State v. Pelican

Annotate this Case
STATE_V_PELICAN.91-355; 160 Vt. 536; 632 A.2d 24


 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. 91-355


 State of Vermont                             Supreme Court

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

 Terrance L. Pelican                          October Term, 1992



 George T. Costes, J.

 Howard E. VanBenthuysen, Franklin County State's Attorney, St. Albans,
   for plaintiff-appellee

 E.M. Allen, Defender General, and Henry Hinton, Appellate Attorney,
   Montpelier, for defendant-appellant



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


      ALLEN, C.J.    Defendant Terrance L. Pelican appeals his voluntary
 manslaughter conviction, claiming several errors in the court's
 instructions to the jury.  Defendant contends that (1) the court
 erroneously instructed that the evidence of diminished capacity could defeat
 proof of malice only, (2) the court erroneously directed the jury to
 convict defendant if the jury rejected the self-defense theory, (3) the
 self-defense instruction was incomplete because it did not adequately
 present the self-defense theory of the case to the jury, (4) the court
 erroneously directed the jury on how to reconcile conflicting testimony, and
 (5) the court committed prejudicial error by charging the jury that
 defendant's flight was evidence of guilt.  We affirm.
      Defendant and the victim had been friends who lived on the same floor
 of a hotel.  Defendant, the victim, and others had been drinking alcohol
 throughout the day and into the evening.  Defendant and the victim were
 involved in an altercation where the victim viciously assaulted defendant.
 After some time had passed, defendant shot the victim at close range with a
 shotgun.  Immediately after the shooting, defendant fled the scene of the
 crime.  Upon his arrest, defendant was charged with second-degree murder.
 Defendant asserted the defenses of self-defense and diminished capacity from
 intoxication.
      Defendant's first two contentions ÄÄ that there was an erroneous
 diminished-capacity charge and that the trial court erroneously directed the
 jury to convict him if it rejected the self-defense theory ÄÄ were not
 preserved for our review.  Defendant failed to make a "succinct recitation
 of [the] specific itemized objection" following the instruction, as required
 by V.R.Cr.P. 30.  State v. Wheelock, __ Vt. __, __, 609 A.2d 972, 975
 (1992).  Although the diminished capacity claim was mentioned during the
 charge conference, defendant's attorney did not object following the charge
 to the jury.
      Anticipating this shortcoming, defendant points out that the Wheelock
 decision was handed down after the trial in this case, and to apply it
 retroactively would be unfair.  Defendant claims that his counsel's
 preservation method comported with practice prevailing at the time.  We
 disagree.  Our rule and case law required an objection following the
 instructions to preserve the issue for appeal.  See State v. Roberts, 154
 Vt. 59, 71, 574 A.2d 1248, 1253 (1990) ("'A claimed error in the jury
 instructions can be raised on appeal only if, after the delivery of the
 charge, the aggrieved party made specific objection, including a clear
 statement of the matter to which he objects and the grounds of the
 objection.'")(quoting State v. Lettieri, 149 Vt. 340, 342, 543 A.2d 683, 685
 (1988)).
      Nonetheless, defendant claims that both instructions were plain error.
 Plain errors are those errors "affecting substantial rights . . . [which
 are] not brought to the attention of the [trial] court."  V.R.Cr.P. 52(b).
 Plain error exists "only in exceptional circumstances where failure to
 recognize error would result in a miscarriage of justice, or where there is
 glaring error so grave and serious that it strikes at the very heart of the
 defendant's constitutional rights."  State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986).  Plain error doctrine requires "an appellate court to
 find that the claimed error not only seriously affected 'substantial
 rights,' but that it had an unfair prejudicial impact on the jury's
 deliberations."  See United States v. Young, 470 U.S. 1, 16 n.14 (1985).
 Prejudice must exist to demonstrate that error undermined fairness and
 contributed to a miscarriage of justice.
      Defendant claims that the court's instruction ÄÄ that evidence of
 diminished capacity could defeat only proof of malice, an element of murder,
 and not intent to kill, an element of voluntary manslaughter ÄÄ was plain
 error.  When evaluating the sufficiency of jury instructions, we consider
 the instruction as a whole.  See State v. Valley, 153 Vt. 380, 398, 571 A.2d 579, 588 (1989).  Here, the court instructed that diminished capacity
 relates to the State's burden of proving that defendant had the ability to
 form the intent to commit the crime.  Additionally, the court had previously
 charged the jury on the required mental states for murder, voluntary
 manslaughter, and involuntary manslaughter.  Whether defendant's mental
 capacity to formulate these essential elements was so diminished was
 properly left to the jury.  Thus, the instructions, as a whole, provided
 sufficient guidance, and the portion of the instruction referring to malice
 did not have an unfair prejudicial impact on the jury's deliberation.
      Defendant also contends that the court's instruction to convict if the
 jury rejected the theory of self-defense was tantamount to directing a
 guilty verdict and that this instruction was plain error.  Defendant relies
 primarily on State v. Camley, in which this Court held that "a judge's
 instructions may not direct a verdict of guilty no matter how overwhelming
 or conclusive the evidence."  State v. Camley, 140 Vt. 483, 489, 438 A.2d 1131, 1134, (1981).  In Camley, we held that a misleading jury instruction
 was cause for a new trial under the plain error standard of review.  Id. at
 489-90, 438 A.2d  at 1134.  Camley is distinguishable from the case at bar
 because in Camley the trial court removed from the jury the option of a
 general not-guilty verdict.  The Camley Court focused on the role of the
 judge in giving jury instructions.  The Court noted that Vermont law
 "restrains a judge from commenting on the evidence in a way which gives
 undue prominence to any fact, claim or circumstance."  Id. at 489, 438 A.2d 
 at 1134.  The Court concluded that the judge's failure to expressly mention
 the possibility of a not-guilty verdict constituted an "impermissible
 comment."  Id. at 489-90, 438 A.2d  at 1134.
        In the present case, the court repeatedly instructed the jury of the
 State's burden of proof beyond a reasonable doubt.  The instruction
 carefully informed the jury about the elements of the crime charged and the
 lesser-included offenses, and expressly informed the jury that it must
 acquit if it had a reasonable doubt that defendant was guilty.  Read in its
 entirety, see State v. Valley, 153 Vt. at 398, 571 A.2d  at 588, the
 instruction informed the jury that if the jury found that defendant did not
 act in self-defense, then he was guilty of one of the offenses charged only
 if its elements were proven.  Taken as a whole, the instructions would not
 have thwarted the jury from returning a general not-guilty verdict.  Thus,
 because defendant has not shown that he was prejudiced, there was no plain
 error.
      Next, defendant contends that the self-defense instruction was
 incomplete because it did not adequately present defendant's self-defense
 theory to the jury.  Specifically, defendant claims that the trial judge
 incorrectly denied defendant's request to instruct the jury that boots can
 be considered a deadly weapon which justify using lethal force, and that
 "renewed passion" could have caused defendant to act in the heat of passion.
 We disagree on both points because the "trial court is free to choose its
 own language in phrasing the charge."  State v. Davignon, 152 Vt. 209, 216,
 565 A.2d 1301, 1305 (1989).  The instruction will be upheld provided the
 court instructs on every theory which is fairly put forward by the evidence.
 State v. Day, 149 Vt. 165, 166-167, 540 A.2d 1042, 1043 (1987).
      Here, the court properly instructed the jury on the issue of self-
 defense, pointing out that the jury must "determine if it reasonably
 appeared to the Defendant that he was in danger of death or serious bodily
 harm."  The court also instructed the jury that it must consider whether the
 force used by the defendant was reasonable from his vantage point and that
 the jury was to consider the totality of the circumstances.  The instruction
 thus allowed the jury to consider whether the victim's previous assault upon
 defendant justified defendant's subsequent lethal force.  The charge
 provided ample guidance regarding defendant's claim that lethal force was
 necessary under the circumstances.
      Likewise, the jury was given adequate guidance as to the heat-of-
 passion claim.  Defendant does not argue that whatever passion arose from
 the victim's first attack persisted into the second confrontation.  Rather,
 he argues that his passion was renewed by the second conflict.  Thus, under
 this theory of renewed passion, the proper focus of the jury's
 consideration would have been the amount of passion present during the
 second conflict.  The trial court carefully explained the concept of sudden
 passion to the jury in its instructions.  The charge properly focused on the
 possible existence of passion at the time of the offense and the
 circumstances in which defendant found himself.  The instruction on heat of
 passion provided adequate guidance as to this issue.
      Defendant's next contention is that the trial judge erroneously charged
 the jury to reconcile conflicting testimony on the theory that each of the
 witnesses was sworn to tell the truth.  This Court has warned that
 "[i]nstructions [which] presume that witnesses are truthtellers pass
 dangerously close to unconstitutional shifts in the State's burden of proof
 and presumption of innocence, and threaten to diminish the jury's role as
 arbiter of credibility."  State v. Snide, 151 Vt. 343, 345, 560 A.2d 380,
 381 (1989).  In Snide, however, we upheld a jury instruction that the jury
 should resolve conflicting testimony on the theory that "all witnesses are
 presumed to have testified truthfully."  Id. at 344, 560 A.2d  at 381.   The
 instruction was acceptable because "the purpose of the instruction was to
 guide the jury in resolution of directly conflicting evidence, and was not
 given as a general means of assessing witness credibility."  Id. at 345, 560 A.2d  at 382.  Moreover, the Snide jury charge contained repeated
 instructions describing the State's burden of proof and presumption of
 innocence.
      As in Snide, the purpose of the challenged instruction was to guide the
 jury in resolving directly conflicting testimony, not to direct the jury in
 assessing witness credibility.  The trial judge advised the jury that it
 could accept or reject each witness's testimony, and that it alone could
 decide which or what portion of trial testimony was true.  Additionally, the
 jury was instructed that a witness's bias, interest in the outcome,
 opportunity to observe, and demeanor should be considered in evaluating
 witness credibility.  When viewed as a whole, the charge was balanced and
 fair.
      Defendant's final contention is that the trial court committed
 prejudicial error by instructing the jury that the defendant's "flight"
 could be considered as evidence of guilt.  The court gave the following
 instruction:
           Evidence of flight.  Members of the jury, you may also
         consider the evidence of flight by the Defendant.
         Evidence tending to show flight of the Defendant
         immediately after the commission of the alleged offense
         with which he stands charged and for which he is on
         trial is admissible, and if unexplained, tends to show
         guilt.

