State v. Prior

State v. Prior (2000-441); 174 Vt. 49; 804 A.2d 770

[Filed 24-May-2002]


       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. 2000-441


State of Vermont	                         Supreme Court

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

Glenn Prior	                                 March Term, 2002


David A. Howard, J.

Dan M. Davis, Windham County State's Attorney, and Christopher C. Moll and 
  Tracy Kelly Shriver, Deputy State's Attorneys, Brattleboro, for 
  Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Henry Hinton, Appellate Attorney, 
  Montpelier, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       JOHNSON, J.  Defendant appeals from his conviction for aggravated
  domestic assault,  simple domestic assault, disturbing the peace, and
  arson, following a jury trial.  Defendant claims 1)  that the court erred
  in denying his motion to dismiss in the interests of justice; 2) that the
  state  presented insufficient evidence that a knife used during one of the
  assaults was a "deadly weapon;"  and 3) that the court erred in admitting
  allegations of abusive behavior in an earlier marriage.  We  affirm.

       These charges arise from a series of confrontations between defendant
  and his wife on and  around February 21, 1998.  The couple got into a
  verbal fight that day, which quickly escalated to  physical confrontation,
  in which defendant punched his wife in the ribs.  The next day, defendant 

 

  threatened his wife with a knife while she was packing to leave with the
  couple's children.  After she  left to spend the night at a friend's house,
  defendant burned several of his wife's personal items in  their front yard,
  and made a threatening telephone call to another person.

       Defendant was initially tried on these charges in the fall of 1999,
  but the trial resulted in a  hung jury.  After a second trial in May 2000,
  defendant was convicted.  At trial, the principal dispute  was not whether
  defendant engaged in the alleged conduct, but whether he was criminally 
  responsible for it, because defendant alleged that he was insane at the
  time, suffering from a brief  psychotic disorder.

       Defendant's first claim on appeal is that the court erred in failing
  to grant his motion to  dismiss in the interests of justice pursuant to
  V.R.Cr.P. 48(b).  Rule 48(b)(2) provides that the trial  court may dismiss
  the indictment or information "[i]f the court concludes that such dismissal
  will  serve the ends of justice and the effective administration of the
  court's business."  The motion, filed  after the mistrial, was accompanied
  by an affidavit of the wife stating that she supported dismissal  because
  of the emotional and financial hardship a second trial would cause her and
  her family.  The  court denied the motion, holding that the reasons
  identified by defendant, namely the emotional and  financial toll that a
  second trial would impose, do not outweigh the public's interest in the
  proper  resolution of the case by a jury.  Defendant claims that this
  conclusion was in error because the court  identified many factors that
  weighed in favor of granting the motion, and that it improperly relied on 
  its concern for public appearances in denying the motion.

       The proper inquiry for a motion brought under V.R.Cr.P. 48(b) was
  explained in State v.  Sauve, 164 Vt.134, 666 A.2d 1164 (1995).  In that
  case, we identified a multi-factored analysis that  courts should undertake
  to determine whether dismissal is appropriate.  Id. at 140-141, 666 A.2d  at 
  1168.  These factors include the seriousness and circumstances of the
  charged offense; the extent of 

 

  harm resulting from the offense; the length of any pretrial incarceration;
  the impact of dismissal on  public confidence in the judicial system; and
  the attitude of the complainant or victim with respect to  dismissal of the
  case.  Id.  The court's balancing of these factors is an exercise of its
  broad discretion.  We will reverse a court for abuse of discretion only
  where the court has "entirely withheld its  discretion or where the
  exercise of its discretion was for clearly untenable reasons or to an
  extent that  is clearly untenable."  State v. Fitzpatrick, __ Vt. __, __,
  772 A.2d 1093, 1097 (2001) (internal  quotations omitted).

       There is no abuse of discretion.  The court's decision carefully
  considered all of the factors as  they relate to this case.  In support of
  his argument, defendant emphasizes that the victim,  defendant's wife,
  opposed continuing the prosecution, and indeed, the trial court recognized
  this fact.  That the court did not base its entire decision on that one
  factor, however, does not indicate an abuse  of discretion - nor does the
  fact that the court did consider the public interest in resolving the case
  by  a jury rather than a judge.  Both of these factors are relevant to the
  court's determination.  It is  precisely because the court's decision
  requires balancing these factors, as well as others, that we  defer to the
  trial court's sound exercise of its discretion.  Here, the court carefully
  reviewed all the  factors and arrived at a reasoned conclusion.  The court
  did not err in denying the motion to dismiss.

