State v. Baird

Annotate this Case

State v. Baird (2004-509); 180 Vt. 243; 908 A.2d 475

2006 VT 86

[Filed 25-Aug-2006]

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.

2006 VT 86

No. 2004-509

State of Vermont Supreme Court

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

Cynthia Baird October Term, 2005

Theresa S. DiMauro, J.

William H. Sorrell, Attorney General, and David Tartter, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee.

Peter F. Langrock and Devin McLaughlin of Langrock Sperry & Wool, LLP,
Middlebury, for Defendant-Appellant.

PRESENT: Dooley, Johnson, Skoglund and Burgess, JJ., and
Allen, C.J. (Ret.), Specially Assigned

¶ 1. SKOGLUND, J. Defendant was convicted of second-degree murder
after a jury trial in Rutland District Court. The district court denied
her motions for judgment of acquittal and a new trial and sentenced her to
a term of imprisonment of twenty years to life. She now appeals, arguing
that the court erred in denying her post-trial motions because: (1) the
State presented inconsistent theories of guilt and thus failed to prove its
case beyond a reasonable doubt; (2) the court erroneously admitted
testimony that defendant told a witness that she would like to shoot her
husband; and (3) the jury instructions regarding circumstantial evidence
were improper. Defendant also argues that her sentence must be vacated
because: (1) the court erred in its assessment of the aggravating and
mitigating factors set forth in 13 V.S.A. § 2303(d)-(e); and (2) the court
penalized her for exercising her right to a jury trial by considering her
lack of acceptance of responsibility during sentencing. Finally, defendant
argues that the court incorrectly rejected her application to require the
court or the State to pay for the trial transcript. We affirm in all
respects.

¶ 2. The evidence at trial revealed the following. On December 2,
2000, defendant and her husband, Douglas Baird, had dinner together in
Rutland. After dinner, they walked to another nearby eatery, where, after
several drinks each, they had a disagreement loud enough to catch the
staff's attention. Eventually, Mr. Baird, who appeared aggravated, walked
out and left defendant behind to pay the tab. Defendant drove the two of
them back to their home in Poultney because Mr. Baird was too intoxicated
to drive.

¶ 3. At 12:21 a.m. on December 3, 2000, the Vermont State Police
dispatcher in Rutland received a 911 call from defendant, who was screaming
hysterically that her husband had shot himself. Officer Dale Kerber, a
special officer for the Town of Castleton, was the first to arrive on the
scene. He testified that he found defendant in a "hysterical" state,
standing in the doorway holding a telephone, pointing into the house, and
shouting that her husband had just shot himself. Officer Kerber entered
the house and turned in the direction defendant was pointing, where he
found a door cracked open directly in front of him. Drawing his service
weapon, he approached the door. In order to open it, he had to push away
some pillows or bedding that had been placed against the other side of the
door. Upon entering the room, he saw a man lying on the bed with his eyes
shut and blood around his head. Officer Kerber observed no breathing
movement or other signs of life. Defendant remained directly behind
Officer Kerber as he scanned the room. He testified that defendant went
silent when he drew his gun and resumed her "crying" and "hysteria" once he
re-holstered it.

¶ 4. Officer Kerber then went into the living room with defendant,
who appeared "very hysterical." Defendant sat on a couch and, as Officer
Kerber went to sit on an adjacent coffee table, he nearly sat on a sharp
wool-carding tool. He testified that defendant, who had been extremely
agitated, "very calmly and very politely apologized" for leaving the tool
out and then resumed her hysterics. Several rescue workers on the scene
that night also testified that they looked at defendant's face and did not
observe tears during the time that she was hysterical. After Officer
Kerber spent some time with defendant and was unable to calm her down, she
agreed to go to the hospital to see a crisis counselor.

¶ 5. Meanwhile, the police processed the scene of the shooting.
They found Mr. Baird's body lying supine on the bed, his head on the pillow
and arms at his sides. Blood had pooled on the pillow and sheet below the
gunshot entry wound on the right side of his head but nowhere else. There
were two guns found in the room: an unloaded Taurus .357 revolver with a
six-inch barrel on a night stand on the side of the bed farthest from the
deceased, and a small .22 automatic on the floor. In searching the house,
the police found another Taurus .357, this one with a four-inch barrel, in
a case in the closed bottom drawer of a bureau in an upstairs room. This
gun had a full cylinder containing five live .38 caliber cartridges and one
empty cartridge case.

¶ 6. The medical examiner testified that Mr. Baird had died in the
position in which he was found from a single gunshot wound to the right
side of his head. The bullet passed through the cerebral cortex, resulting
in instant unconsciousness, and lodged in the left side of the skull. The
metallic composition of the bullet matched that of the unfired cartridges
in the cylinder of the four-inch Taurus found in the upstairs bureau
drawer. In addition, a small stain on the inside of the four-inch Taurus's
barrel was tested for DNA, yielding a pattern that matched Mr. Baird's DNA.

¶ 7. Both defendant and Mr. Baird were tested for gunshot residue
(GSR). The State's GSR expert testified that, although he could not
conclude based on the GSR who shot Mr. Baird, the amount of GSR found on
Mr. Baird was not consistent with a self-inflicted wound. The expert
observed a video of the processing of the crime scene and testified that
the movements of Mr. Baird's body by personnel at the scene would not have
caused significant shedding of GSR particles. No GSR was found on
defendant's hands. The expert testified that two to five hours of normal
activity would shed all detectable GSR particles from a person's hands;
defendant's hands were tested more than seven hours after she called 911.

¶ 8. Defendant did not testify at trial. Thus, the only testimony
concerning the events that transpired between the time the couple left the
restaurant and defendant's 911 call came from the statements defendant made
to the police after they arrived on the scene, later at the hospital, and
the following day. The State elicited testimony regarding defendant's
version of what happened from law enforcement personnel who interacted with
defendant and offered into evidence audiotapes of two police interviews of
defendant, one conducted at the hospital after defendant was taken there
from the scene of the shooting and the other conducted at her home two days
later. Both tapes were admitted and played for the jury, and a transcript
of the hospital interview was admitted as well.

¶ 9. In sum, defendant told the police that Mr. Baird shot himself
after she walked into the bedroom with an unloaded gun and tried to get his
attention by threatening to kill herself. She explained that they had
continued discussing things that were bothering each of them after
returning home from having dinner and drinks. Mr. Baird eventually ended
the conversation by getting up and saying he was going to bed because he
was going hunting in the morning. Defendant said she "felt like he was
cutting me off," so she went upstairs and got the four-inch Taurus
revolver. As she walked into the bedroom, she said: "I should take this
frigging thing I should blow my brains out." She claimed that her husband
then reached into a drawer in the bedside table, pulled out a gun, and,
without a word, shot himself in the head. At that point, she told the
police, she "saw the blood, freaked, ran to my desk and called 911."

¶ 10. Later, when interviewed at the hospital, she told the
detective that she was not sure she was in the room when her husband shot
himself but that she "never saw him shoot the gun." She gave several more
inconsistent accounts of whether she observed him shoot himself or not.

¶ 11. On February 13, 2004, the jury returned a verdict of guilty on
the single charge of second-degree murder. Defendant filed motions for
acquittal and a new trial under Vermont Rules of Criminal Procedure 29 and
33, respectively, and the court denied both. The court sentenced defendant
on November 3, 2004, imposing a term of imprisonment of twenty years to
life. Defendant then filed the instant appeal.

I.
A.

¶ 12. Defendant claims that her conviction must be reversed because
the State failed to prove its case beyond a reasonable doubt. More
specifically, she argues that the State's case is internally inconsistent
because if she "had murdered her husband and wanted it to look like a
suicide, she would have put the weapon in his hand, not upstairs."
Therefore, she argues, the only way the jury could have reached a guilty
verdict was through speculation and unsupportable inferences from the
evidence. It does not matter, however, if some of the evidence appeared
inconsistent to the State's theory. What matters is whether the State
presented sufficient evidence to support the jury's finding of guilt beyond
a reasonable doubt. The State is not required to explain a defendant's
illogical behaviors. Because the facts of the case support the verdict, we
reject defendant's argument and affirm her conviction.

¶ 13. With respect to defendant's claim that the evidence was
insufficient to support the verdict, this Court will review the evidence
presented by the State "viewing it in the light most favorable to the
prosecution and excluding any modifying evidence, and determine whether
that evidence sufficiently and fairly supports a finding of guilt beyond a
reasonable doubt." State v. Grega, 168 Vt. 363, 380, 721 A.2d 445, 457
(1998). When reviewing a case based largely on circumstantial evidence,
the evidence "must be considered together, not separately," even if
defendant can explain each individual piece of evidence in a way that is
inconsistent with guilt. Id. "In assessing circumstantial evidence, the
fact-finder may draw rational inferences to determine whether the disputed
ultimate facts occurred." State v. Durenleau, 163 Vt. 8, 12, 652 A.2d 981,
983 (1994). To survive a motion for acquittal, "[t]he evidence and
inferences, however, must add up to more than mere suspicion; the jury
cannot bridge evidentiary gaps with speculation." Id. at 12-13, 652 A.2d
at 983. Finally, we have expressly declined to "fashion a hard and fast
rule regarding the sufficiency of evidence in a circumstantial case.
Rather, each case must be based on its own facts and circumstances, and a
judgment of acquittal is proper only if the prosecution has failed to put
forth any evidence to substantiate a jury verdict." State v. Couture, 169
Vt. 222, 226, 734 A.2d 524, 527 (1999).

¶ 14. A careful review of the evidence reveals that the State met
its burden in this case. First, the evidence adduced at trial allowed the
jury to properly conclude Mr. Baird was lying in the bed on his back when
he was shot. For example, there was evidence that blood had pooled on the
pillow and sheet under the gunshot entry wound, suggesting that the
position of Mr. Baird's body did not change appreciably after the shooting,
and the medical examiner concluded that Mr. Baird died in the supine
position in which he was found. On the other hand, there was no evidence
that blood was found in any location consistent with Mr. Baird being shot
while sitting up, as defendant described in at least one statement, or
while grabbing a gun from the bedside table and moving back towards the
bed.

¶ 15. Additionally, the jury heard that there was some blood spatter
on the right top of Mr. Baird's shoulder area and that the detective who
inspected Mr. Baird's body found no blood spatter on Mr. Baird's hands.
Further, the GSR expert testified that the amount of residue found on Mr.
Baird's hands was inconsistent with him having shot himself. These facts,
combined with the evidence concerning the position of the victim's body at
the time of the shooting, supported the conclusion that Mr. Baird did not
shoot himself.

¶ 16. The State also presented testimony from friends and family of
Mr. Baird who indicated that, in the days and weeks prior to his death, he
was upbeat, in good spirits, and excited about the new job he had recently
secured. Although there was testimony concerning defendant's
dissatisfaction with her relationship with Mr. Baird as well as evidence
that the couple had a heated exchange on the night of the shooting, the
jury could have reasonably concluded that Mr. Baird did not want or attempt
to take his own life.

¶ 17. Taken together, the evidence summarized above fairly and
sufficiently allowed the jury to conclude that Mr. Baird did not shoot
himself. At that point, the jury could have permissibly inferred that
defendant shot Mr. Baird, because there was no evidence that anyone other
than Mr. Baird or defendant was in their home that night. Moreover, the
State adduced additional evidence directly supporting this conclusion. For
example, the State demonstrated that Officer Kerber, the first responder to
arrive at the Bairds' home, had to push several pillows out of the way as
he opened the door of the bedroom in which he found Mr. Baird, and the
television in the living room had been turned up to a high volume. From
those facts, the jury could reasonably conclude that defendant had
attempted to muffle and mask the sound of the gunshot.

¶ 18. The State also offered evidence that police found the gun that
fired the bullet recovered from Mr. Baird's head in the closed bottom
drawer of a bureau in an upstairs room of the Bairds' home. In addition to
the ballistics evidence that that gun had fired the bullet removed from Mr.
Baird, testing of a small stain found on the inside of the gun's barrel
yielded a pattern matching Mr. Baird's DNA. Thus, there was strong support
to conclude that the upstairs gun was the weapon used to kill Mr. Baird.
As there was no other explanation, the jury could reasonably conclude that
defendant took the gun from the scene of the shooting and placed it
upstairs. And, as defendant was still on the phone with 911 when the
police arrived, it was reasonable to conclude that the gun had been placed
upstairs in the case before defendant made the call. Although, as
defendant argues, that fact alone is not inconsistent with Mr. Baird having
shot himself, when viewed, as it must be on appeal, along with the other
evidence, it supports the conclusion that defendant shot Mr. Baird.

