State v. Carrasquillo

State v. Carrasquillo (2000-438); 173 Vt. 557; 795 A.2d 1141

[Filed 22-Jan-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-438

                             NOVEMBER TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Chittenden Circuit
                                       }
Edward Carrasquillo	               }	DOCKET NO. 6727-11-99CnCr

                                                Trial Judge:  Shireen A. Fisher
	
             In the above-entitled cause, the Clerk will enter:


       This is an appeal by defendant Carrasquillo from the trial court's
  limitation of Carrasquillo's  cross examination of a State's witness who
  had allegedly assaulted Carrasquillo subsequent to the  events underlying
  this appeal.  Defendant also argues on appeal that the evidence presented
  at trial  was quantitatively insufficient, as a matter of law, to satisfy
  the "substantial period" element of  Vermont's kidnapping statute, 13
  V.S.A. § 2404(3)(C).  We affirm.

       Defendant Carrasquillo was an inmate at the South Burlington
  Correctional Facility when he  was charged, under a four-count information,
  with aggravated assault on Corrections Officer  Charnley, aggravated
  assault with intent to prevent said law enforcement officer from performing
  a  lawful duty, attempted escape, and kidnapping.  The charges against
  Carrasquillo arose from an  altercation involving himself, another inmate,
  Officer Charnley and a Nurse Brannagan who worked  at the facility.  The
  altercation began when Nurse Brannagan, accompanied by Officer Charnley, 
  began dispensing medication to inmate Carrasquillo at his cell in the
  facility's "lockdown" unit.   Carrasquillo was acting strangely:  taking
  his medicine slowly, asking a lot of questions, stepping out  of his cell,
  and insisting that he be allowed to go up the hall to look for a pair of
  sneakers he claimed  was missing.  He then stated he did not feel well and
  fell towards the hallway.  As Officer Charnley  attempted to close the cell
  door, Carrasquillo pulled a sharpened toothbrush, commonly referred to as 
  a "shank," from his pocket and ordered the officer into the cell.  A
  physical struggle between Officer  Charnley and Carrasquillo ensued during
  which Carrasquillo's cell mate, on Carrasquillo's orders,  grabbed Nurse
  Brannagan by the neck, restraining her.  Other officers arrived at the
  scene as Officer  Charnley and Carrasquillo continued to struggle and Nurse
  Brannagan was held "in a hostage  situation position."  Carrasquillo then
  stabbed Officer Charnley in the head with the shank.  Both  Carrasquillo
  and the other inmate were ultimately returned to the cell.  Soon
  thereafter, Carrasquillo  was moved to a more secure facility.  During the
  transfer, while Carrasquillo was in restraints,  Officer Charnley
  approached Carrasquillo and struck him.  Officer Charnley was subsequently 
  discharged from employment by the facility, and criminal charges were filed
  against him based on  this incident.

 

       At trial on the four-count information against Carrasquillo, Officer
  Charnley served as a  witness for the State.  As a preliminary matter, the
  State brought a motion in limine to preclude  Carrasquillo from introducing
  evidence that witness Officer Charnley: "(1) has a pending charge of 
  simple assault in which defendant is the alleged victim, and (2) was
  recently terminated from the  Department of Corrections following an
  internal investigation into that alleged simple assault, and  (3) any
  reference to any civil suit that may or may not be pending regarding the
  alleged assault."   Carrasquillo objected to the State's motion, arguing
  that the alleged assault demonstrates the witness'  bias and motive for
  testifying.  He noted, however, that he did not intend to "get into the
  facts" of the  assault.  The State conceded that Carrasquillo would be
  permitted to question Officer Charnley about  "all the sources of bias and
  his anger towards Mr. Carrasquillo" for having stabbed him with the  shank. 
  The court granted the motion in part, and denied it in part, ruling that,
  defense counsel could  inquire on the issue of bias, "without getting into
  the facts of the subsequent incident," and that  defense counsel could  ask
  Officer Charnley "whether or not it's true that Mr. Carrasquillo has made 
  allegations against him regarding a subsequent incident" which could
  subject him to civil and  criminal liability.   

       During trial Carrasquillo was able to fully cross-examine Officer
  Charnley on issues of any  bias or animosity he may have had towards him. 
  Carrasquillo did question Officer Charnley as to  whether he was exposed to
  any criminal and civil liability as a result of the allegations made by 
  Carrasquillo.  At the close of evidence, Carrasquillo moved for a judgment
  of acquittal on both the  kidnapping and attempted escape charge, which was
  denied.  The jury found Carrasquillo guilty of  three out of four charges:
  aggravated assault, kidnapping, and attempted escape.
 
       Carrasquillo argues on appeal that the trial court erred in granting
  the State's motion in limine  and thereby refusing to allow defense counsel
  to cross-examine Officer Charnley about the  circumstances surrounding
  Officer Charnley's purported assault on Carrasquillo.  Carrasquillo cites 
  V.R.E. 608(b), which allows the introduction, on cross-examination, of
  probative evidence of  specific instances of the conduct of a witness to
  prove the witness' character for truthfulness or  untruthfulness, for
  support of the proposition that evidence of Officer Charnley's assault on 
  Carrasquillo would be probative of Officer Charnley's character for
  untruthfulness.   Regardless of  the validity of Carrasquillo's assertion
  that evidence of animosity is probative of one's character for 
  truthfulness, we do not reach the merits of that claim as we hold that
  Carrasquillo failed to preserve  for appellate review his claim that the
  trial court erred by limiting his cross-examination of Officer  Charnley.

       "To properly preserve an issue for appeal a party must present the
  issue with specificity and  clarity in a manner which gives the trial court
  a fair opportunity to rule on it."  State v. Ben-Mont  Corp., 163 Vt. 53,
  61, 652 A.2d 1004, 1009 (1994).  We have recently held that requests by
  counsel  to the court, during a preliminary hearing, on the scope and
  extent of allowable cross-examination  are not "sufficiently concrete for
  appellate review."  State v. Koveos, 169 Vt. 62, 71, 732 A.2d 722,  728
  (1999).  And that where defendant is "[e]ssentially . . . asking to be able
  to administer a test of  hypothetical questions to the trial judge, with
  the consequence of any erroneous answer being that his  conviction is
  reversed because defendant might have offered the evidence described in the 
  hypothetical," defendant's hypothetical questions are neither an offer of
  proof nor a ruling on specific  evidence for purposes of appellate review. 
  Id. (emphasis in original).  Failure to make an 

 

  offer of proof to permit excluded evidence on this basis at trial precludes
  us from reaching this issue  on appeal.  See id.

       At the hearing on the motion in limine defendant Carrasquillo engaged
  in a colloquy with the  court on the scope of allowable cross examination. 
  Defense counsel argued that the subsequent  assault on defendant by the
  witness was evidence of the degree of animosity and bias held by the 
  witness against defendant and for that reason, he should be allowed to
  develop this evidence during  cross examination of the witness.  The court
  ruled that defendant would be allowed to inquire on the  issue of bias, but
  without getting into the facts of the subsequent incident.  Defense counsel
  then  proceeded to inquire whether certain questions could be pursued,
  specifically, if he could ask the  witness if he'd been charged with a
  crime as a result of the alleged assault or whether he'd been  dismissed
  from employment.  The court ruled he could not.  Counsel made no objections
  to these  limitations.  Although counsel initially objected to the motion
  in limine, the court ruled that it would  be granted only in part, and
  defendant failed to object to the limitations the court actually imposed.  
  As we said in Koveos, questions to the court about the scope of its ruling
  are not objections.   Because defendant never sought permission to develop
  the facts of the alleged assault, and was  granted permission to question
  the witness as to the existence and potential consequences of  allegations
  made against him, and because defendant never objected to the court's
  ruling on the two  hypothetical questions posed, he has not preserved these
  rulings for appellate purposes.  

       Under circumstances where defendant failed to preserve an issue for
  appeal, we can review  the trial court's disputed evidentiary rulings only
  for plain error.  See id., at 69, 732 A.2d  at 727.   Plain error exists
  only in exceptional circumstances where a failure to recognize it would
  strike at the  heart of defendant's constitutional rights or result in a
  miscarriage of justice. State v. Mears, 170 Vt.  336, 341, 749 A.2d 600,
  604 (2000).  The error must not only affect substantial rights, but also
  have  an unfair prejudicial impact on the jury's deliberations. Id.  Here
  the fact that Carrasquillo stabbed  Officer Charnley in the head was
  undisputed and clearly established a motive for Charnley to want 
  Carrasquillo punished.  We do not believe any additional motive supplied by
  Charnley's testimony on  criminal proceedings is significant enough to show
  plain error.

       Carrasquillo's second argument on appeal is that the evidence does not
  demonstrate that  Nurse Brannagan was restrained for a "substantial
  period," as required under Vermont kidnapping  statutes.  The evidence,
  argues Carrasquillo, is therefore insufficient as a matter of law to
  sustain a  conviction for kidnapping.  On appeal, we review the denial of
  the motion for acquittal pursuant to  V.R.Cr.P 29 to determine "whether,
  taking the evidence in the light most favorable to the state and  excluding
  modifying evidence, the state has produced evidence fairly and reasonably
  tending to show  the defendant guilty beyond a reasonable doubt."  State v.
  Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37  (1995) (quoting Reporter's Notes,
  V.R.Cr.P. 29).