       Defendant next claims that the court erred in denying his motion for
  judgment of acquittal,  pursuant to V.R.Cr.P. 29, on the basis that there
  was insufficient evidence that the knife used in the  assault was a deadly
  weapon to support conviction for aggravated domestic assault.  Defendant
  was  charged with aggravated domestic assault, which is defined as one who
  "uses, attempts to use or is  armed with a deadly weapon and threatens to
  use the deadly weapon on a family or household  member."  13 V.S.A. §
  1043(a)(2).  A "deadly weapon" is in turn defined as, "any firearm, or
  other  weapon, device, instrument, material or substance, whether animate
  or inanimate which in the 

 

  manner it is used or is intended to be used is known to be capable of
  producing death or serious  bodily injury."  Id. § 1021(3).  Defendant's
  argument hinges on the fact that the knife itself was not  entered in
  evidence, and that the State instead relied entirely on the victim's
  testimony to prove this  element of the crime.

       There is no error.  Our inquiry on review of a V.R.Cr.P. 29 motion is
  "whether the evidence,  when viewed in the light most favorable to the
  State and excluding any modifying evidence, fairly  and reasonably tends to
  convince a reasonable trier of fact that the defendant is guilty beyond a 
  reasonable doubt."  State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527
  (1999) (internal  quotations omitted).  We need only recount the victim's
  testimony about the knife to rebut  defendant's claim.  At trial, the
  victim testified that defendant "out of the blue appeared with a  knife." 
  After the victim described the knife as a folding knife that she recognized
  from defendant's  auto body shop, she testified that "he lifted it [the
  knife] up and put it by my neck . . . for like two  seconds," then "he
  pulled it back and he said you've got to get the hell out of here or I'm
  going to  kill you."  This evidence was sufficient for a reasonable trier
  of fact to conclude that defendant  assaulted his wife with a weapon
  "capable of producing death or serious injury."  13 V.S.A. §  1021(3).  See
  State v. Sanders, 168 Vt. 60, 61, 716 A.2d 11, 12 (1998) (affirming
  conviction for  aggravated domestic assault where defendant brandished
  knife and threatened to kill girlfriend); see  also State v. Brown, 646 N.E.2d 838, 842 (Ohio Ct. App. 1994) (holding that evidence was sufficient 
  to sustain conviction for assault with a knife where defendant held knife
  to victim's neck and  threatened her, but did not inflict physical harm
  with the knife); Skinner v. State, 33 P.3d 758, 768  (Wyo. 2001) (affirming
  conviction for aggravated domestic assault where defendant threatened to 
  kill girlfriend while brandishing knife).  Defendant's arguments that
  expert testimony and physical  evidence are necessary to establish that the
  knife was a deadly weapon are unpersuasive.

 

       Finally, defendant claims it was prejudicial error for the court to
  admit allegations of abusive  behavior by defendant in a marriage that
  ended twenty years before the trial of this case, and that the  error was
  exacerbated by the State's improper use of the evidence in closing
  argument.  

       The State first sought the introduction of evidence of similar
  violence in defendant's first  marriage by a notice of intent to rely on
  evidence pursuant to V.R.E. 404(b).  The evidence was to be  offered
  through defendant's former wife, Karlene Karpinski, to prove intent and
  absence of mistake,  and to rebut defendant's mental status defense.  The
  court deferred ruling on the admissibility of that  evidence until after
  the State rested.  At that time, the court decided that evidence of violent
  acts by  defendant in his first marriage was admissible, but through each
  side's expert on insanity.  (FN1)  The court reasoned that an insanity
  defense necessarily opened up some issues that might otherwise  be
  excluded, including prior bad acts, as long as the evidence is relevant. 
  Accord United States v.  Whitetail, 956 F.2d 857, 863 (8th Cir. 1992)
  (evidence of prior bad acts admissible where murder  defendant put her
  state of mind at issue as a defense).  Because the domestic violence
  context was  similar, the experts had been made aware of the allegations
  and each had considered them and dealt  with them in their analyses, the
  court found there was probative value to allowing inquiry into the 
  expert's knowledge of the facts and how they related to their diagnoses. 
  The court further found that  the probative value outweighed the
  prejudicial effect.  We review the trial court's decision to admit 
  evidence for abuse of discretion.  State v. Crannell, 170 Vt. 387, 392, 750 A.2d 1002, 1008 (2000).  There was no abuse of discretion. 