           It is proper for a jury to consider the testimony of
         the extent of the flight together with the actions and
         doings of the Defendant tending to characterize it.

           In your consideration of the evidence of flight you
         should consider fully that there may be reasons for the
         flight which are fully consistent with innocence.  Such
         reasons might include fear of being apprehended,
         unwillingness to confront the police, panic, or
         reluctance to appear as a witness.  A feeling of guilt
         does not necessarily reflect actual guilt.

 Defendant argues that this instruction improperly focused the jury's
 attention on one piece of circumstantial evidence.  We reject this claim.
 It is proper for the jury to consider flight evidence as it tends to show
 consciousness of guilt.  State v. Dugee, 101 Vt. 491, 494, 144 A. 689, 690
 (1929).  In State v. Billado, 141 Vt. 175, 188, 446 A.2d 778, 785 (1982), we
 held that "[g]iving an instruction on flight is fully consistent with the
 law in this state."  Evidence of flight, however, is generally considered
 to have little probative value, and is not sufficient by itself to support a
 conviction.  State v. Unwin, 139 Vt. 186, 193, 424 A.2d 251, 255 (1980).
      The evidence showed that, immediately after the shooting, defendant ran
 out of the hotel.  He proceeded to a friend's house to borrow money for a
 cab.  Defendant then traveled over a frozen river to a motel where he took a
 cab to another friend's house.  At the second friend's house, unbeknownst to
 the friend, defendant slept in a parked car in the garage.  Defendant had a
 small-caliber hand gun in his possession throughout his flight.  The next
 day, defendant turned himself in to the Vermont State Police.  The flight
 instruction was supported by the evidence presented at trial and was not
 prejudicial.
      Affirmed.

                                         FOR THE COURT:



                                         Chief Justice

-------------------------------------------------------------------------------
                                 Concurring

 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. 91-355


 State of Vermont                             Supreme Court

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

 Terrance L. Pelican                          October Term, 1992



 George T. Costes, J.

 Howard E. VanBenthuysen, Franklin County State's Attorney, St. Albans,
   for plaintiff-appellee

 E.M. Allen, Defender General, and Henry Hinton, Appellate Attorney,
   Montpelier, for defendant-appellant



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



      MORSE, J., concurring.    Although I agree with the Court's result, I
 do not think any error, let alone plain error, was committed under point II,
 and I have a basic disagreement with the analysis in point III.
      In point II, defendant claims that the trial court was wrong to
 instruct the jury that diminished capacity from intoxication served only to
 "negate" malice.  But, defendant's position that diminished mental capacity
 can also defeat the intent-to-kill element necessary to prove voluntary
 manslaughter is simply contrary to our case law.
      We recently instructed that "malice" should no longer be used to
 describe the mental state required for murder.  State v. Johnson, ___ Vt.
 ___, ___, 615 A.2d 132, 138 (1992) (court should charge "appropriate states
 of mind required for each type of murder" rather than "describing malice as
 a requisite element of murder").  Second degree murder requires "'an
 intention to kill, an intention to do great bodily harm, or a wanton
 disregard of the likelihood that one's behavior may naturally cause death or
 great bodily harm.'"  Id. at ___, 615 A.2d  at 137 (quoting State v.
 Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983)).  Although we have
 spoken previously of diminished capacity as "negating" malice, the correct
 way of explaining its effect is as a defense mitigating the degree of
 homicide from murder to voluntary manslaughter.  Like second degree murder,
 voluntary manslaughter is an intentional killing, but, unlike second degree
 murder, it is "committed under extenuating circumstances that would
 mitigate, but not justify, the killing."  Id. at 138 n.4.
      "Diminished" is not "eliminated."  It would be improper for the jury
 to acquit defendant because his capacity to develop a specific intent to
 kill was diminished.  Rather, the diminished capacity defense operates only
 to lessen the culpability for the killing, not excuse it altogether.  See
 State v. Wheelock, ___ Vt. ___, ___, 609 A.2d 972, 976 (1992) ("[i]ntoxi-
 cation may be considered in reducing the culpability of a crime from, for
 example, murder to manslaughter, but under a claim of self-defense, it
 cannot excuse a defendant from any criminal culpability").
      In point III, the Court distinguishes this case from State v. Camley,
 140 Vt. 483, 438 A.2d 1131 (1981), because in Camley the trial court never
 told the jury it could acquit the defendant, while here the trial court told
 the jury it must acquit defendant if it had a reasonable doubt that he was
 guilty.  In the Court's words, Camley "removed from the jury the option of a
 general not-guilty verdict."  I do not think Camley can be reasonably
 distinguished on that basis.
      Here, the trial court instructed the jury, "Should you find that the
 state proved beyond a reasonable doubt that the defendant did not act in
 self-defense, you must find the defendant guilty of one of the offenses
 charged."  (Emphasis added).  That instruction plainly "removed from the
 jury the option of a general not-guilty verdict."  The court gave an
 unqualified instruction that the jury must convict defendant of homicide if
 it did not find he acted in self-defense.  Given the nature of the defense,
 the jury could not conclude the instruction meant otherwise.  This case was
 tried as if a general not-guilty verdict was not an option.  The entire
 defense rested on a choice: either defendant was not guilty due to self-
 defense or, failing that, he was guilty only of manslaughter.  The trial
 focused on three factual issues: Did defendant kill the victim in self-
 defense, or, if not, did he kill in the heat of passion or with diminished
 mental capacity due to intoxication.  A factual issue decidedly not in
 dispute was whether defendant killed the victim.
       Since it appeared in 1981, Camley has been significantly eroded and
 we should now overrule the doctrine of plain error per se.  A recent case,
 State v. Roy, 151 Vt. 17, 557 A.2d 884 (1989), was a harbinger of Camley's
 demise.
      The Roy trial court, with defendant's apparent approval, had not
 instructed the jury that knowledge that the victim of an assault was a
 police officer was an element of the charged crime, simple assault on a
 police officer.  We stated that "other aspects of the charge . . . cover[ed]
 the omission at least in part . . . [and] '[a]n omission, or an incomplete
 instruction, is less likely to be prejudicial than a misstatement of the
 law.'"  Id. at 22-23, 557 A.2d  at 888 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).  In addition, the Court criticized the creation of
 categories of plain error per se, preferring instead traditional case-by-
 case plain error analysis:
         [W]hen we have examined cases where there is no
         objection below, we have consistently required a showing
         of plain error.  This Court has not found that some
         errors are plain per se.  Most recently in State v.
         Duff, 150 Vt. 329, 554 A.2d 214 (1988), we decided a
         case where the defendant admitted committing a homicide
         but argued that he was guilty only of voluntary
         manslaughter by virtue of diminished capacity.  The jury
         convicted the defendant of murder after the trial judge
         misdefined the elements of the crime of voluntary
         manslaughter by adding an element that was not part of
         the crime.  This Court analyzed the charge error under
         the traditional plain error test although the practical
         effect of the error was to omit or misdefine an
         essential element of murder, the crime of which the
         defendant was convicted.

