State v. Perez

State v. Perez (2005-045); 180 Vt. 388; 912 A.2d 944

2006 VT 53

[Filed 16-Jun-2006]

[Motion for Reargument Denied 16-Oct-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 53

                                No. 2005-045


  State of Vermont                               Supreme Court

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

  Michael Perez                                  March Term, 2006


  John P. Wesley, J.

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

  Allison N. Fulcher and Erika Wright, Law Clerk (On the Brief) of Martin &
    Associates, Barre, for Defendant-Appellant.
   

  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
            Kupersmith, D.J.,  Specially Assigned

        
       ¶  1.  SKOGLUND, J.   Defendant Michael Perez appeals from his
  conviction, after a jury trial, of aiding in aggravated murder in violation
  of 13 V.S.A. §§ 3, 2301, 2311(a).  He argues that: (1) the trial court
  erred in refusing to instruct the jury on a lesser-included offense of
  voluntary manslaughter; (2) the court's instruction on accomplice liability
  was inadequate and misleading; (3) there was insufficient evidence to
  support his conviction; (4) the court erred in denying his motion for
  individual and sequestered voir dire; and (5) the court erred by failing to
  sequester the jury during deliberations.  We affirm.  

       ¶  2.  The record reveals the following.  In July 2002, defendant was
  charged with aiding in aggravated murder based on information that he aided
  in the intentional killing of Gregg Enos and Colleen Davis.  The victims'
  bodies were discovered on June 25, 2002, in Enos's pickup truck in the
  Mollie Beattie State Forest in Grafton, Vermont.  Enos died from multiple
  stab wounds to his head and torso.  His body was found upside down on the
  driver's side of the truck, under the steering wheel.  Davis was found
  partially inside the cab of the truck, bent somewhat at the waist through a
  small window in the back of the cab.  Her upper torso and head were resting
  on a tire in the open, back part of the truck.  She died from blunt trauma
  to the head.

       ¶  3.  At the scene, police found a long tree limb with a piece of red
  cloth wrapped around its end, resting on the back of Davis's skull.  The
  cloth was burnt, and it contained Enos's blood.  Another piece of burnt red
  cloth, also containing Enos's blood, was found protruding from the truck's
  gas tank.  Both pieces of cloth were  part of a red "Fat Albert" t-shirt
  that defendant had been observed wearing on the day of the murders.  Police
  also discovered a rock with Davis's blood on it near a picnic table at the
  campsite. 
   
       ¶  4.  Police encountered defendant and Charles Sherman at the
  murder scene the day the bodies were discovered.  Defendant, who is black,
  was twenty years old at the time of the murders and he was living with the
  Sherman family.  Sherman, who is white, was in his early forties. 
  Defendant told police that he and Sherman wanted to retrieve their truck,
  which had gotten stuck in the state forest the previous evening.  Defendant
  initially stated that he and Sherman had walked home after their truck got
  stuck.  He later said that he and Sherman caught a ride to Bellows Falls in
  a dark brown or black pickup truck. 

       ¶  5.  Defendant gave another statement to police later that evening. 
  He reiterated that he and Sherman caught a ride in a pickup truck.  He
  denied any involvement in the murders.  Defendant told police that after
  catching a ride into Bellows Falls, he and Sherman got drunk and went to
  sleep.  He said that on the day of the murders, Sherman wore a red shirt,
  while he wore a white one.  He denied that he and Sherman had a knife in
  their truck that day, despite testimony from several witnesses to the
  contrary.

       ¶  6.  Several days later, defendant told police that Sherman killed
  both victims.  He recounted the following story.  He and Sherman were very
  intoxicated.  They went joyriding in the state forest until their truck got
  stuck.  They started walking back to Bellows Falls and caught a ride with
  Enos and Davis.  After stopping to buy beer and snacks, they all decided to
  return to the state forest to party.  At some point, Enos and Sherman left
  the campsite to look at the stuck truck, and defendant had consensual sex
  with Davis on the picnic table.  Enos and Sherman returned while this was
  occurring, which angered Enos.  Defendant calmed things down, and the group
  started drinking together again.  When Enos and Davis got ready to leave,
  Enos made a parting comment to defendant, calling him a "nigger."  This
  angered Sherman, who began arguing with Enos.  Defendant described himself
  as "frozen."  

       ¶  7.  According to defendant, Sherman grabbed a stick out of
  defendant's hands and hit Enos with it.  Sherman then tried to move Enos's
  body and asked defendant for help.  Enos sprang up and ran to the truck. 
  Sherman chased Enos and stabbed him.  Defendant did not know that Sherman
  had a knife.  
   
       ¶  8.  Eventually, Sherman, defendant, and Davis went to Enos's
  truck.  The truck was too bloody to drive.  Sherman asked defendant to help
  him move Enos's body into the truck.  Sherman then told Davis to get into
  the truck, which she did.  She tried to climb out of the truck's back
  window and Sherman hit her with a stick and a beer bottle while defendant
  left and went inside a  camp building at the site.  Sherman later came into
  the camp building, threw his shirt and keys into the fire, and told
  defendant to wrap his shirt around the tree limb and light it.  Sherman lit
  the shirt, stuck it into the truck, and the two men left the scene.

       ¶  9.  After giving this statement, defendant led police to evidence
  that he and Sherman had discarded.  En route, he repeated portions of his
  story.  He reiterated that Sherman became angry when Enos used a racial
  slur, and he stated that Sherman responded by saying "that's my nigger, not
  yours."  Defendant indicated that he was scared Sherman would kill him.  He
  told police that he and Sherman filled their clothes and shoes with rocks
  and threw them into the river.  He also stated that they had planned to go
  to the state forest the following day, remove the tree limb, and pretend to
  discover the bodies.  Defendant repeated that Sherman was very drunk that
  day and falling down due to his intoxicated state.  

       ¶  10.  Several days after giving the first statement, defendant
  provided police with a slightly different version of events.  Contrary to
  his initial story, defendant said that Sherman told him to hit Davis with
  the tree limb, which he pretended to do.  
   
       ¶  11.  Defendant testified on his own behalf at trial, recounting
  another slightly different version of events.  The State introduced
  defendant's various statements to police, in addition to other evidence. 
  Several witnesses also testified that defendant told them that he raped
  Davis before killing her and that he "beat the dude and stabbed the bitch
  fifty-seven times."  The jury found defendant guilty of aiding in
  aggravated murder, and this appeal followed.

       ¶  12.  Defendant first argues that the jury should have been
  instructed on a lesser-included offense of voluntary manslaughter. 
  According to defendant, ample evidence supported his assertion that the
  killings were prompted by Enos's use of a racial slur.  Defendant maintains
  that, based on the evidence, the jury could have determined that Sherman
  got violent and aggressive when he drank, Sherman and defendant had been
  drinking most of the day, Sherman was upset when Enos called defendant a
  "nigger," and, in a drunken rage, Sherman lost control and attacked and
  killed Enos.  Defendant also points to the existence of a "sloppy" crime
  scene as evidence that the murders were the result of sudden provocation.  

       ¶  13.  Assuming for present purposes that voluntary manslaughter, or
  "aiding in voluntary manslaughter," can be a lesser-included offense of
  aiding in aggravated murder, we find no error in the trial court's refusal
  to instruct the jury on this offense.  While it is true that, "[a]s a
  general rule, a criminal defendant is entitled to have the jury instructed
  on all lesser-included offenses," the instruction need be given only "if
  the facts in evidence reasonably support such an instruction."  State v.
  Delisle, 162 Vt. 293, 301, 648 A.2d 632, 637 (1994).  The facts do not
  reasonably support a voluntary manslaughter instruction here.  
   
       ¶  14.  Voluntary manslaughter has four elements:  (1) adequate
  provocation; (2) inadequate time to regain self-control or "cool off"; (3)
  actual provocation; and (4) actual failure to "cool off."  State v.
  Turgeon, 165 Vt. 28, 32, 676 A.2d 339, 342 (1996) (quoting 2 W. LaFave & A.
  Scott, Substantive Criminal Law § 7.10, at 255 (1986)).  The only evidence
  of provocation in this case was defendant's testimony that Sherman became
  angry when Enos directed a racial slur toward defendant.  Putting aside the
  oddities in defendant's story-including the fact that, according to
  defendant, Sherman responded by using the same slur-the alleged insult was
  insufficient as a matter of law to establish provocation.  See State v.
  Bogie, 125 Vt. 414, 417, 217 A.2d 51, 55 (1966) (recognizing that
  "provocation by mere words will not justify a physical attack").  There was
  no other evidence to support the use of a voluntary manslaughter
  instruction.  The existence of a "sloppy" murder scene in no way tends to
  reasonably show that the murders were provoked.  Because no reasonable
  construction of the facts establishes the offense of voluntary
  manslaughter, the trial court did not err in refusing to provide this
  instruction to the jury.  See Turgeon, 165 Vt. at 342, 676 A.2d  at 33 ("The
  trial court need only instruct the jury on the elements of lesser-included
  offenses that are fairly raised; it need not charge on a theory not
  supported by the evidence.").

       ¶  15.  Defendant next argues that the trial court's charge to the
  jury, read as a whole, was  inadequate and misleading.  He maintains that a
  fair and reasonable interpretation of the overall charge on accomplice
  liability allowed the jury to find him guilty of aiding in aggravated
  murder even if it found that he and Sherman had entered into an agreement
  with the intent to kill only one of the victims and not the other.

       ¶  16.  On appeal, we view the jury instructions in their entirety,
  and we "will reverse only when the entire charge undermines confidence in
  the verdict."  State v. Brown, 2005 VT 104, ¶ 43, 16 Vt. L. Wk. 264, 890 A.2d 79 (quotation omitted).  We must determine if "the instructions taken
  as a whole breathe the true spirit of the law, such that the jury has not
  been misled."  State v. Dann, 167 Vt. 119, 132, 702 A.2d 105, 113 (1997). 
  There is no support for defendant's assertion that the jury instructions
  were misleading here. 
   
       ¶  17.  To establish defendant's guilt of aiding in aggravated
  murder, the State needed to prove that defendant aided Sherman in the
  commission of each murder and had the requisite intent with respect to each
  murder.  13 V.S.A. §§ 3, 2301, 2311(a).  The jury instructions accurately
  and clearly described the State's burden of proof.  They explained the
  elements of the crime with which defendant was charged, and stated that to
  prove defendant's guilt as an accomplice, the State needed to show that
  defendant and Sherman acted under a common plan.  The court then provided
  an in-depth explanation of what was required to establish a "common plan,"
  including the requirement that defendant share Sherman's intent to commit
  all of the legal elements of the offense, which the court  set out.  The
  instructions plainly informed the jury that to find defendant guilty, it
  needed to find that he aided Sherman in each of the murders.  Defendant
  fails to identify any specific language in the instructions that was
  misleading or confusing, and we find no error. 

       ¶  18.  Defendant next argues that the trial court erred in denying
  his motion for a judgment of acquittal.  According to defendant, the State
  failed to produce sufficient evidence to prove that he and Sherman entered
  into an agreement to kill both victims and that he shared in Sherman's
  intent to kill both victims.  Defendant maintains that even if the jury
  found his various statements to police not credible, its disbelief of these
  statements does not establish that he joined in an agreement or shared in
  the intent to kill. 
   
       ¶  19.  We reject this argument.  As previously articulated, we review
  the denial of a V.R.Cr.P. 29 motion for judgment of acquittal to see
  "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."  Delisle, 162 Vt. at 307, 648 A.2d  at 641 (quotation and
  brackets omitted).  There was ample evidence in this case to establish
  defendant's guilt. 

       ¶  20.  As previously stated, the State needed to prove that defendant
  aided Sherman in the commission of each murder and that he had the
  requisite intent with respect to each murder.  13 V.S.A. §§ 3, 2301,
  2311(a).  The record shows that defendant admitted being present at the
  murder scene, helping to move Enos's body, and disposing of incriminating
  evidence.  He lied to police, and he provided varying accounts of the
  evening's events.  A piece of a shirt that defendant was seen wearing was
  wrapped around the tree limb found resting on Davis's skull; another piece
  of his shirt was found protruding from the gas tank of Enos's truck.  Both
  contained Enos's blood.  A rock with Davis's blood was found near the
  picnic table where defendant claimed to have had consensual sex with the
  victim.  
   
       ¶  21.  In his conversations with police, defendant attempted to
  assign all responsibility for the murders to Sherman, whom he had
  previously described as falling-down drunk.  Defendant maintained that
  Sherman, despite his intoxicated state, had been able to subdue and
  brutally murder the two young victims, in the dark of night, completely on
  his own.  The jury was free to reject this story, and it could reasonably
  infer from the totality of the evidence presented at trial that defendant
  assisted Sherman in murdering both victims.  See State v. Miller, 146 Vt.
  164, 169, 502 A.2d 832, 835 (1985) (holding that a reasonable jury could
  conclude beyond a reasonable doubt that defendant was guilty of
  participating in common plan to murder another based on evidence of
  defendant's companionship with coconspirator, their presence at the scene
  with the victim shortly before the crime, the injuries suffered by the
  victim, other evidence from the crime scene, and defendant's actions before
  and after the crime); see also State v. Durenleau, 163 Vt. 8, 12, 652 A.2d 981, 983 (1994) ("In assessing circumstantial evidence, the fact-finder may
  draw rational inferences to determine whether disputed ultimate facts
  occurred."); State v. Camley, 140 Vt. 483, 489, 438 A.2d 1131, 1134 (1981)
  ("The jury has the right to believe all, part, or none of the testimony of
  any witness, and this rule applies to the defendant as well as any other
  witness.").  Defendant's motion for a judgment of acquittal was properly
  denied.  

       ¶  22.  Defendant next argues that the trial court erred in denying
  his motion for individual and sequestered voir dire.  He maintains that he
  was entitled to this procedure because he was charged with a violent crime,
  and his race differed from that of the victims.  According to defendant,
  the trial court unreasonably and improperly limited the examination of
  prospective jurors, despite the significant possibility of racial bias.

       ¶  23.  The trial court denied defendant's request for individual and
  sequestered voir dire after concluding that the process posed significant
  problems that counterbalanced its arguable merits. The court ultimately
  provided jurors with a written questionnaire, at defendant's suggestion,
  that was designed to elicit jurors' potential racial or ethnic biases.  See
  V.R.Cr.P. 24(a) (explaining that trial court may distribute written
  questionnaires to prospective jurors to assist the voir dire examination). 
  The subject of racism was also discussed by the State during voir dire, and
  two jurors were excused for cause.
   
       ¶  24.  We find no error in the procedure employed by the trial
  court.  See State v. Bernier, 157 Vt. 265, 267,  597 A.2d 789, 790 (1991)
  ("The nature and scope of voir dire is within the sound discretion of the
  trial court, and decisions regarding voir dire will be reversed only where
  the court abuses its discretion.").  Contrary to defendant's suggestion and
  the out-of-state cases on which he relies, the trial court did not unfairly
  restrict his ability to inquire into possible bias during voir dire. 
  Instead, the record demonstrates that the trial court was mindful of the
  possibility of racial or ethnic bias, and it took appropriate steps to
  identify any potential prejudices that the prospective jurors might have
  possessed.  Cf. Rosales-Lopez v. United States, 451 U.S. 182, 192 (1981)
  (plurality opinion) (stating that federal trial courts must inquire into
  racial and ethnic prejudice of prospective jurors when requested by a
  defendant accused of a violent crime, and where the defendant and the
  victim are members of different racial or ethnic groups).  We find no abuse
  of discretion.

       ¶  25.  Finally, defendant argues that the trial court erred by
  failing to sequester the jury during deliberations despite a request from
  both sides that it do so.  He suggests that there was a real possibility
  that the deliberative process could have been tainted as a result.  

       ¶  26.  The record shows that at trial defendant argued that allowing
  the jury to separate would adversely affect the deliberative process,
  specifically, the group decision-making process.  He did not suggest that
  there was any possibility that the jurors would be exposed to prejudicial
  information or that they would fail to heed the court's cautionary
  instructions.  The trial court denied the request, noting that there had
  been no request to sequester the jury during trial and it was difficult to
  discern why the jurors should be deemed less trustworthy during the
  deliberation phase.  The court found that the jury would follow its
  instructions, and it  rejected defendant's assertion that allowing them to
  separate would adversely affect the deliberative process.  Instead, the
  court concluded that allowing the jurors to separate during deliberations
  would make them more effective jurors.  The record indicates that the jury
  separated overnight and returned their verdict the following day.  
   
       ¶  27.  We find no error in the trial court's denial of defendant's
  sequestration request.  The trial court has discretion in deciding whether
  to allow the jury to separate.  V.R.Cr.P. 23(d); see also Reporter's Notes,
  V.R.Cr.P. 23(d) (recognizing that Rule 23(d) adopts recommendation of
  American Bar Association that "jury separation be within the discretion of
  the trial court and that sequestration be used only when highly prejudicial
  matters are likely to come to the jury's attention").  Defendant bears the
  burden of showing an abuse of  discretion.  State v. Brisson, 124 Vt. 211,
  215, 201 A.2d 881, 883 (1964).  To meet this burden, he must show more than
  the mere existence of circumstances capable of prejudicing the jury.  State
  v. Brooks, 163 Vt. 245, 258, 658 A.2d 22, 31 (1995).  He must "demonstrate
  a nexus between the events or circumstances and juror taint."  Id.; see
  also State v. Dragon, 135 Vt. 168, 170, 376 A.2d 12, 13-14 (1977)
  (requiring a demonstrable showing of prejudice, and stating that mere
  speculation of juror prejudice is insufficient).  Defendant makes no such
  showing here.  His generalized assertion about the necessity of preserving
  group dynamics during the jury's deliberations does not suffice to
  demonstrate prejudice.  Indeed, accepting this argument would preclude the
  trial court from ever allowing a jury to separate during deliberations,
  which contravenes Rule 23(d).  We find no abuse of discretion. 

       ¶  28.  In light of our discussion above, we need not address
  defendant's argument that he was denied a fair trial by the cumulative and
  combined effects of the errors that he alleged on appeal.

       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice