State v. Cohen

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 87-329

                             APRIL TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont
                                  }          Unit No. 3, Orleans Circuit
                                  }
Bruce Cohen                       }
                                  }          DOCKET NO. 239-6-86 OsCr


             In the above entitled cause the Clerk will enter:

     Defendant appeals from a jury conviction for possession and cultivation
of marijuana.  He claims that plain error occurred when (1) the trial court
failed to provide curative instructions sua sponte after the prosecutor's
improper closing argument; (2) the prosecutor presented an improper theory
of the case during rebuttal; (3) the trial court denied his motion for a
new trial; and (4) the trial court gave inadequate jury instructions
relating to reasonable doubt.  He also contends that he was denied due
process during the sentencing hearing because he was not given timely notice
of the State's intent to present a witness.  We affirm.

                                    I.

     Defendant's first argument is that the prosecutor's argument was
improper and that, although he failed to make any objection to the
challenged language at trial, the trial court should have taken action sua
sponte.  In an effort to bolster his claim, he makes separate claims about
various statements of the prosecutor and argues that cumulatively, if not
individually, they deprived him of a fair trial. (FN1)

    We noted in State v. Francis, 151 Vt. 296, 300, 561 A.2d 392, 395
(1989), that the question of the propriety of an attorney's argument should
be addressed to the discretion of the trial court.  This is because the
trial court, which has observed the entire trial and the demeanor of the
attorneys, can better gauge the impact of the allegedly prejudicial language
than an appellate court reviewing a cold record.  Moreover, an objection
permits the court to take corrective action where appropriate.  But where a
defendant has not objected to allegedly improper language, the trial court
is deprived of an opportunity to correct and we are deprived of the trial
court's views on the question.

     Failure to enforce defense counsel's obligation to object to mistakes
at trial would have the unsalutary effect of encouraging attorneys "'to
remain silent about some fault on the part of the trial court . . . and so,
without giving it a chance to correct the situation, arm themselves with
ground for reversal if the verdict should go against them.'"  State v. Ross,
152 Vt. 462, 470, 568 A.2d 335, 340 (1989)(quoting State v. Kasper, 137 Vt.
184, 190-91, 404 A.2d 85, 89 (1979)).  Because attorneys should not profit
from a failure to object, reversal is warranted, in the absence of an
objection, only where necessary to prevent a miscarriage of justice or a
gross violation of a party's constitutional rights.  State v. Ayers, 148 Vt.
421, 426, 535 A.2d 330, 333 (1987).  Thus, when the alleged error consists
of an improper argument, plain error will be found only if the argument is
so egregious that there is no room for doubt as to its prejudicial effect
and this Court is convinced that affirmance would result in a miscarriage of
justice.

     At trial, defense counsel made no objection to any of the language he
challenges on appeal.  We are unable to determine whether this silence was
strategic or otherwise.  But our policy of encouraging objections is not
served by relaxing our strict plain error policy, merely because instead of
failing to object to one alleged error at trial, defense counsel failed to
object to all.  Thus, although we disapprove of several of the prosecutor's
arguments, we conclude that reversal is not warranted here.  See Francis,
151 Vt. at 301, 561 A.2d  at 395 ("plain error is rarely found in a
prosecutor's argument to the jury 'even where we have condemned the
argument'")(quoting Ayers, 148 Vt. at 426, 535 A.2d at 333).  Some of the
prosecutor's comments had some basis in the evidence; cf. State v. Gates,
141 Vt. 562, 570, 451 A.2d 1084, 1088 (1982)(no evidence to support
prosecutor's suggestion that alibi witness's testimony was coached by
defendant during breaks at trial); the case did not turn entirely on the
credibility of the witnesses since the evidence also included a bare
marijuana patch and a large number of freshly cut marijuana plants in the
proximity of defendant's home, and an unusual assortment of loaded weapons
in his home, cf. id., 141 Vt. at 564, 451 A.2d  at 1085 (State's only
evidence consisted of testimony of the accomplice who admitted she had
"ingested twelve sixteen-ounce bottles of beer, seven rum and cokes, two
Black Russians, cocaine, speed, and marijuana"); Ayers, 148 Vt. at 426, 535 A.2d  at 333 (State's case consisted primarily of testimony of defendant's
wife and daughter); and defendant was represented by counsel, cf. Ayers, 148
Vt. at 426, 535 A.2d  at 334 (defendant appeared pro se).  Given these facts,
and given the scrupulously fair jury instructions of the trial court, we
cannot conclude that, in light of the improper arguments, defendant's
conviction was a miscarriage of justice.

                                    II.

     Defendant's second argument is that plain error occurred when the State
made a Barr-Orlandi argument during rebuttal.  See State v. Barr, 126 Vt.
112, 122, 223 A.2d 462, 469-70 (1966); State v. Orlandi, 106 Vt. 165, 171,
170 A. 908, 910 (1934).  Defendant claims that because the trial court
specifically ruled there was insufficient evidence to charge the jury on a
Barr-Orlandi theory at conference, it should have taken corrective action
sua sponte.

     We do not believe that the State's argument misled the jury.  The trial
court's charge underscored that the jury must apply the law as set out in
the instructions and that it would be a violation of its sworn duty to
"base a verdict upon any other view of the law than that given in the
instructions of the Court."  It then adequately explained the elements of
cultivation and stressed that defendant could not be convicted of
cultivation just because the marijuana was cultivated on his land.  To the
extent the State's argument was misleading, it was corrected by the court's
charge.  There was no plain error warranting reversal.

                                   III.

     Defendant's third argument is that the trial court erred in denying his
motion for a new trial. V.R.Cr.P. 33.  Because defendant's motion was not
filed within ten days of the verdict, the trial court had no jurisdiction to
consider it.  See State v. Sheppard, ___ Vt. ___, ___, 582 A.2d 116, 119
(1990).  Although the trial court should not have considered the motion at
all, denial of the motion was not error.

                                    IV.

     Defendant claims that the trial court's reasonable doubt instruction
included language we have disapproved of in other cases, and was therefore
erroneous.  See State v. Giroux, 151 Vt. 361, 365, 561 A.2d 403, 406
(1989).  Our decision in Giroux turned, in large part, on the implication
made in the court's instruction, that the reasonable doubt standard requires
no more than determining "the truth or falsity of the charge, to convict if
it is true, acquit if it is false."  Id.  No such implication was made here.
Rather, the trial court explained that a reasonable doubt is a doubt "which
arises from consideration of all the evidence in a fair and reasonable way"
and that a reasonable doubt exists if "after consideration of all the
evidence" the jury cannot say it is satisfied that defendant is guilty.
The instruction given did not foreclose a reasonable doubt arising from a
lack of evidence.  It was fair, although we now encourage use of language
explicitly stating that a reasonable doubt may spring from a lack of
evidence.

                                     V.

     Defendant's final argument is that he was not given adequate notice of
the State's intention to call a witness for sentencing.  At the time of
sentencing, V.R.Cr.P. 32(a)(3) required that the presentence investigation
report be made available to defendant at least seven days prior to
sentencing and that any other information considered by the court at
sentencing be "disclosed sufficiently prior to the imposition of sentence as
to afford reasonable opportunity for the parties to decide what information,
if any, the parties intend to controvert by the production of evidence."
Counsel for defendant was alerted of the State's intention to call a witness
at sentencing at least six days prior to sentencing, although he was
informed of the substance of the testimony that would be presented only four
days in advance.  Counsel did nothing until the day of sentencing.  At that
time, the trial court allowed him to depose the witness for over half an
hour because counsel stated that he had been unable to contact the witness
due to lack of time.  Counsel for defendant amply cross-examined the
witness, and defendant testified that the witness's statement was false.
Defendant was afforded a reasonable opportunity to decide what information
he intended to controvert.  See United States v. King, 695 F. Supp. 1325,
1327 (D.Mass. 1988)(defendant was afforded sufficient time to review the
presentencing report where the report was given to his attorney two days
before sentencing); State v. Cote, 129 N.H. 358, 372, 530 A.2d 775, 783
(1987)(defendant was given a fair opportunity to rebut a probation report
where the report was filed two days before the sentencing hearing and
defendant was notified that the report had been filed).

     Affirmed.


                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice




FN1.      Defendant includes in a list of  additional errors "for the
Court's consideration of their additional cumulative effect on appellant's
right to a fair trial," a claim that the court should have granted his
motion in limine to exclude evidence of the land dispute involving Mullein
Hill Corporation.  But his brief discussion of the issue does not
demonstrate that the trial court abused its broad discretion in making the
evidentiary ruling.  See State v. Callahan, 2 Vt. L.W. 31, 33 (1991).