           We believe it would be bad policy to create a category
         of errors which are plain per se.

 Id. at 23, 557 A.2d  at 888.
      Plain error per se is inconsistent with V.R.Cr.P. 52(b) ("[p]lain
 errors . . . may be noticed") (emphasis added), which emphasizes the Court's
 discretion rather than per se rules.  See also State v. Weeks, No. 91-284,
 slip op. at 8 (June 18, 1993) (applying plain error rule "involves appellate
 discretion and weighing of all relevant factors," particularly prejudice to
 defendant); United States v. Olano, 113 S. Ct. 1770, 1778 (1993) (although
 some categories of plain error per se may exist, "normally . . . defendant
 must make a specific showing of prejudice" to qualify for relief under Rule
 52(b)).  We should resort to a per se analysis only when we are unable to do
 a meaningful particularized analysis.  Cf. Sullivan v. Louisiana, 113 S. Ct. 2078, 2081-82 (1993) (constitutional errors are reversible per se only when
 they affect framework of a trial, rendering harmless error analysis
 ineffective).  In Sullivan, the Court held that an incorrect instruction on
 reasonable doubt tainted the entire trial making it impossible for an
 appellate court to do more than speculate about whether the jury's verdict
 was attributable to the error.  Id.  Consequently, the Court was unable to
 perform its particularized harmless error analysis, that is, "whether the
 guilty verdict rendered in this trial was surely unattributable to the
 error."  Id. at 2081.  There is, however, "'a strong presumption'" that
 errors are not in the per se category, id. at 2083 (Rehnquist, J.,
 concurring) (quoting Rose v. Clark, 478 U.S. 570, 579 (1986), but rather are
 simply "trial error" that can be accorded contextual analysis.  Arizona v.
 Fulminante, 111 S. Ct. 1246, 1265 (1991).  The jury-charge error here does
 not evade plain-error analysis.  We can evaluate it within the defense
 strategy and its prejudice ÄÄ or lack of it ÄÄ to defendant.  We should not
 resort to formulas instead of analysis.
      Moreover, as the Court recognized in Roy, the doctrine of plain error
 per se is bad as a matter of policy because it eviscerates V.R.Cr.P. 30
 (requiring an objection to preserve claim of error injury instruction).  A
 defendant who gains no advantage by objecting ÄÄ given the virtual certainty
 that the court will correct the error and thereby remove the basis for a
 winnable appeal ÄÄ has no incentive "to object to errors that involve
 omissions of essential elements of the crime."  151 Vt. at 23, 557 A.2d  at
 888.  Precisely because defendant gains from overlooking the court's error,
 requiring an objection becomes more compelling.  A defendant who fails to
 object in these circumstances should at least risk a normal plain error
 analysis.  See State v. Giroux, 151 Vt. 361, 365, 561 A.2d 403, 406 (1989)
 (because defense theory was false accusation and defendant's intent was not
 put in issue at trial, failure to instruct on element of intent in touching
 sexual assault victim was not prejudicial to defendant and therefore not
 plain error).
      Instead, under Camley's plain error per se doctrine, a defendant has
 the assurance that, if convicted, on appeal he will be given a new trial.
 No policy asserted in favor of per se error is worth that cost to the
 criminal justice system.  Roy not Camley provides the approach this Court
 should follow in determining whether jury instructions are plain error.




                                         _________________________________
                                         James L. Morse, Associate Justice