       Defendant claims first that it was unreasonable for Dr. Cotton, the
  State's psychiatrist, to rely  on the allegations of misconduct in
  defendant's first marriage because it is not evidence reasonably 

 

  relied upon by experts in the field, in violation of V.R.E. 703. 
  Specifically, defendant contends that  the incidents had no relation to Dr.
  Cotton's diagnosis of paranoid personality disorder, that the  evidence was
  remote and of dubious validity, and did not come from defendant himself. 

       The evidence came in first through defendant's psychiatrist, Dr.
  Bursztajn, who concluded  that defendant had suffered a brief psychotic
  episode that rendered him legally insane at the time of  the crime.  Dr.
  Bursztajn had considered the allegations of abuse by defendant's former
  wife, taking  the allegations as true for the purpose of determining his
  diagnosis.  But, Dr. Bursztajn refused to  give them "undue weight" because
  of other allegations suggesting defendant's first marriage was  marked by
  substance abuse and violence on both sides.  Although defendant attempts to
  cast Dr.  Bursztajn's testimonial reference to the prior bad acts as
  compelled by the court's ruling, it is  apparent from the testimony that
  consideration of the evidence, despite his ultimate rejection of it as 
  significant, was important to his overall conclusion and part of the
  explanation of his opinion.  See  Rogers v. United States, 483 A.2d 277,
  289 (D.C. 1984) (where defense was insanity, evidence of  prior arrests
  admissible through expert witness to show basis for diagnosis and
  opinions). 

       In fact, although their conclusions differed, both Dr. Bursztajn and
  Dr. Cotton found  defendant's life history, including the events of his
  first marriage, to be relevant information.  Dr.  Cotton concluded that
  defendant suffered from paranoid personality disorder, which is found in
  the  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)
  at 637-638, a condition, in the  opinion of Dr. Cotton, that defendant had
  been suffering from for over thirty years, encompassing  the time of
  defendant's first marriage.  Dr. Cotton testified that the previous
  incidents of violence  were important to his assessment that defendant had
  not suffered a brief psychotic episode and to his  ultimate conclusion that
  defendant was sufficiently in control of his behavior at the time of the 
  domestic assault on his second wife to conform his conduct to the
  requirements of the law.  

 

       We had occasion to consider the admissibility of prior bad acts in the
  context of a  psychiatrist's testimony in State v. Percy, 149 Vt. 623,
  640-41, 548 A.2d 408, 418-19 (1988).  In  Percy, we recognized that when
  the defendant puts his sanity in issue, the inquiry "may take a very  wide
  range . . . . Broadly speaking, his whole life may be canvassed for
  evidence bearing upon the  question; and his ancestry and family history
  may be investigated" 149 Vt. at 640, 548 A.2d  at 418  (quoting State v.
  Warner, 91 Vt. 391, 392, 101 A. 149, 150 (1917)).  Evidence of a life
  history is not  automatically excluded because it includes prior bad acts
  that might otherwise be excluded under  V.R.E. 404(b), because 404(b) does
  not apply if the evidence is offered for a purpose other than to  show
  defendant's character. (FN2)  See State v. Hurles, 914 P.2d 1291, 1297
  (Ariz. 1996) (when  defense is insanity, the facts and circumstances
  surrounding all prior acts are relevant to "throw light  one way or the
  other upon the issue of [defendant's] sanity") (internal quotations
  omitted); Shepherd  v. State, 547 N.E.2d 839, 841 (Ind. 1989) ("Evidence
  which might otherwise be inadmissible  becomes admissible when there is a
  question as to the accused's sanity.").  Here, as in Percy, the  prior acts
  evidence came in entirely through the examination of the two psychiatrists
  to show the  basis and explanation of their opinions, and the court weighed
  the probative value versus the  prejudicial effect.  The evidence was
  relevant on the issue of sanity and used for a purpose other than  one
  prohibited by V.R.E. 404(b).  See Percy, 149 Vt. at 641, 548 A.2d  at 418.  