¶ 19. Significantly, we note that the evidence discussed above does
not include most of the evidence defendant attempts to discount in her
argument on appeal. For example, the above analysis does not depend on the
GSR expert's inability to conclude who fired the shot, the inconsistent
statements defendant made about the night of the shooting, the small
amounts of blood found on a towel and a t-shirt, or the evidence concerning
defendant's motive.(FN1) We therefore disagree with defendant that the
evidence here, considered as a whole, equally supports guilt or innocence.

¶ 20. Finally, defendant argues that the State did not meet its
burden to disprove her claim that her husband committed suicide. As the
trial court instructed the jury, the State had to prove "that Douglas
Baird's life ended by means other than natural causes, accident or
suicide." Seizing on this instruction, defendant asserts that if she had
fabricated her claim that Mr. Baird shot himself, she never would have
removed the gun that fired the shot from the scene of the shooting. Thus,
she reasons, the only logical conclusion the jury could have drawn from the
fact that she moved the gun is that Mr. Baird shot himself.

¶ 21. The argument fails for two reasons. First, in light of the
evidence summarized above, the notion that Mr. Baird shot himself is
incredible on its face. The defense claim was that he suddenly committed
suicide, without saying a word, without any provocation, with no prior
indication of suicidal thinking or unhappiness with life, and very shortly
after going to bed with plans to go hunting in the morning. That scenario,
when considered along with the evidence at trial, is so improbable that the
jury could have properly rejected it and concluded that defendant, the only
other person in the house, murdered her husband, moved the gun, and came up
with the suicide explanation to deflect suspicion. Second, the jury was
justified in concluding that Mr. Baird was asleep when he was shot, given
that he was found in bed, lying on his back, unclothed, with his arms at
his sides, and partially covered with bed linens. Additionally, defendant
told the police that, after continuing their argument upon arriving at
their home, Mr. Baird announced he was going to bed and left the room to do
so. Finally, in light of the evidence that Mr. Baird had imbibed a number
of alcoholic beverages that evening and that the medical examiner confirmed
his blood alcohol content at the time of death was .187%, the jury could
have reasonably concluded that Mr. Baird was asleep, and thus unable to
shoot himself, at the time of the shooting.

¶ 22. In sum, the evidence discussed above sufficiently and fairly
supports the jury's determination of guilt beyond a reasonable doubt.
Therefore, the court correctly denied defendant's motion for judgment of
acquittal. It also follows that defendant was not entitled to a new trial
under Rule 33 because the evidence here does not preponderate heavily
against the verdict, and no miscarriage of justice flows from the verdict.
State v. Ladabouche, 146 Vt. 279, 285, 502 A.2d 852, 856 (1985) (stating
that a new trial "should be granted only where the evidence preponderates
heavily against the verdict and a serious miscarriage of justice would
otherwise result," and recognizing that a Rule 33 motion does not allow the
trial court to act as a "thirteenth juror" by granting a new trial simply
because it disagrees with the jury's verdict (quotations omitted)).
Accordingly, the court did not abuse its discretion by denying defendant's
motion for a new trial. See State v. Elkins, 155 Vt. 9, 18, 580 A.2d 1200,
1205 (1990) ("The court's decision on a new trial motion is a matter
committed to the sole discretion of the court and will stand on appeal
unless defendant can show that the court's discretion was either totally
withheld or exercised on grounds clearly untenable or unreasonable."
(quotations omitted)).

¶ 23. Defendant next argues that her conviction must be reversed
because the court erroneously admitted testimony of defendant's accountant,
Phyllis Leavy, that defendant occasionally said to Ms. Leavy that she would
like to shoot her husband. Determining whether evidence is relevant and
whether its prejudicial effect substantially outweighs its probative value
are matters within the sound discretion of the district court, and we will
not overturn such decisions absent an abuse of discretion. State v. White,
172 Vt. 493, 500, 782 A.2d 1187, 1192 (2001). No abuse occurred here.

¶ 24. The challenged testimony consisted of Ms. Leavy's statement
that defendant, on multiple occasions, "said that she was very annoyed with
him and she was going to take a gun and kill him. She'd like to shoot him
. . . ." Ms. Leavy went on to explain that she did not alert anyone to
defendant's statements because defendant "was always annoyed about
something" and because Ms. Leavy "just thought of it as a figure of speech
and not something that I considered seriously at that time."