       Under Vermont law, a person commits the crime of kidnapping if the
  person: 

    (1) knowingly restrains another person with the intent to:	     
      (A) hold the restrained person for ransom or reward; or 
      (B) use the restrained person as a shield or hostage; or

 

     (C) inflict bodily injury upon the restrained person or place  the
    restrained person or a third person in fear that any person  will
    be subjected to bodily injury; or  
     (D) sexually assault the restrained person or place the  restrained 
    person or a third person in fear that any person will  be sexually 
    assaulted; or 
     (E) facilitate the commission of another crime or flight thereafter

  13 V.S.A. § 2405(a).  Carrasquillo was charged and convicted under a theory
  of accomplice liability  with intent to "inflict bodily injury upon the
  restrained person or place the restrained person or a third  person in fear
  that any person will be subjected to bodily injury." Id. § 2405(a)(1)(C). 
  "Restrain" is  defined in the statutes as "restrict[ing] substantially the
  movement of another person without the  person's consent or other lawful
  authority by . . . (C) confining the restrained person for a substantial 
  period either in the place where the restriction commences or in a place to
  which the person has been  moved."  Id. § 2404(3). 

       The kidnapping occurred when another inmate grabbed Nurse Brannagan,
  on Carrasquillo's  order to "get her," and held her with a weapon to her
  throat during the escape attempt. (FN1)  Nurse  Brannagan testified she was
  held by the inmate for ten minutes during which she feared for her own 
  physical safety.  Another officer testified that the entire  incident
  lasted two to three minutes.   Carrasquillo maintains the amount of time
  Nurse Brannagan was restrained does not amount to a  "substantial period"
  as required by the definition of "restrain" in 13 V.S.A. § 2404(3)(C).  We
  have  never ruled whether such a short period of confinement falls within
  the statutory definition of  "restrain" under 13 V.S.A. § 2404(3)(C) such
  that it may support a kidnapping conviction.  See State  v. Petruccelli,
  170 Vt. 51, 57, 743 A.2d 1062, 1067 (1999) (kidnaping conviction upheld; 
  confinement lasted one and a half hours); State v. Washington, 166 Vt. 600,
  601, 691 A.2d 583, 584  (1997) (mem.) (kidnapping conviction upheld;
  confinement lasted approximately 30 minutes); State  v. Lang, 164 Vt. 598,
  599, 664 A.2d 267, 268-69 (1995) (mem.) (kidnapping conviction upheld 
  where actual confinement of victim lasted fifteen minutes).  We find that
  when coupled with the  circumstances present in the restraint of Nurse
  Brannagan, the time involved here is sufficient to  support appellant's
  conviction for kidnapping under 13 V.S.A. § 2405(a)(1).

       We have previously relied on State v. La France, 569 A.2d 1308 (N.J.
  1990), for the  proposition that one is confined for a substantial period
  if that "confinement is criminally significant  in the sense of being more
  than merely incidental to the underlying crime."  Id. at 1313 (internal 
  citation omitted).  Whether a confinement is sufficiently substantial to
  support a kidnapping  conviction depends upon a "qualitative" analysis of 
  the factors surrounding the confinement. Such  factors relevant to this
  analysis include:  (1) whether the detention significantly increases the 
  dangerousness or undesirability of the defendant's behavior, id., (2)
  whether the detention occurred 

 

  during the commission of a separate offense, and (3) whether the detention
  created a significant  danger to the victim independent of that posed by
  the separate offense, id. at 1310.  For example, in   Lang, we found that
  because certain factors existed which enabled the assailant to accomplish
  the  confinement through threats and intimidation, those factors
  contributed to the finding that despite a  brief period of confinement,
  there was sufficient evidence to support a  kidnapping conviction.  164 
  Vt. at 598-99, 664 A.2d  at 268 (evidence sufficient to support kidnapping
  conviction where  defendant accosted frail, elderly victim at night, in her
  own home, wearing a ski mask, while  demanding money of her, and refusing
  to let her leave her bedroom).  The focus, therefore, is on the  quality
  and nature of the restraint rather than just on duration.  Wofford v.
  State, 867 S.W.2d 181,  183 (Ark. Ct. App. 1993).  Here, Carrasquillo's
  accomplice restrained Nurse Brannagan with a  weapon to her throat during a
  highly volatile and dangerous situation, thereby placing her in fear of 
  bodily injury.  Additionally, there was evidence presented that another
  officer delayed assisting  Officer Charnley because of fear that Nurse
  Brannigan would be subjected to bodily injury.   Restraining or confining
  someone is not an essential or inherent component of an escape attempt and 
  doing so only increased the level of risk and "dangerousness" of
  Carrasquillo's action.  Confinement  of Nurse Brannagan was, therefore, not
  incidental to the attempted escape once she was put in a  hostage situation
  and threatened with physical harm.  We thus find, that upon examination of 
  qualitative factors surrounding the restraint, the period of confinement
  was "substantial" enough to  support a kidnapping conviction under 13
  V.S.A. § 2405(a)(1)(C).  

       Affirmed.	


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  There was conflicting evidence whether Carrasquillo's accomplice
  used a razor blade or  some other weapon while restraining Nurse Brannagan. 
  No razor blade was ever found.  The  following day, however, a maintenance
  worker found shanks "jammed" into the vent of the inmates'  cell.