       Defendant argues his case is different, however, because unlike the
  diagnosis of anti-social  personality disorder in Percy, which required
  evidence of repeated unlawful acts to meet the  diagnosis, Dr. Cotton's
  diagnosis of paranoid personality disorder included "no such diagnostic 

 

  criterion."  Despite the facts of Percy, there is no requirement in our
  rules that unlawful prior bad  acts must be listed in the diagnostic
  criteria of a mental illness before evidence of them may be  admitted in
  support of a doctor's opinion.  The relevance of such acts is judged,
  rather, by whether  the information is "of a type reasonably relied upon by
  experts in the particular field in forming  opinions."  V.R.E. 703; Percy,
  149 Vt. at 641, 548 A.2d  at 418.  As Dr. Cotton explained in his 
  testimony, a person's history and life experience, past behaviors,
  witness's statements, old medical  records, school records and work records
  are all relevant when performing a forensic evaluation.   Moreover, Dr.
  Cotton's diagnosis of paranoid personality disorder required him to find
  that  defendant had a longstanding difficulty in coping with life.  By
  necessity, then, Dr. Cotton's  evaluation of information about defendant
  had to include more than a consideration of the most  recent events in
  defendant's life, and he had to be able to explain the relevance of prior
  events to his  conclusion on sanity.  There was no violation of V.R.E. 703. 
  See State v. Odiaga, 871 P.2d 801, 806  (Idaho 1994) (evidence of prior
  drug use admissible when evidence was part of the basis of  psychiatrist's
  opinion on defendant's mental status); State v. Slocumb, 521 S.E.2d 507,
  514 (S.C. Ct.  App. 1999) (where defense was insanity, state could properly
  question defense psychiatric expert on  defendant's previous mental health
  records where those records formed the basis of expert's  opinion).

       Lastly, defendant argues that the allegations of violence in the first
  marriage were not told to  Dr. Cotton by him, but by others, and that the
  allegations were contested.  Much of the volumes of  information that Dr.
  Cotton reviewed, in addition to his examination of defendant, included 
  information with which defendant would undoubtedly disagree or justify.  It
  is well established,  however, that an expert may rely on hearsay evidence
  to form his opinion even if that hearsay is not  independently admissible
  for its substance.  V.R.E. 703; Keus v. Brooks Drugs, Inc., 163 Vt. 1, 4, 

 

  652 A.2d 475, 478 (1994).  The major limitation on this rule is that the
  hearsay statements must be  of a type reasonably relied on by experts in
  the particular field.  Id.  Defendant provides no support  for his
  allegation that psychiatrists do not routinely use statements from a
  patient's acquaintances in  forming their opinions.  Indeed, the use of
  sources other than the patient is common.  E.g., Rogers,  483 A.2d  at 289
  (expert psychiatrists "based their opinions on lengthy interviews with
  [defendant]  and . . . as described by others in affidavits").  Defendant
  had the opportunity to cross-examine the  State's expert and cast doubt on
  the relevance and accuracy of the information relied on by the 
  psychiatrist.  He also presented his own psychiatrist to discredit Dr.
  Cotton's opinion.  To the extent  that Dr. Cotton relied on evidence that
  occurred remotely in time or in a factually different setting,  those "are
  all matters to be weighed by the jury."  Shepherd, 547 N.E.2d  at 841. 
  Because there was  no error in admitting the testimony, the prosecutor was
  entitled to refer to it in discussing Dr.  Cotton's opinion in closing
  argument.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  The court deferred ruling on Karpinski's testimony until hearing from
  the experts, but  subsequently refused to permit further testimony on the
  subject.

FN2.  In any event, V.R.E. 404(b)'s protections against the admission of
  character evidence to  show that a defendant "acted in conformity
  therewith" are irrelevant where the defense is not  contesting that alleged
  acts occurred, but instead is claiming that he is not criminally
  responsible for  his behavior.  See Rogers, 483 A.2d  at 288.