¶ 25. Defendant argues that Ms. Leavy's testimony was irrelevant
under Vermont Rule of Evidence 401 because occasional expressions of anger
about one's spouse are a natural part of any marriage and Ms. Leavy herself
disclaimed the statements as mere "figure[s] of speech." We disagree. Ms.
Leavy's testimony was relevant to defendant's frame of mind concerning her
husband and her marriage, which in turn provided context for the events on
the night of the shooting.

¶ 26. This conclusion finds support in our caselaw. For example, in
White, we upheld the admission of testimony concerning the defendant's
marital difficulties that was more attenuated than Ms. Leavy's testimony.
The defendant in White was charged with killing a night clerk at a motel
where he had once worked. The murder took place at the motel sometime
after 1:00 a.m., when the clerk was seen working at the desk by some motel
guests. The testimony at issue was delivered by the defendant's co-worker
at another workplace and consisted of statements the defendant made eights
days after the murder about getting a divorce. The trial court admitted
the testimony as relevant to the defendant's state of mind, accepting the
State's theory that the testimony showed that the defendant's marital
situation was "such that he may want to stop off someplace overnight rather
than go[] home." 172 Vt. at 500, 782 A.2d at 1192 (quotations omitted).
We affirmed, stating that "[s]ince the jury knew that defendant was
married, it was appropriate to provide [the jury] with additional
information concerning the state of the marriage, so that defendant's
activities that night would make more sense, and thus be 'more probable . .
. than it would be without the evidence.' " Id. at 500, 782 A.2d at 1193
(omission in original) (quoting V.R.E. 401). Here, because defendant was
charged with the murder of her husband, evidence concerning her attitude
about her marriage and her husband was relevant to provide context
concerning her state of mind.

¶ 27. The fact that Ms. Leavy disclaimed the statements as "figures
of speech" does not render them irrelevant. Because the jury was the
arbiter of witness credibility, it could decide to accept or reject a
witness's opinion concerning the mental state of another person about whom
that witness testifies. Thus, it was free to interpret the statements and
reject Ms. Leavy's interpretation. Therefore, her characterization of the
statements as "figure[s] of speech" does not rob them of their relevance.

¶ 28. Finally, the admission of Ms. Leavy's testimony did not
violate Vermont Rule of Evidence 403, which calls for the exclusion of
relevant evidence "if its probative value is substantially outweighed by
the danger of unfair prejudice." V.R.E. 403. The statements did carry
probative value because, as explained above, they provided context for
defendant's alleged activities on the night of the shooting. Defendant
asserts that the testimony is unduly prejudicial because it invites the
jury to take a "speculative leap." Evidence is unduly prejudicial when
"its primary purpose is to appeal to the jury's sympathies, arouse a sense
of horror, provoke its instinct to punish, or cause the jury to base its
decision on something other than the established propositions of the case."
State v. Crannell, 170 Vt. 387, 402, 750 A.2d 1002, 1015 (2000). Ms.
Leavy's testimony was not unfairly prejudicial. Indeed, on the whole it
was relatively balanced, in that it allowed defendant to argue that
defendant's statements about wanting to shoot her husband were not
perceived by the listener as actual threats of violence. Accordingly, the
district court did not abuse its discretion in admitting Ms. Leavy's
testimony.

¶ 29. Finally, we reject defendant's argument that her conviction
must be reversed because the district court declined to include specific
language in its jury charge on circumstantial evidence. During the charge
conference, defendant requested that the court include the following
language from Durenleau in its instructions on circumstantial evidence:
"The evidence and inferences, however, must add up to more than mere
suspicion; the jury cannot bridge evidentiary gaps with speculation." 163
Vt. at 12-13, 652 A.2d at 983. The court declined to insert the quotation
but decided to add the emphasized language at the end of its circumstantial
evidence charge:

There are two types of evidence from which you may find the
truth as to the facts in this case; direct evidence and
circumstantial evidence. Direct evidence is that testimony
of a person who asserts actual and personal knowledge of the
particular fact, such as an eyewitness. Circumstantial
evidence is evidence that does not directly prove a fact, but
that points to the existence of the fact. Circumstantial
evidence is proof of a chain of facts and circumstances
indicating the guilt or innocence of a defendant.

The law does not require that the defendant's guilt be
established by direct evidence alone. . . . One or more of
the essential elements or all of the essential elements may
be established by probable and reasonable deduction or
inference from other facts which are established by direct
testimony. Circumstantial evidence may, by itself, be
sufficient proof of the commission of a crime upon which to
find a defendant guilty. The law makes no distinction
between the weight to be given to either direct or
circumstantial evidence. Nor is a greater degree of
certainty required of circumstantial evidence than of direct
evidence. You should accept all of the evidence you find to
be credible and discard any evidence you do not consider to
be credible.

You are reminded that the defendant is not to be convicted on
mere suspicion or conjecture or a mere probability of guilt.

(Emphasis added.) The emphasized language thus incorporated explicitly the
first clause of the Durenleau quotation by advising the jury that it could
not convict based on "mere suspicion or conjecture or a mere probability of
guilt." Therefore, defendant's argument turns on whether the court erred
by refusing to include the exact phrase "the jury cannot bridge evidentiary
gaps with speculation." We hold that it did not. ¶ 30. We review jury
instructions "as a whole and not piecemeal," in order to ensure that they
"accurately state the law on every theory fairly put forward by the
evidence." State v. Verrinder, 161 Vt. 250, 266, 637 A.2d 1382, 1392
(1993). "Within those parameters, the trial court may exercise its
discretion in the wording of the jury charge; a defendant is not entitled
to have specific language included." Id.

¶ 31. Here, the instructions on circumstantial evidence accurately
and fairly reflect the law. First, the court correctly defined
circumstantial evidence as "evidence that does not directly prove a fact,
but that points to the existence of the fact." See, e.g., State v. Warner,
151 Vt. 469, 472-73, 560 A.2d 385, 387-88 (1989) ("Circumstantial evidence
has been defined as that proof offered of certain facts and circumstances
from which the trier of fact may, by way of a process of rational
inference, conclude that the ultimate facts in dispute did or did not
occur."). The court then advised the jury that circumstantial evidence
alone could support a conviction, id. at 472, 560 A.2d at 387, explaining
that some or all of the elements of an offense "may be established by
probable and reasonable deduction or inference from other facts which are
established by direct testimony." The court also reminded the jury that it
should accept the evidence it found to be credible and ignore the evidence
it did not find credible. Following on the heels of these instructions,
the court's warning against finding guilt based on "mere suspicion or
conjecture or a mere probability of guilt" protected defendant from the
possibility of the jury reaching a guilty verdict by using speculation to
bridge gaps in the evidence. Accordingly, we reject defendant's argument
that the court's refusal to insert the quoted language from Durenleau was
reversible error, see State v. Percy, 158 Vt. 410, 419, 612 A.2d 1119, 1125
(1992) (recognizing that, in challenging jury instructions, a "defendant
may not complain because the court has refused to employ the exact terms he
has requested"), and affirm the conviction.

II.

¶ 32. Defendant raises two arguments in support of her claim that
her sentence ought to be vacated. First, she asserts that the trial court
erred in balancing the aggravating and mitigating factors of 13 V.S.A. §
2303(d)-(e). Second, she contends that the court penalized her for
asserting her innocence and exercising her right to a jury trial when it
considered her denial of responsibility during sentencing. We reject both.

¶ 33. The trial court considered the statutory aggravating and
mitigating factors and set out its findings and conclusions in a sentencing
memorandum as required by § 2303(c). It concluded that Mr. Baird was
particularly vulnerable because he was asleep or resting when shot, id. §
2303(d)(4), and that § 2303(d)(7), the aggravating factor for a homicide
that "was random, predatory or arbitrary in nature," had "some limited
utility" because defendant's conduct "appears to be arbitrary in the sense
that it can be characterized as being done impulsively."

¶ 34. In assessing possible mitigators, the court found that
defendant's lack of a criminal record was a mitigating factor under §
2303(e)(1). Under § 2303(e)(2), the court considered that defendant had
told the police she was depressed and that she suffered a grief reaction
and concluded that "this factor has some applicability, [and] it is a
limited mitigating factor." The court heavily qualified this factor,
however, noting that defendant failed to adequately present the extent of
her claimed depression, that her grief reaction was equally consistent with
having witnessed her husband shoot himself as with having shot him, and
that her voluntary consumption of alcohol and discontinuation of medication
did not significantly reduce her culpability. Finally, the court stated
that it would consider her "pro-social lifestyle" and absence of a history
of violence, although not as a separate mitigating factor under §
2303(e)(7).

¶ 35. The court concluded that the aggravating and mitigating
factors were "essentially balanced, with neither outweighing the other to
the extent that the minimum sentence of 20 years should be increased or
decreased." The court also considered the traditional goals of sentencing:
punishment, rehabilitation, deterrence, and public protection. In
particular, it found that defendant's denial of responsibility minimized
the likelihood of rehabilitation, which in turn posed a danger to the
public. It also noted the importance of deterring defendant and others
from similar conduct. In light of its assessment of the statutory factors
and the traditional sentencing goals, the court imposed the presumptive
sentence under § 2303(b).

¶ 36. Preliminarily, we note that our decision in State v. Provost,
2005 VT 134, 16 Vt. L. Wk. 381, 896 A.2d 55, does not mandate reversal of
defendant's sentence. There, we held 13 V.S.A. § 2303 unconstitutional
because it required the sentencing court to weigh aggravating and
mitigating factors not found by a jury beyond a reasonable doubt in
deciding whether to give a sentence greater than the presumptive sentence
set forth in the statute. Id. ¶ 17. Defendant has raised neither Provost,
which issued after her appeal was argued but was still pending, nor
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) or Blakely v. Washington,
542 U.S. 296, 303 (2004), upon which Provost was based, as grounds for
vacating the sentence. Instead, she argues that the district court
misbalanced the statutory factors in light of the relevant facts when it
decided to give her the presumptive sentence instead of a lesser sentence.
In other words, she has chosen to attack the manner in which the court
applied the statutory factors, rather than challenge the court's authority
to engage in the fact-finding contemplated by the statute. Thus, she has
waived any claim of error based on Provost. See State v. King, 2006 VT 18,
¶ 13, 17 Vt. L. Wk. 70, 897 A.2d 543 (holding that defendant waived ability
to challenge sentencing process on appeal by explicitly agreeing to have
trial court serve as fact finder to determine appropriate sentence, and
sentence did not exceed statutory maximum for crimes to which defendant
pled).

¶ 37. In addition, in Provost, the court imposed a sentence above
the statute's presumptive sentence based on its determination that the
aggravators outweighed the mitigators, so that the "absence of these
[mitigating] factors was as essential to the punishment defendant received
as the presence of the aggravating factors." Provost, 2005 VT 134, ¶ 19
(quotations omitted). By contrast, while the presence of a mitigating
factor here may have enabled the court to reduce the minimum sentence, it
did not require the court to do so. Thus, Provost does not require
reversal here.

¶ 38. We will uphold a trial court's sentencing decisions absent an
abuse of discretion. King, 2006 VT 18, ¶ 15. Even where we find such
abuse, however, Rule 52(a) of the Vermont Rules of Criminal Procedure
instructs us to disregard "[a]ny error . . . which does not affect
substantial rights." V.R.Cr.P. 52(a); see State v. Bacon, 169 Vt. 268,
273, 733 A.2d 50, 54 (1999) ("The harmless error doctrine applies to
sentencing proceedings."). Whether an error is constitutional or
nonconstitutional, we may find it harmless "only if we can state a belief
that the error was harmless beyond a reasonable doubt." Provost, 2005 VT
134, ¶ 18. Thus, in order to find a sentencing error harmless, we must
conclude beyond a reasonable doubt that, absent the error, the defendant
would not have received a lesser sentence. See State v. Oscarson, 2004 VT
4, ¶ 30, 176 Vt. 176, 845 A.2d 337 (stating that for erroneous admission of
evidence at trial to be harmless, appellate court "must find beyond a
reasonable doubt that the jury would have returned a guilty verdict
regardless of the error").

¶ 39. We reject defendant's first argument because, assuming
arguendo that the court erred in balancing the aggravating and mitigating
factors, any such error would be harmless beyond a reasonable doubt.
Defendant claims that, absent the aggravating factors, the presence of one
clear mitigating factor, defendant's lack of a criminal history, justified
a sentence below the statutory minimum. While the presence of the
mitigating factor might have enabled the court to depart from the
presumptive minimum, it did not require such a departure, see 13 V.S.A. §
2303(b) (stating that if mitigators outweigh aggravators, "the minimum term
may be set at less than 20 years" (emphasis added)), especially in light of
the court's valid observations concerning the traditional goals of
sentencing as applied to this case, see State v. Corliss, 168 Vt. 333, 342,
721 A.2d 438, 445 (1998) (affirming court's "consideration of traditional
common law factors such as punishment, deterrence, or rehabilitation").
Thus, even removing the aggravating factors from the equation, the court's
decision to impose the statutory minimum did not prejudice defendant's
substantial rights, and any error in considering the aggravating factors
was harmless beyond a reasonable doubt.

¶ 40. Defendant also argues that the court improperly treated her
failure to accept responsibility at sentencing as a "surrogate for
maintaining her innocence through trial and sentencing." The court made
crystal clear in its sentencing memorandum, however, that it was
considering defendant's denial of responsibility "[a]t this juncture,"
i.e., at sentencing, and not at any prior stage of the proceedings. It
went on to explain that her denial was relevant to the extent it related to
her prospects for rehabilitation, which in turn related to the danger she
posed to the public, and it explicitly declined to view defendant's denial
of responsibility and failure to show remorse as an aggravating factor
under the catch-all provision of § 2303(d)(8). Thus, the court properly
limited its consideration of defendant's failure to accept responsibility
to her denial at the time of sentencing and to the impact of her denial on
the core sentencing goals of rehabilitation and protection of the public.
Accordingly, we affirm defendant's sentence.

III.

¶ 41. Finally, defendant argues that Rule 10(b)(6) of the Vermont
Rules of Appellate Procedure requires the court or the State to pay for her
trial transcript. The rule provides in relevant part that "[i]n any
criminal case resulting in a sentence of life imprisonment where the
defendant has not waived appeal, the clerk of the trial court shall, 10
days after the entry of judgment, order . . . a complete transcript of the
proceedings." V.R.A.P. 10(b)(6).

¶ 42. Defendant moved to compel the district court or the State to
order and pay for a complete transcript. The court denied the motion,
reasoning that Rule 10(b)(6) does not suggest that courts must pay for the
transcripts that the rule requires them to order. Additionally, the court
denied defendant's request to compel the State to pay for the transcripts
because defendant had private counsel, made no claim of indigence, and had
not applied to proceed in forma pauperis. On appeal, defendant argues that
the plain language of Rule 10(b)(6) requires the court to pay for the
transcript because the rule directs the court to order the transcript and
"[o]rdering requires payment." Defendant reasons that "[w]ithout
prepayment, the transcripts have not been ordered."

¶ 43. Under our appellate rules, however, the default position is
that the party relying on all or part of a transcript in an appeal must
bear the cost, unless that party demonstrates that he is entitled to have
the State pay. Specifically, Rule 10(b)(4) provides that "[a]t the time of
ordering [of a transcript] . . . , a party shall pay . . . the correct
deposit for such part ordered or shall move for the preparation of the
designated parts at the expense of the state on the ground that the party
is proceeding on appeal in forma pauperis." V.R.A.P. 10(b)(4). The plain
language of Rule 10(b)(4) thus requires "a party," not a court or the
State, to pay for the transcript, unless that party is proceeding in forma
pauperis. Additionally, the use of the non-party-specific phrase "[a]t the
time of ordering" indicates that, regardless of who ordered the transcript,
the only way for the party relying on the transcript to avoid paying is by
obtaining in forma pauperis status and thereby shifting the cost of the
transcript to the State. See State v. Bargo, 147 Vt. 322, 323, 515 A.2d 1071, 1071-72 (1986) (requiring, where only one out of four defendants
jointly appealing their convictions obtained in forma pauperis status, the
State to pay that defendant's pro rata share of transcript costs and each
of the three financially able defendants to pay his pro rata share). Thus,
Rule 10(b)(6)'s requirement that the trial court order the transcript
simply insures that this function occurs as a matter of course in cases in
which appeal is automatic. See V.R.A.P. 3(b)(2) (obviating necessity of
filing notice of appeal to commence appeal of criminal case involving
sentence of life imprisonment). This requirement does not, however, alter
the default allocation of transcript costs to the party relying on the
transcript in its appeal. Because defendant here never applied for, let
alone obtained, in forma pauperis status, the district court correctly
denied her request to shift her payment obligation to the State or the
district court.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. The State introduced testimony concerning an extramarital affair
defendant had with a co-worker. The co-worker broke the affair off and
returned to his wife shortly before Thanksgiving, a decision that
apparently angered defendant.

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