2301 (defining first-degree murder).  There is no authority for his claim
  that the State must specify in the information how it intends to prove
  intent to kill.  See State v. Towne, 158 Vt. 607, 631, 615 A.2d 484, __
  (1992 (information need only reasonably indicate exact offense accused is
  charged with). Defendant's claim is without merit.

                                    III.

       We discuss defendant's last two claims together.  After the verdict,
  defendant sought a new trial, relying on an affidavit of Claude Buttrey,
  defendant's counsel.  See V.R.Cr.P. 33 (motion for new trial on grounds of
  newly discovered evidence).  In the affidavit, attorney Buttrey stated that
  Melissa's sister saw the daycare provider kick Melissa in the abdomen on
  the day she died.  He contended that the daycare provider threatened the
  sister to prevent her from testifying, and argued that if the sister were
  permitted to testify, the outcome of the trial would change.  Attorney
  Buttrey conceded, however, that he was aware, prior to trial, of the
  interaction between the sister and the daycare provider, and of the
  sister's statement about the abuse.  He stated as well that he chose not to
  call the sister as a witness because she was "terrified of testifying." 
  The "evidence" in question plainly was not "newly discovered" after trial. 
  See State v. Sheppard, 155 Vt. 73, 75, 582 A.2d 116, 118 (1990) 582 A.2d  at
  116 (to be "newly discovered," evidence must be discovered after trial). 
  Furthermore, the "evidence" was not an affidavit of the supposed witness,
  but was instead a hearsay account of what the

 

  witness allegedly told attorney Buttrey.  Evidence of this character would
  not, in itself, support a motion for a new trial.  See id. at 75, 582 A.2d 
  at 117 (motions for new trial on grounds of newly discovered evidence are
  not favored; exacting standards apply); State v. Miller, 151 Vt. 337, 339,
  560 A.2d 376, 377 (1989) (new trial test clearly requires court to evaluate
  quality of evidence alleged to be newly discovered).

       Defendant also argues that the trial court erred by excluding evidence
  of allegations of child abuse against the daycare provider.  Although the
  record is vague on the point, before Melissa's death the daycare provider
  had apparently been the subject of an SRS investigation. Allegedly, a child
  under her care was struck on the face, leaving an adult hand print.  This
  allegation of abuse was ultimately found to be unsubstantiated.  The State
  sought to bar introduction of this evidence through a motion in limine, and
  the trial court granted the motion.

       Defendant claims that, given the evidence of abuse in attorney
  Buttrey's affidavit, evidence of the prior allegations of child abuse is
  relevant and admissible under V.R.E. 404(b) as probative of the daycare
  provider's motive and opportunity to abuse Melissa.  See State v. Gilman,
  158 Vt. 210, 214, 608 A.2d 660, 663 (1992) ("Evidence tending to show a
  third party's involvement in a crime should be admitted `as long as motive
  and opportunity have been shown and . . . there is also some evidence to
  directly connect [the] third person to the crime charged.'") (quoting State
  v. Denny, 357 N.W.2d 12, 17 (Wis. App. Ct. 1984)) (alterations in
  original).  As noted above, however, the affidavit was first submitted to
  the court in support of a post-trial motion, and furthermore, was not an
  affidavit of the alleged witness.  At trial, defendant offered no direct
  evidence indicating that the daycare provider had abused Melissa, and even
  if he had, the injuries described belie the conclusion that Melissa could
  have received them before arriving home.  The court can hardly be faulted
  for excluding evidence that the daycare provider was the subject of an
  investigation into unsubstantiated child abuse involving another child. 
  The relevance of the evidence was tenuous, its probative value low, and the
  risk of jury confusion substantial.  The court did not abuse its discretion
  by excluding the evidence. See V.R.E. 403, 404.

 


   Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice