State v. Nunez

ENTRY_ORDER.92-467; 162 Vt. 615; 647 A.2d 1006



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-467

                              MARCH TERM, 1994


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 1, Windsor District
                                   }
 Albert Nunez                      }
                                   }          DOCKET NO. 1804/6-11-88 WrCr


              In the above entitled cause the Clerk will enter:

      Defendant Albert Nunez was charged with two counts of burglary, and
 one of simple assault, all arising out of his actions in response to the
 failure of his intimate relationship with Deborah Falzarano.  One burglary
 occurred at the home of Ms. Falzarano and the other at the home of her
 sister.  The simple assault occurred during a meeting between defendant and
 Falzarano.  Defendant appeals from his conviction on all three counts.  We
 affirm.

      Defendant first argues that the trial court erred in failing to sever
 the two burglary counts.  The trial court denied the motion to sever because
 the burglaries were part of a common plan to extract revenge against
 Falzarano, as alleged by the State.  Notwithstanding the merits of
 defendant's argument, defendant failed to renew his severance motion at the
 close of the evidence as required by V.R.Cr.P. 14(b)(4)(B).  Consequently,
 he has waived his right to raise the issue on appeal.  See State v. Venman,
 151 Vt. 561, 566-67, 564 A.2d 574, 578-79 (1989) (failure to renew motion to
 sever at close of evidence, when all relevant facts known, waives any right
 to argue severance on appeal).

      Second, defendant argues that the court erred in admitting a statement
 made by defendant to Reverend George Abetti.  During a telephone
 conversation initiated by defendant, Reverend Abetti, Falzarano's minister,
 informed defendant that Falzarano's home had been burglarized, to which
 defendant replied:  "Well, to tell you the truth, I was only trying to scare
 the hell out of her."  Defendant sought to have this statement excluded
 under V.R.E. 505(b), which provides that "[a] person has a privilege to . .
 . prevent another from disclosing a confidential communication by the person
 to a clergyman in his professional character as a spiritual adviser."
 Defendant bore the burden of demonstrating that his statement to Reverend
 Abetti was a privileged one.  See State v. Kennison, 149 Vt. 643, 648, 546 A.2d 190, 193 (1987) (person claiming attorney-client privilege bears burden
 of establishing that communication was privileged), cert. denied, 486 U.S. 1011 (1988).  However, defendant failed to show he made this statement to
 Reverend Abetti acting in a capacity as defendant's spiritual adviser.
 Neither the fact that defendant initiated the telephone call nor that the

 

 communication could be construed as a penitent statement in confession to a
 crime overcomes the absence of this essential element of the privilege.

      Third, defendant argues that the court erred in admitting statements he
 made to a state police officer during an October 1988 telephone conversation
 after defendant invoked his right to remain silent, but was told by the
 officer that this right did not apply outside of the courtroom.  During this
 conversation, defendant made a number of statements later proved false in
 attempting to establish his alibi for the burglaries.  The officer's
 erroneous legal opinion, however, is not conclusive as to the admissibility
 of defendant's statements.  Defendant attempts to paint this as a case in
 which the officer's statement was intentional misinformation used to elicit
 incriminating evidence, tantamount to the use of "threats, improper
 influence or physical or psychological pressure to extract a confession."
 State v. Zehner, 142 Vt. 251, 253, 453 A.2d 1126, 1127 (1982).  This
 characterization ignores that fact that defendant's telephone call to the
 officer was entirely voluntary, and that defendant did not confess to the
 crimes during the conversation.  There was no error in admitting defendant's
 statements.

      Fourth, defendant argues that the court erred in denying his motion for
 acquittal on the burglary charges.  Emphasizing that the State's case was
 based entirely on circumstantial evidence, defendant argues that the State
 failed to exclude every reasonable hypothesis of innocence.  Defendant's
 argument is based on the theory that special standards are required to
 evaluate prosecutions based on circumstantial evidence; however, this Court
 specifically rejected that proposition in State v. Derouchie, 140 Vt. 437,
 445, 440 A.2d 146, 149-50 (1981).  Accordingly, in reviewing the denial of
 defendant's motion for acquittal, we will view the evidence in the light
 most favorable to the State.  State v. Elkins, 155 Vt. 9, 17-18, 580 A.2d 1200, 102 (1990).  Viewed in this manner, we conclude that the evidence on
 both burglaries was detailed, probative and ample in quantity.  Therefore,
 defendant's motion was properly denied.

      Fifth, defendant complains that the prosecutor was allowed to claim in
 closing argument that a witness identified defendant at the scene of one of
 the burglaries when, in fact, the witness could not identify defendant as
 the person observed.  Actually, the prosecutor stated only that the witness
 observed a person who "resembled" defendant.  This was a fair comment on the
 evidence.

      Finally, with respect to the assault charge, defendant claims that the
 court erred in failing to instruct the jury that defendant acted in self-
 defense.  A court's obligation to charge on a defendant's theory is limited
 to situations in which there is evidence supporting the theory.  See State
 v. Wright, 154 Vt. 512, 518-19, 581 A.2d 720, 724-25 (1989) (no error in
 court's failure to instruct on lesser-included offenses when no evidence
 that would support such instruction), cert. denied, 498 U.S. 1032 (1991);
 State v. Drown, 148 Vt. 311, 312-13, 532 A.2d 575, 577 (1987) (per curiam)
 (reversible error for court to fail to charge on defense theory that,
 despite weaknesses, had evidentiary support).  The victim testified to the
 events on which the assault charge was based, and her testimony was
 supported by that of police officers.  Defendant testified on his own
 behalf, but had no memory of the events surrounding the assault.  While

 

 there was evidence that defendant's glasses were broken during the
 confrontation, defendant produced no other evidence to support his
 allegation of self-defense.  There was no error in court's refusal to charge
 self-defense.

      Affirmed.

                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice


 [ ]  Publish                       Ernest W. Gibson III, Associate Justice

 [ ]  Do Not Publish
                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice