State v. Little

State v. Little (95-243); 167 Vt. 577; 705 A.2d 177

[Opinion Filed 16-Sep-1997]

[Motion for Reargument Denied 9-Oct-1997]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 95-243

                               JUNE TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Chittenden Circuit
Frederick A. Little             }
                                }     DOCKET NO. 2781-7-93Cncr


       In the above-entitled cause, the Clerk will enter:

       Defendant Frederick Little appeals his conviction for second-degree
  murder following a jury trial in Chittenden District Court.  Defendant
  claims that the trial court erred when it (1) refused to instruct the jury
  that defendant was justified in using deadly force to suppress the
  attempted commission of a felony, (2) instructed the jury that defendant
  could be found guilty if he acted with wanton disregard of the potential
  consequences, and (3) admitted certain photographs of the victim.  We
  affirm.

       On July 9, 1993, defendant, the victim (Robbie Pasho), and two other
  friends gathered for a social evening at defendant's house.  After spending
  the night at a club, defendant and Pasho returned to defendant's house
  around 1:00 a.m., where they sat up talking with defendant's friend, Holli
  Smith.  Defendant then went to bed, leaving Pasho and Smith chatting at the
  dining-room table.

       Defendant testified that later that night he was awakened by Smith,
  who was next to him in bed squeezing his hand.  When defendant opened his
  eyes, he saw the silhouette of a man at the doorway of the bedroom.  After
  a moment, the man dropped to his knees and started crawling toward the bed. 
  As the man reached the bed, defendant jumped over Smith and began fighting
  with the intruder.  The struggle moved down the hallway and into the living
  room, where the intruder broke free and ran out the door.

       Defendant grabbed his glasses and a handgun and followed the man
  outside.  He saw the man sitting in a car in the driveway and walked up to
  the car.  He testified that the man made a quick motion as if reaching for
  a gun, whereupon defendant shot him.  Defendant testified that at no time
  during the incident did he recognize the person as Pasho, nor did he
  recognize Pasho's car.  Pasho died almost immediately from a gunshot
  through the head.

       Defendant first asserts that the trial court erred when it refused to
  instruct the jury that his killing of Pasho was justified if he used deadly
  force to suppress the attempted commission of a felony.  The trial court
  ruled that the evidence did not support such a charge.  See State v.
  Cantrell, 151 Vt. 130, 135-36, 558 A.2d 639, 643 (1989) (to be entitled to
  instruction on particular defense, defendant must establish prima facie
  case on each of its elements).

       The statute to which defendant refers states that homicide is
  justified if it occurs "[i]n the suppression of a person attempting to
  commit murder, sexual assault, aggravated sexual assault, burglary or
  robbery, with force or violence."  13 V.S.A. § 2305(2).  Citing historic
  sources,

 

  defendant urges an interpretation that would justify any killing in the
  suppression of a listed felony, as long as the felony was committed in the
  defendant's presence.  See 1 J. Chitty, A Practical Treatise on the
  Criminal Law *16-17 (5th ed. 1847) ("Private individuals are enjoined by
  law to arrest an offender when present at the time a felony is committed .
  . . . [W]hen the felony is committed in the view of a private person . . .
  any one [sic] may justify breaking open doors upon following the felon, and
  if he kill him, provided he could not otherwise take him, the act is
  justifiable. . . .").

       We see no need to debate the finer points of this eighteenth-century
  statute, for it is clear that it requires evidence that the victim acted
  "with force or violence."  13 V.S.A. § 2305(2). There was no evidence of
  force or violence on Pasho's part until he was attacked by defendant.
  Defendant testified that he saw a person's silhouette, which he assumed to
  be a man, in the bedroom doorway.  The man then dropped to his knees and
  began crawling toward the bed.  The fight began only after defendant jumped
  across the bed and, as he testified, "engaged th[e] intruder."  The fight
  then moved down the hallway and into the living-room area where Pasho broke
  away and ran from the house.  Pasho was killed after defendant got his gun,
  followed Pasho out of the house, and shot him sitting in his car. 
  Defendant told a detective soon after the incident that he did not believe
  the intruder had a weapon while in the house, and no weapon was found in
  Pasho's car.  Thus, we agree that the evidence did not support a § 2305(2)
  justified-homicide charge.

       Defendant next argues that the trial court erred in instructing the
  jury that it could find defendant guilty if defendant acted with wanton
  disregard, because the wanton-disregard instruction permitted conviction of
  a crime not charged.  We first note that defendant failed to preserve this
  issue by objecting to the instruction before the jury retired.  See
  V.R.Cr.P. 30; State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993). 
  Therefore, we review defendant's assertion for plain error only.  See
  V.R.Cr.P. 52(b); cf. Pelican, 160 Vt. at 538-39, 632 A.2d  at 26 (defendant
  must show claimed error affected substantial rights and had unfair
  prejudicial impact).

       The information charged that defendant "willfully, deliberately and
  with either the intent to kill or the intent to do great bodily injury"
  killed Pasho.  The court subsequently instructed the jury that defendant
  could be found guilty of second-degree murder if it found that he acted
  with intent to kill, intent to do great bodily harm, or wanton disregard of
  the likelihood that his conduct would naturally cause death or great bodily
  injury.

       As we noted in State v. Olsen, ___ Vt. ___, ___, 680 A.2d 107, 109
  (1996), intent can be proven by showing that a defendant's actions were not
  accidental and evinced a wanton disregard for life; the wanton-disregard
  instruction thus defines implied or constructive intent. Accord State v.
  Johnson, 158 Vt. 508, 518, 615 A.2d 132, 137 (1992).  The State's
  information expressly charged that defendant acted intentionally.  Although
  the State was required to inform defendant of the cause and nature of the
  accusation against him, see State v. Phillips, 142 Vt. 283, 288, 455 A.2d 325, 328 (1982), it was not required to specify how it planned to prove the
  element of intent, see Olsen, ___ Vt. at ___, 680 A.2d  at 109.  We
  therefore find no error in the court's instructions.

       We also see no error with the jury's answers on the verdict form.  In
  response to the question asking the jury to specify the defendant's state
  of mind that supported a verdict of second-degree murder, the jury
  indicated both intent to do great bodily harm and wanton disregard of the
  likelihood that the conduct would cause death or great bodily harm. 
  Defendant suggests this indicates possible lack of unanimity in deciding an
  essential element of the crime.

 

       The verdict form, however, clearly instructed the jury that its
  "decision must be unanimous on one of th[e] three [listed mental states]." 
  Upon seeing the jury's answer, the court immediately queried the foreperson
  for an explanation, to which she replied that the jury was unanimous on
  both of the mental states it had indicated.  Based on our reasoning above,
  we see no inconsistency with the jury finding that defendant acted both
  with intent to cause great bodily harm and with wanton disregard of the
  likelihood that his conduct would cause death or great bodily harm.

       Finally, defendant argues that the court should not have admitted
  certain photographs, one showing Pasho's body on the autopsy table, one
  showing a close-up of Pasho's facial wounds, and the other three showing
  defendant's gun held next to Pasho's face.  In essence, defendant argues
  that the photographs had no probative value and were needlessly
  inflammatory. Trial courts have great latitude in deciding whether to admit
  or exclude evidence, and such decisions will not be reversed absent an
  abuse of discretion resulting in prejudice.  Gilman v. Towmotor Corp., 160
  Vt. 116, 122, 621 A.2d 1260, 1263 (1992); see State v. Rebideau, 132 Vt.
  445, 450, 321 A.2d 58, 61-62 (1974) (admissibility of photographs is matter
  for discretion of trial court).

       Pursuant to V.R.E. 401, evidence is relevant if it has any tendency to
  make the existence of any fact of consequence more or less probable than it
  would be without the evidence.  Thus, the test for relevancy -- and its
  companion, probative value -- is whether the evidence has any tendency to
  establish, or refute, the proposition for which it is offered.  Reporter's
  Notes, V.R.E. 401.  The record shows that the court heard arguments from
  both sides concerning the photographs' relevancy before admitting them. 
  The State pointed out that after the shooting, Pasho's bloody shirt was
  found wrapped around his shoes on the car seat next to him.  The photograph
  of Pasho on the autopsy table showed smeared blood on his torso and arm,
  which the State argued indicated a pause in the fight that lasted long
  enough for Pasho to remove his shirt upon reaching the car, wipe off some
  of the blood using his shirt, and then wrap his sandals in the shirt before
  being confronted by defendant.  This pause in the fight indicated that
  defendant had time to reflect on his actions before he shot Pasho.  As to
  the one photograph of Pasho's face and the three of defendant's gun held
  next to his face, the State argued they showed that Pasho's wounds lined up
  with the muzzle of the gun.  This indicated that defendant beat Pasho with
  the gun prior to shooting him, which conflicted with defendant's story that
  he only used his fists while fighting with the intruder.  The trial court
  noted that evidence suggesting defendant's version of the story was not
  credible was relevant, and admitted the photographs after the medical
  examiner testified that Pasho's facial wounds were not the type expected to
  be caused by human fists, but were consistent with being beaten with the
  gun.  We see no error in the court's determination that the photographs
  were relevant.

       Nonetheless, defendant asserts that the photographs were "needlessly
  inflammatory" and therefore should not have been admitted, presumably
  arguing that the trial court erred in not excluding them pursuant to V.R.E.
  403.  As we have previously noted, however, nearly all evidence for the
  prosecution in a criminal case is prejudicial against the defendant to some
  degree.  See State v. Bruyette, 158 Vt. 21, 31, 604 A.2d 1270, 1274 (1992). 
  Only evidence that is unfairly prejudicial should be excluded.  Id.; see
  V.R.E. 403.  Evidence is unfairly prejudicial if its primary purpose or
  effect is to appeal to the jury's sympathies, arouse its sense of horror,
  provoke its instinct to punish, or cause other reactions that would result
  in the jury basing its decision on something other than the established
  propositions of the case.  See Bruyette, 158 Vt. at 31, 604 A.2d  at 1274. 
  Only when this danger of unfair prejudice substantially outweighs probative
  value should the evidence be excluded.  See V.R.E. 403.

 

  We do not find that the photographs rise to the level of provoking a jury
  to return a verdict based on its emotional reaction.  In addition, the
  jurors were warned during voir dire that they might be shown such evidence,
  and a juror who indicated she was disturbed by this possibility was
  dismissed.  Overall, the court did not abuse its discretion in determining
  that the photographs were relevant, or in declining to exclude them under
  Rule 403.

       Affirmed.




                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice