State v. Davis

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as well as formal revision before publication in the Vermont Reports.
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                                No. 89-573

State of Vermont                             Supreme Court

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

John Davis                                   April Term, 1991

Theodore S. Mandeville, Jr., J.

Dan Davis, Windham County State's Attorney, Brattleboro, and Pamela Hall
  Johnson, State's Attorneys and Sheriffs Department, Montpelier, for

E.M. Allen, Defender General, and Kerry B. DeWolfe and William Nelson,
  Appellate Attorneys, Montpelier, for defendant-appellant

PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

     ALLEN, C.J.   Defendant appeals his conviction of attempted voluntary
manslaughter following a trial by jury.  We affirm.
     On the evening of September 6, 1988, defendant became involved in an
argument with his friends, Tim O'Neil, Kevin O'Neil, and Brian Petrowicz,
over a small debt and for their having abandoned him on the side of a road
while he was riding with them into town.  Defendant had been drinking
heavily and became infuriated.  He walked to his home and obtained from a
gun cabinet a pistol that he and a friend had loaded with a single bullet
the previous night.  He then drove off in search of his friends.  He stopped
first at the O'Neil house where he forced his hand through a window in the
front door.  He eventually found his friends at the Petrowicz house.
Hostility arose, and defendant became belligerent.  He retrieved his gun
from the car, pointed it at Petrowicz's head and pulled the trigger about
three times.  When the gun did not fire, defendant returned to his car and
drove home.
     Lieutenant Dennis Johnson, of the Vernon Police Department, located
defendant at his house.  Finding defendant's hand in need of medical
attention, Lt. Johnson summoned an ambulance.  Defendant agreed with the
officer's suggestion that the two travel to the hospital together in the
ambulance.  During the ride, Lt. Johnson administered a Miranda warning to
defendant and proceeded to ask him some questions.  Defendant told the
officer that he was out for revenge and had intended to kill the victim and
the others.
     Defendant was charged with attempted first degree murder.   Prior to
trial, he unsuccessfully sought to suppress the statements made to Lt.
Johnson.  He renewed this motion at trial, but after testimony was taken in
camera, the trial judge admitted the statements.  The jury returned a
verdict of guilty of attempted voluntary manslaughter.
     The defendant raises four claims of error:  (1) the Miranda warning was
defective; (2) the trial court erred in failing to give a requested
instruction on defendant's theory of the case; (3) the court incorrectly
instructed the jury as to the intent required for attempted voluntary
manslaughter; and (4) the court failed to properly instruct on diminished
     Defendant moved prior to trial, and again at trial, to suppress
statements made to Lt. Johnson on the grounds that defendant's waiver of his
Miranda rights was not knowing and intelligent and that his statements were
not voluntary because of the degree of his intoxication and injuries.  On
both occasions, the court ruled against defendant on these grounds, and he
does not reassert them on appeal.  Rather, he asserts, for the first time,
that the Miranda warnings were incomplete.
     At trial, Officer Johnson testified that he administered the following
Miranda warnings to defendant:

          I advised John Davis that he did have a right to remain
          silent.  That I was about to ask him some questions.
          That he had a right to have an attorney.  If he could
          not afford an attorney, one would be appointed for him,
          free of charge.  That he could stop answering questions
          at any time.  And that he did not have to answer my
          questions, until he had an attorney.

This recitation does not explicitly apprise defendant of his right to have
counsel present during interrogation.  Defendant contends that, under our
holding in State v. Kilborn, 143 Vt. 360, 363, 466 A.2d 1175, 1177 (1983),
this omission constitutes plain error.  We agree that adherence to Kilborn
would dictate a finding of plain error.  We held in that case that absence
of an explicit statement that defendant had a right to have counsel present
during interrogation rendered the Miranda warning categorically defective.
Id.  However, we now overrule Kilborn and hold that the sufficiency of
Miranda warnings, when not raised below, will be evaluated based on the
facts and circumstances of the particular case.  Our decision today is
consistent with State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989),
where we stated that "it would be bad policy to create a category of errors
which are plain per se."  Adoption of such an approach, we noted, would
reduce the incentive for counsel to object to errors below.  Id.
     As a general rule, defendants must bring suppression issues to the
attention of the trial court prior to trial.  V.R.Cr.P. 12(b)(3).  Failure
to do so results in waiver.  V.R.Cr.P. 12(f).  When limited to plain error
analysis by V.R.Cr.P. 52(b), we will no longer find plain error in every
case where deficient Miranda warnings are challenged for the first time on
appeal.  This Court will find plain error only in the rare and extraordinary
case where the error is obvious and so grave and serious that it strikes at
the very heart of a defendant's constitutional rights or adversely affects
the fair administration of justice.  State v. Schmitt, 150 Vt. 503, 505, 554 A.2d 666, 667 (1988).
     After a careful review of both recitations of the warnings given by
Officer Johnson and the full record, we find the error here neither obvious
nor so serious that it affects defendant's constitutional rights or the
fairness of his trial.  Officer Johnson advised defendant of his right to
remain silent, to have an attorney, and to not answer questions until he had
an attorney.  Taken together, these warnings reasonably conveyed defendant's
right to have an attorney present during interrogation, though they did not
do so explicitly.  See, e.g., Sweeney v. United States, 408 F.2d 121, 125
(9th Cir. 1969) (no plain error where warnings, although they could have
been more explicit, communicated substance of Miranda requirements).
     One of defendant's arguments at trial was that he did not possess a
specific intent to kill because he thought the gun was unloaded.  Defendant
proffered the following instruction:
         You must find the defendant not guilty if the State has
         failed to prove, beyond a reasonable doubt, that the
         defendant intended to kill Brian Petrowicz.

         In this regard, you must find the defendant not guilty
         if you have any reasonable basis to believe that the
         defendant was not aware, at the time of the alleged
         offense, that there was a bullet in the gun.

     The trial court did not err in refusing to charge in accordance with
defendant's request.  The instructions given fully and fairly apprised the
jury that the crime of attempted manslaughter requires the specific intent
to kill.  The jury could not have concluded that defendant had this
intention without confronting defendant's argument that he thought the gun
was unloaded.
     Defendant next claims that the court erroneously omitted from its
charge to the jury the requirement that they must find that defendant
possessed the specific intent to kill, and not just shoot, the victim.  The
court instructed:

          The last element of the offense is that the defendant
          acted intentionally.  This element is essentially the
          same as willfully.  Here you must be convinced that the
          acts performed by the defendant were done willfully and
          voluntarily and not out of accident or mistake.  The
          focus in this case is upon the attempted shooting of
          Brian Petrowicz.  The state must show a conscious
          intentional performance of the act of attempting to
          shoot the victim.

     Defendant bases his claim of error on this isolated instruction.  On
review, however, we must look at the "charge as a whole, rather than
piecemeal."  State v. Norton, 147 Vt. 223, 235, 514 A.2d 1053, 1061 (1986).
The trial judge cautioned the jurors to do the same: "You are not to single
out one instruction alone as stating the law.  You must consider these
instructions as a whole."  Viewing the jury instructions as a whole, we find
that they "adequately covered the point charged and amply protected the
rights of the defendant."  State v. Gokey, 136 Vt. 33, 36, 383 A.2d 601, 603
     Immediately before the isolated instruction complained of, the court
properly instructed on the elements of attempted voluntary manslaughter:
"First, the attempted taking of the life of another human being by the
defendant.  Second unlawfully.  And third, intentionally."  Earlier, during
the charge on attempted murder, the court instructed that the State had to
prove that it was "the act or acts of the defendant that attempted to bring
about the death of Brian Petrowicz."  Later, during the instruction on
provocation, the court explained that manslaughter was an "intentional,
unlawful killing, done out of sudden passion or great provocation . . . ."
The court again emphasized the importance of the intent requirement by
pointing out that intoxication may sufficiently impair a person "to prevent
that person from forming the specific intent" required for manslaughter.
Finding that the charge as a whole "breathes the true spirit and doctrine
of the law," Fasset v. Town of Roxbury, 55 Vt. 552, 556 (1883), we cannot
agree that the isolated language complained of amounts to error.
     Defendant also claims error in the judge's instructions on diminished
capacity.  At one point during his charge, the judge explained that "[a]s
applied in this case, diminished capacity simply defined results in malice
negated.  Without malice, homicide cannot be murder, in any degree, and may
only be manslaughter."  Defendant argues that the judge could have led the
jury to believe that diminished capacity could serve only to mitigate murder
to manslaughter.  The issue of diminished capacity was not raised until this
appeal.  Accordingly, we will not review the claim unless it amounts to
plain error.  V.R.Cr.P. 52(b).
     There is no plain error in the instructions.  The judge clearly
instructed the jury on diminished capacity.  His explanation that, if
diminished capacity negated malice, defendant could not be convicted of
murder was merely an illustration of the effect of diminished capacity, and
was not meant to be a limitation.  The judge explained that, in general,
diminished capacity is a mental disability that might prevent defendant from
forming a specific intent as to an element of an offense.  He told the jury
that if the State failed to prove each element of an offense, it must find
defendant not guilty of that offense.  Concluding, the judge stated:  "If
you find that the defendant, because of his intoxicated state, was incapable
of formulating the specific intent required to commit murder or any of the
lesser included offenses described, then you must find the defendant not
guilty."  Defendant's claim of plain error is without merit.

                                        FOR THE COURT:

                                        Chief Justice