State v. Delisle

Annotate this Case
STATE_V_DELISLE.92-039; 162 Vt. 293; 648 A.2d 632

[Opinion Filed July 1, 1994]

[Motion for Reargument Denied ]

 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. 92-039


 State of Vermont                             Supreme Court

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

 Wayne E. Delisle                             February Term, 1993



 Michael J. Kupersmith, J.


 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
    Attorney General, Montpelier, for plaintiff-appellee

 Peter F. Langrock and Mitchell L. Pearl of Langrock Sperry & Wool,
    Middlebury, for defendant-appellant


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



      MORSE, J.    Defendant appeals a jury conviction of second-degree
 murder.  The principal issue is how the jury should be instructed when a
 lesser-included offense supported by the evidence is barred by the statute
 of limitations.  We conclude that, in such a situation, the defendant should
 have a choice between foregoing an instruction on the lesser offense or
 obtaining an instruction informing the jury that, because the passage of
 time precludes prosecution for the lesser offense, it must acquit the
 defendant if it determines the evidence would support a conviction for that

 

 offense alone.  Because the court refused defendant's alternative request to
 give a similar instruction, we reverse and remand for a new trial.
                                     I.
      On November 4, 1976, Richard Gonyo reported to the Vermont State Police
 that his wife, Laurie, was missing.  Her body was found eight months later
 in the Lamoille River, wrapped in a tarp, bound with rope, and weighted down
 by cement blocks.  Although the police considered defendant a suspect, no
 charges were brought against him at that time, and the case was classified
 as unsolved.  In late 1989 or early 1990, defendant's son, Wayne "Bud"
 Delisle, who was eleven years old in 1976, went to the police with evidence
 implicating his father in Laurie Gonyo's murder.  On March 7, 1990, the
 State charged defendant with first-degree murder.
      At trial, the State presented evidence that the items used to wrap,
 bind, and weigh down the victim's body were indistinguishable from similar
 items gathered from defendant's property, which adjoined the victim's
 property.  The state pathologist testified that the cause of death was
 manual strangulation.  The State also introduced evidence that defendant and
 the victim had quarreled the night before she disappeared.  Bud testified
 that the victim threatened to tell "a dark tale" about defendant if he did
 not take her horses to be shod the next day and did not give her new horse
 blankets.  Bud also testified that during this argument defendant threatened
 to kill the victim.  Bud then testified as to defendant's activities on the
 morning of the day the victim disappeared, explaining that his father broke
 with his normal routine.  Bud testified that his father went toward the
 Gonyo residence, returned shortly thereafter, threw a tarp and some other
 items into the back of a pickup truck, and drove off.  The State also

 

 presented evidence that defendant fled the area after the victim disappeared
 and introduced arguably inculpatory statements made by defendant.  It was
 also undisputed that defendant and the victim had been involved in what the
 State described to the jury as "a torrid love affair."
      Defendant maintained that he was innocent and that somebody else had
 killed Laurie Gonyo.  He offered the alibi that he was at work in a store
 owned by his parents, which they corroborated.  Defendant also explained
 that he left the area because the victim's husband threatened him, not
 because of the victim's disappearance.
      The court instructed the jury on first-degree murder and the lesser-
 included offense of second-degree murder, but not voluntary manslaughter.
 Instead, the court instructed the jury that if the State failed to prove all
 of the elements of murder in the first or second degree, the jury must
 acquit defendant even if the State proved beyond a reasonable doubt that he
 had killed the victim.  The jury convicted defendant of second-degree
 murder, and the court sentenced him to twenty-to-fifty years in prison.
      Defendant claims on appeal that: (1) the trial court had accepted and
 was bound by a plea agreement to voluntary manslaughter, and even if the
 trial court was not bound by the plea agreement, it abused its discretion in
 rejecting the plea; (2) the trial court erred in refusing to charge the jury
 on the lesser-included offense of manslaughter; (3) the State did not
 present sufficient mens rea evidence for a second-degree murder conviction;
 (4) the court erred in allowing the State to give evidence concerning
 tangible evidence that it had lost; and (5) due process requires reversal
 because of the age of the case and inability to defend.  Defendant raises

 

 other issues that we need not reach in light of our disposition of this
 case.
                                     II.
      Defendant first argues that the trial court accepted, and thus was
 bound by, the terms of a plea agreement reached by the parties.  He also
 contends that, even if the court was not bound by the parties' agreement, it
 abused its discretion in rejecting the agreement.
      On October 15, 1990, the parties informed the court that defendant
 agreed to plead no contest to the charge of manslaughter, and, in return,
 the State agreed to recommend a sentence of not less than four nor more than
 ten years, all suspended except for two years to serve, minus credit for
 time already served.  During its colloquy with defendant to assure that the
 plea was knowing and voluntary, the court informed defendant that he would
 be given the sentence he agreed to "assuming that I'm able to consummate the
 plea agreement for you."  The court also informed defendant that he could
 withdraw the plea "right through these proceedings."  After hearing a
 rendition of the facts of the case, the court asked the State why it decided
 to enter into the plea agreement.  The State explained that it was a
 "tactical decision" motivated primarily by the age of the case, but it
 conceded that the victim's mother was frustrated by the proposed sentence.
 The court responded as follows: "Okay.  I'm going to be ordering a
 presentence report.  I think it's important in this case."  The court then
 entered an adjudication of guilt and stated that it would set a sentencing
 hearing after it had a chance to review the report.
      Before the sentencing hearing, the court advised counsel in chambers
 that it had serious reservations about accepting the plea agreement.  Both

 

 parties filed memoranda in support of the agreement, and then argued for the
 agreement at a February 28, 1991 hearing.  While conceding that it had not
 specifically informed defendant at the October 15, 1990 hearing that it was
 deferring a decision on whether to accept or reject the plea agreement, the
 court stated that "that is the fairest interpretation of what occurred at
 that time."  Noting that it had ordered the presentence report "to give me
 the advantage of having the probation officer's input and to reflect myself
 at greater length on what an appropriate sentence would be," the court
 concluded that it did not "believe that the plea agreement calls for an
 appropriate sentence given the nature of this offense."
      Defendant contends that, in failing explicitly to defer its decision on
 whether to accept or reject the agreement at the October 15, 1990 hearing,
 the court accepted the agreement and was bound by it.  In support of its
 contention, the state cites federal case law, particularly United States v.
 Holman, 728 F.2d 809, 812 (6th Cir.), cert. denied, 464 U.S. (1984), for the
 proposition that a court's failure explicitly to reject, or defer a decision
 on, a plea agreement amounts to an acceptance of the agreement.  The State
 counters that the court was not bound by the agreement because, unlike
 Federal Rule of Criminal Procedure 11(e)(2), Vermont Rule 11(e)(2)-(3)
 explicitly provides that a plea agreement neither binds the court nor limits
 its imposition of judgment or sentence unless the court informs the
 defendant that the maximum judgment and sentence it will impose is the one
 provided for in the agreement.  We conclude the court was not bound by the
 agreement.
      Once the prosecuting attorney has disclosed the terms and reasons for a

 

 plea agreement, Vermont Rule of Criminal Procedure 11(e)(2)-(4) sets forth
 the following procedure:
           (2) Notice of Such Agreement.  . . . . Thereupon the court,
      before entry of the plea, may accept or reject the agreement, or
      defer its decision as to acceptance or rejection until there has
      been an opportunity to consider the presentence report.  The plea
      agreement shall not be binding upon the court nor shall it limit
      the court in the judgment and sentence to be imposed unless the
      court accepts the plea agreement under subdivision (e)(3) of this
      rule.

           (3) Acceptance of Plea Agreement.  If the court accepts the
      plea agreement, the court shall inform the defendant that it will
      embody in the judgment and sentence the disposition provided for
      in the plea agreement or a less onerous disposition.

           (4) Rejection of Plea Agreement.  If the court rejects the
      plea agreement or defers decision upon it, the court shall inform
      the parties of this fact, advise the defendant personally in open
      court that the court is or may not be bound by the plea agreement,
      pursuant to Rule 32(d) afford a defendant who has already pleaded
      the opportunity to then withdraw his plea, and advise the
      defendant that if he persists in his plea the disposition of the
      case may be less favorable to the defendant than that contemplated
      by the plea agreement.
      Our reading of the transcript of the plea hearing leads us to conclude
 that the court intended to defer a final decision on whether to accept or
 reject the plea agreement until it had an opportunity to review the
 presentence report.  Further, because the Vermont rule states that the court
 is not bound by a plea agreement unless it informs the defendant that the
 strictest judgment and sentence it will impose is the one provided in the
 agreement, see V.R.Cr.P. 11(e)(2), (3), we reject defendant's argument that
 an acceptance must be presumed unless the court explicitly rejects the
 agreement or defers its decision.  We recognize that the court did not defer
 its decision in the exact terms provided in subsection 11(e)(4), but the
 court suggested that it had not yet decided whether to accept the agreement,
 and it informed defendant that he could still withdraw his plea.  While we

 

 encourage the courts to follow subsection 11(e)(4) to the letter, we cannot
 conclude in this instance that the court accepted the agreement.  Cf. State
 v. Whitney, 156 Vt. 301, 302, 591 A.2d 388, 389 (1991) (while it is "better
 practice" for court, when deciding whether to accept guilty plea, to
 explain to defendant elements of offense and factual allegations comprising
 offense, V.R.Cr.P. 11(f) "is not a per se rule").
      Defendant argues, however, that even if the court was not bound by the
 plea agreement, it abused its discretion by not accepting the agreement.  We
 find no abuse of discretion.  The court determined that, despite the long
 delay in bringing the prosecution, the relatively light sentence proposed
 was inappropriate given the nature of the crime.  This was a sufficient
 reason for the court to reject the agreement.  See United States v. Miller,
 722 F.2d 562, 563 (9th Cir. 1983) ("Rule 11 also contemplates the rejection
 of a negotiated plea when the district court believes that the bargain is
 too lenient, or otherwise not in the public interest.").  Further, the
 record does not support defendant's contention that the court capitulated to
 public pressure.
                                    III.
      Next, we address defendant's challenge to the trial court's refusal to
 charge the jury on manslaughter.  Defendant requested a jury instruction on
 manslaughter as well as first- and second-degree murder.  The requested
 charge would have allowed the jury to find defendant guilty of manslaughter,
 even though the three-year statute of limitations had run on that offense.
 See 13 V.S.A. { 4501.  In the alternative, defendant requested that the
 court charge the jurors on the definition of manslaughter, and then instruct
 them to acquit if they found that he had committed that offense only.  The

 

 trial court indicated that it would not instruct the jury on manslaughter
 unless defendant waived the statute of limitations on a manslaughter
 prosecution.  Defendant refused to waive the limitations bar, and the court
 charged the jury on first- and second-degree murder only.
      Defendant argues that the trial court erred by requiring him to waive
 the statute of limitations as a condition of having the jury instructed on
 a lesser-included offense.  He contends that the statute-of-limitations bar
 does not conflict with his right to have lesser-included offenses charged.
 Rather, defendant maintains, if the jury were instructed on manslaughter and
 returned a guilty verdict on that charge, then the statute of limitations
 would operate to prevent the court from entering judgment on the verdict.
 Thus, defendant argues, the jury charge was not sufficient and his
 conviction must be reversed.  On the other hand, the State argues that if a
 defendant is not required to elect between the two rights, then the
 defendant can "have his cake and eat it, too" by receiving the lesser-
 included-offense instruction and then avoiding punishment if convicted on
 that offense only.
      As a general rule, a criminal defendant is entitled to have the jury
 instructed on all lesser-included offenses.  State v. Bolio, 159 Vt. 250,
 252, 617 A.2d 885, 886 (1992); see Reporter's Notes, V.R.Cr.P. 31(c).
 Murder in the second degree and manslaughter are lesser-included offenses of
 first-degree murder.  See 13 V.S.A. { 2310 (second-degree murder); State v.
 Averill, 85 Vt. 115, 132, 81 A. 461, 467 (1911) (manslaughter).  A requested
 charge on a lesser-included offense will be given, however, only if the
 facts in evidence reasonably support such an instruction.  State v. Wright,

 

 154 Vt. 512, 518, 581 A.2d 720, 724-25 (1989), cert. denied, 498 U.S. 1032
 (1991).
      Citing Wright, the State argues that the trial judge did not err in
 refusing to instruct the jury on voluntary manslaughter because the evi-
 dence did not support such an instruction.  The State reasons that because
 defendant contended that he was not involved in the victim's death or the
 concealment of her body, there was no evidence to support a jury determin-
 ation that defendant acted with sudden passion, under great provocation, or
 diminished capacity -- the mitigating factors supporting manslaughter.
      We are reluctant to conclude that the evidence did not support an
 instruction on manslaughter.  "[V]oluntary manslaughter is an intentional
 killing committed under extenuating circumstances that would mitigate, but
 not justify, the killing, such as provocation that would cause a reasonable
 person to lose self control."  State v. Johnson, 158 Vt. 508, 518 n.4, 615 A.2d 132, 138 n.4 (1992).  The evidence showed that the victim and defendant
 were in a deteriorating love affair and the victim had threatened defendant
 that she had "a dark tale" to tell.  In addition, the manner of death was
 manual strangulation.  These facts could conceivably have led the jury to
 conclude that this was an unlawful killing committed in the heat of passion.
 Indeed, even the State, while arguing in support of the rejected plea
 agreement, conceded that this "could have been a crime of passion," and the
 trial court acknowledged that an instruction on manslaughter would have been
 appropriate if the statute of limitations had not run on that offense.
      We must address, then, the issue of how to instruct the jury when
 defendant seeks an instruction on a time-barred, lesser-included offense
 that is supported by the evidence.  In Spaziano v. Florida, 468 U.S. 447

 

 (1984), the United States Supreme Court considered this dilemma.  In that
 case, as in this one, the trial court had agreed to instruct the jury on
 lesser-included offenses only if defendant waived the limitations bar.  The
 defendant refused to do so, the court instructed the jury on capital murder
 only, and the jury convicted the defendant.  The Supreme Court affirmed the
 conviction, holding that a defendant is not constitutionally entitled to a
 lesser-included offense instruction when prosecution for that offense is
 barred by the statute of limitations; instead, the defendant may choose to
 waive the limitations bar and obtain the requested instruction.  Id. at 456.
      In so holding, the Supreme Court was required to harmonize its decision
 with Beck v. Alabama, 447 U.S. 625 (1980), which "made clear that in a
 capital trial, a lesser included offense instruction is a necessary element
 of a constitutionally fair trial."  Spaziano, 468 U.S.  at 455.  The Court
 distinguished Beck, explaining that
              [t]he element . . . in Beck found essential to a fair trial was
              not simply a lesser included offense instruction in the abstract,
              but the enhanced rationality and reliability the existence of the
              instruction introduced into the jury's deliberations.  Where no
              lesser included offense exists, a lesser included offense
              instruction detracts from, rather than enhances, the rationality
              of the process.

 Id. (emphasis added).  The Court reasoned that requiring the lesser-
 included-offense instruction after the statute of limitations had run "would
 simply introduce another type of distortion into the fact-finding process"
 by tricking the jury "into believing that it has a choice of crimes for
 which to find the defendant guilty, [when] in reality there is no choice."
 Id. at 456.  According to the Court, such a rule would undermine the
 public's confidence in the criminal justice system and would do serious
 disservice to the goal of rationality stated in Beck.  Id.  The Court

 

 concluded that the "better option" was to give the defendant a choice
 between either asserting the statute of limitations and not receiving an
 instruction on the lesser-included offense or waiving the statute of
 limitations and receiving an instruction on the lesser-included offense.
 Id.
      We share the Spaziano Court's concern that instructing juries on time-
 barred, lesser-included offenses is misleading and would undermine the
 public's confidence in the integrity of the criminal justice system.  We
 recognize that this Court has held that a jury does not have a right to
 consider the question of punishment in its deliberations because "knowledge
 concerning punishment could not aid a jury in determining whether or not a
 defendant was guilty of the offense charged," and that "the disposition
 after verdict is for the court, and is not to be charged to the jury."
 State v. Smith, 136 Vt. 520, 526, 396 A.2d 126, 129 (1978) (trial court
 should not inform jury of defendant's institutional disposition if it found
 him not guilty by reason of insanity); see State v. Goyet, 120 Vt. 12, 52-
 53, 132 A.2d 623, 649 (1957) (no error in refusing to charge jury on
 punishment that would result from convictions for different degrees of
 murder); State v. Lapan, 101 Vt. 124, 142-43, 141 A. 686, 695 (1928) (no
 error in court's refusal to comply with jury's request that it be informed
 as to maximum penalty for manslaughter).  But it is one thing to withhold
 from the jury unnecessary information, and quite another to mislead jurors
 by instructing them that they may find a defendant guilty of an offense for
 which there can be no judgment of conviction.  The above cases never
 intended to allow juries to be misled.  Indeed, we have suggested that our
 holding in Smith would not apply in a situation where the jury was misled or

 

 the defendant prejudiced by remarks indicating what might happen to the
 defendant if it reached a particular verdict.  See State v. Percy, 146 Vt.
 475, 478-79, 507 A.2d 955, 957-58 (1986) (prosecutor's single, ambiguous
 remark during closing argument suggesting that defendant would be set free
 if he were found not guilty by reason of insanity did not entitle defendant
 to instruction on consequences of verdict of not guilty by reason of
 insanity).
      Even in jurisdictions like Vermont, where juries have no formal duties
 with regard to sentencing, the jury's role cannot be completely separated
 from punishment.  The members of a jury are aware that the function of a
 criminal trial is to determine culpability so that those found guilty of the
 charged crimes can be punished.  Although the jury will not know the range
 of punishment, it expects that, barring legal error, its verdict will
 stand.  State v. Short, 618 A.2d 316, 325 (N.J. 1993) (O'Hern, J.,
 dissenting).  Thus, allowing a jury to find a defendant guilty of a crime
 for which the defendant cannot be punished, even if the jury has no say in
 what the punishment will be, makes a mockery of the trial.  To do so is "to
 trick jurors into thinking that they are discharging one of the most
 profound responsibilities of a free society when in fact they are not."  Id.
 at 326.  As one court stated, providing the jury with a choice of offenses,
 not all of which are viable,
              would amount to a triumph of form over substance and would
              seriously undermine the credibility of our criminal justice
              system.  Imagine the reaction of a citizen-juror who, after
              finding a defendant guilty of a lesser related misdemeanor, was
              informed that the jury's guilty verdict was a nullity and
              effectively resulted in a complete acquittal.  Such sleight of
              hand cannot be tolerated in a system which strives for openness
              and honesty.

 

 People v. Ognibene, 16 Cal. Rptr. 2d 96, 98 (Ct. App. 1993).  But see State
 v. Muentner, 406 N.W.2d 415, 422-23 (Wis. 1987) (Spaziano's reasoning that
 instruction on time-barred, lesser included offense worked fraud upon jury
 does not apply in Wisconsin, where jury plays no role in sentencing).  In
 short, to instruct the jury on a time-barred offense precludes the jury from
 rendering a verdict with legal effect upon which a judgment can be entered,
 and, consequently, misleads the jury concerning its essential function,
 thereby undermining the very integrity of the criminal justice system.
      Further, allowing such an instruction would show unwarranted distrust
 of juries.  The judicial system depends upon jurors to be fair and
 forthright during deliberations.  It assumes that jurors will follow
 instructions and scrupulously apply the law contained in those instructions
 to the facts found.  Experience has shown that a fully informed jury can be
 trusted to "discharge its functions appropriately."  Short, 618 A.2d  at 326
 (O'Hern, J., dissenting).  Ordinarily the combined intelligence, wisdom, and
 common sense of jurors produces sounder, less biased results than the
 decisions of a single individual.
      We are not convinced, however, that a defendant should be forced to
 choose between obtaining an instruction on a lesser-included charge and
 waiving the statute of limitations for that offense.  Section 2310 of title
 13 provides only that a person tried for murder "may" be convicted of a
 lesser-included offense.  Similarly, V.R.C.P. 31(c) provides, in part, that
 "[t]he defendant may be found guilty of an offense necessarily included in
 the offense charged."
      We conclude, therefore, that the rights of defendants and the integrity
 of the system would be best maintained by providing defendants with the

 

 choice of (1) foregoing an instruction on the time-barred, lesser-included
 offense, or (2) obtaining an instruction informing the jurors that, because
 the passage of time precludes prosecution for the lesser offense, they must
 acquit the defendant if they conclude that the evidence would support a
 conviction of the lesser crime only.  Cf. State v. Chevlin, 284 S.W.2d 563,
 567 (Mo. 1955) (approving use of similar instruction).  We believe that the
 latter instruction can be given in a straightforward, understandable manner
 aided, if necessary, by the use of interrogatories.
      We note that a similar instruction was explicitly rejected by a
 majority of the New Jersey Supreme Court in State v. Short, 618 A.2d  at 324
 (4-3 decision).  In that case, the majority concluded that the trial court
 erred by instructing the jury that it should acquit the defendant upon a
 finding that his conduct constituted manslaughter because the statute of
 limitations had run for that offense.  Id. at 322.  The majority opined that
 by telling the jury that the defendant would go free if it found him guilty
 of manslaughter, "the trial court all but invited the jury to disregard the
 manslaughter instruction."  Id.  In the majority's view, in order not to
 undermine the reasonable doubt standard, the trial court was obliged to give
 the manslaughter instruction without telling the jury that the statute of
 limitations had run or that the defendant would go free.  Id.  The majority
 was unpersuaded by Spaziano because "[t]he core of the jury's duty is to
 determine criminal culpability, not punishment," and the trial court's duty
 is "to prevent the jury from considering evidence or information that would
 unduly prejudice either the State or the defense."  Id. at 323.
      We find the reasoning of the majority in Short unpersuasive for the
 reasons already stated.  We do not agree that instructing jurors on a time-

 

 barred offense without telling them it is time-barred is less deceptive in
 states such as Vermont, where juries do not have a formal role in
 sentencing, than it is in states where juries do play a role in sentencing.
 Further, while we agree that the instruction we favor does not eliminate the
 risk that the jury will convict the defendant of a greater offense than it
 otherwise would in order to avoid an acquittal, we cannot agree with the
 majority in Short that the instruction would invite the jury to disregard
 the manslaughter charge.  As the dissent in Short points out, courts often
 rely on juries to follow instructions on other potentially prejudicial
 matters.  Id. at 325 (O'Hern, J., dissenting).
      Moreover, an instruction on a lesser-included offense serves not only
 to avoid any incentive to convict the defendant of a greater offense than
 the one committed, but it also enables the jury to determine fairly the
 issues presented by the evidence.  Ognibene, 16 Cal. Rptr. 2d  at 97.  At a
 minimum, instructing the jury on the elements of lesser-included offenses,
 even if they are time-barred, serves to sharpen the definitions of the
 crimes for which the defendant can be convicted.  It enables the jury to put
 related crimes in the proper perspective by comparing the elements of one to
 the others.
      In sum, we need not require judges to pull "the wool over jurors' eyes"
 by leading them to believe that "there is a choice of crimes for which to
 find the defendant guilty, when in reality" there is no choice.  Spaziano,
 488 U.S.  at 456; Short, 618 A.2d  at 324 (O'Hern, J., dissenting).  Suspicion
 that jurors will be unduly swayed by the protection afforded under the
 statute of limitations, echoed in the concurrence, is unfounded.  Jurors are

 

 just as capable as other participants in the criminal justice system to
 understand the policies underpinning the three-year statute of limitations.
      Weighing these considerations and the various interests involved, we
 conclude that a defendant should not be required to waive the statute of
 limitations of a lesser-included offense as a condition of having the jury
 instructed on that offense.  Neither do we agree, however, with those
 jurisdictions that require defendants in this situation to forego an
 instruction on the lesser-included offense, see, e.g., People v. Diedrich,
 643 P.2d 971, 982, 182 Cal. Rptr. 354, 365 (1982) (trial court not required
 to instruct on time-barred, lesser-included offense); Gurley v. State, 348 N.E.2d 16, 20-21 (Ind. 1976) (same), or that require trial courts to
 instruct juries on the lesser-included offense without any further
 explanation.  Instead, we hold that defendant should have the option, which
 was never considered by the Court in Spaziano, of receiving an instruction
 on the lesser-included offense, as long as the jury is made aware that the
 running of the statute of limitations precludes defendant's conviction for
 that offense.
      The State argues that, even if defendant were entitled to the jury
 instruction on manslaughter, omission of the instruction was harmless error
 because the jury was instructed to acquit defendant of murder if the State
 proved he killed Laurie Gonyo but failed to meet its burden to prove he did
 so "willingly and deliberately and with malice aforethought."  The State
 raised this same argument in State v. Bolio, 159 Vt. at 254, 617 A.2d  at
 887, contending that if the State had not sustained its burden on the crime
 charged, the jury would have acquitted.  Our response is still that our
 acceptance of such an argument "would effectively negate the right to jury

 

 instructions on a lesser-included offense in every case.  To argue that
 conviction proves the error was harmless is to miss the reason for the
 rule."  Id.
      In this case, the trial court erred in refusing to give defendant's
 alternative proposed instruction, which would have informed the jury that
 defendant must be acquitted if found guilty of manslaughter.  For that
 reason, the verdict must be reversed and the case remanded for a new trial.
 Although we reverse on this point, we address the remaining issues in which
 defendant seeks acquittal or dismissal of the charges.
                                     IV.
      Defendant next argues that his conviction must be reversed because the
 trial court improperly denied his post-trial motion for judgment of
 acquittal.  Defendant claims that the State failed to present sufficient
 evidence of identity, deliberation, or malice for any reasonable jury to
 have found defendant guilty of second-degree murder beyond a reasonable
 doubt.
      The standard of review for denial of a V.R.Cr.P. 29 motion for
 judgment of acquittal is 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."  State v. McBurney, 145 Vt. 201,
 204, 484 A.2d 926, 928 (1984).
      Defendant contends first that the State failed to introduce evidence
 that fairly and reasonably tended to identify defendant as the victim's
 killer.  The State presented evidence that the knots in the rope binding
 the victim's body were similar to knots found tied in other ropes associated

 

 with defendant.  The body was weighted down with cinder blocks painted with
 black paint in the same pattern as the blocks in the foundation of
 defendant's mobile home.  In addition, the body was wrapped in a black,
 rubberized tarp, similar to ones used by defendant in a trucking business.
 The State also introduced evidence that the victim and defendant were having
 an affair, and defendant threatened the victim's life the night before she
 disappeared.  Moreover, there was evidence that defendant broke from his
 normal routine the morning the victim disappeared, and that he went down the
 road toward the victim's home and returned a short while later for a tarp
 and other objects from his home.  Finally, defendant made inconsistent
 statements about his whereabouts on the day of the disappearance.  While the
 evidence of identity is entirely circumstantial, "guilt in a criminal case
 may be proved by circumstantial evidence alone, if it is proper and
 sufficient in itself."  State v. Messier, 146 Vt. 145, 150, 499 A.2d 32, 37
 (1985).  When the evidence is viewed in the light most favorable to the
 State, it fairly and reasonably tended to show that defendant was the
 victim's killer.  The question was properly put to the jury.
      Defendant also argues that the State failed to produce sufficient
 evidence that if he did kill Laurie Gonyo, he acted with deliberation.  Dr.
 Lawrence Harris, the Chief Medical Examiner at the time the deceased's body
 was discovered, testified that in his opinion, the cause of death was manual
 strangulation, which must be maintained for at least two or three minutes
 before death results.  Dr. Harris did concede that because of the
 deteriorated condition of the body, it was possible the victim died from
 another cause.  When viewed in the light most favorable to the State,

 

 however, the evidence fairly and reasonably tended to show acts of
 deliberation.
      Defendant further argues that the State failed to produce evidence that
 whoever killed the deceased acted with the requisite mental state, or ill
 will, toward her.  To prove murder, it is not necessary to prove defendant
 harbored ill will for the victim.  As the trial court instructed the jury,
 it is sufficient for a second-degree murder conviction that the State prove
 "'an intention to kill, or 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.'"  State v. Johnson, 158 Vt. at 517-18, 615 A.2d  at 137
 (quoting State v. Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983)).  A
 defendant's mental state may reasonably be inferred from the manner of
 death, id., here, manual strangulation for two to three minutes.  Because,
 viewed in the light most favorable to the State, the evidence fairly and
 reasonably tended to show defendant possessed any one of the enumerated
 mental states, the trial court properly left the issue to the province of
 the jury.
                                     V.
      Defendant next asserts that he was prejudiced by the loss of evidence
 -- the tarp and the victim's hyoid bone -- and thereby denied his rights
 under the Fourteenth Amendment to the United States Constitution and Chapter
 I, Article 10 of the Vermont Constitution.  Accordingly, defendant contends,
 the charges should be dismissed or the evidence suppressed.
      The State concedes that it preserved only a small square of the tarp in
 which the body was wrapped when discovered and that it was unable to
 produce for trial the fractured hyoid bone.  Dr. Harris testified that he

 

 preserved the bone in a jar of formaldehyde, but his office had not been
 able to locate the bone.  Defendant speculates that the tangible evidence
 was lost due to the long delay in prosecution.  But the question of when the
 evidence was lost is not the crucial inquiry.  The issue is whether the
 State acted in bad faith and whether defendant was prejudiced.  Regardless
 of when it occurs, the loss of evidence can violate a defendant's
 constitutional rights.
      In Arizona v. Youngblood, 488 U.S. 51 (1988), the United States Supreme
 Court established the federal constitutional standard for proof of denial of
 due process of law when the State loses or fails to preserve evidence.  The
 Court held that "unless a criminal defendant can show bad faith on the part
 of the police, failure to preserve potentially useful evidence does not
 constitute a denial of due process of law."  Id. at 58.  Defendant argues
 that the State failed to follow its own procedures for storage of evidence
 and thereby acted in bad faith in losing the hyoid bone.  Though Youngblood
 did not define "bad faith," it is commonly understood to connote that an
 action was "improperly motivated."  State v. Zaccaro, 154 Vt. 83, 92, 574 A.2d 1256, 1262 (1990).  On the basis of the record, we cannot agree that
 defendant has met his burden of proving that the State's failure to
 preserve the hyoid bone was in bad faith.
      Disposition of defendant's federal constitutional claim does not
 necessarily resolve defendant's state constitutional claim.  See State v.
 Badger, 141 Vt. 430, 449, 450 A.2d 336, 347 (1982) (noting that we have at
 times accorded criminal defendants more rights under Vermont Constitution
 than federal Constitution affords).  Chapter I, Article 10 of the Vermont
 Constitution guarantees a criminal defendant the right "to call for evidence

 

 in his favor."  Defendant argues that this provision requires that the
 charges be dismissed or the evidence suppressed.  He initially raised this
 state constitutional issue on the eve of trial.  The trial court rejected
 his motion because it was not adequately briefed.  In the interests of
 judicial economy, we will reach the issue.
      Prior to Youngblood, this Court decided State v. Bailey, 144 Vt. 86,
 92, 475 A.2d 1045, 1049 (1984), a case in which we interpreted federal due
 process requirements in instances when the prosecution loses evidence.  In
 Bailey, we held that if a defendant shows a reasonable possibility that the
 lost evidence would be exculpatory, id. at 94, 475 A.2d  at 1050, then the
 proper sanctions depend "upon 'a pragmatic balancing' of three factors: (1)
 the degree of negligence or bad faith on the part of the government; (2) the
 importance of the evidence lost; and (3) other evidence of guilt adduced at
 trial."  Id. at 95, 475 A.2d  at 1050.  Factors two and three of the test are
 both methods to determine the prejudice caused by lost evidence in the
 context of the entire record.
      After the Youngblood decision, we ruled in State v. Seifert, 151 Vt.
 66, 70, 557 A.2d 494, 497 (1989), that Youngblood is the controlling
 federal standard.  We believe, however, that Youngblood is both too broad
 and too narrow.  It is too broad because it would require the imposition of
 sanctions even though a defendant has demonstrated no prejudice from the
 lost evidence.  It is too narrow because it limits due process violations
 to only those cases in which a defendant can demonstrate bad faith, even
 though the negligent loss of evidence may critically prejudice a defendant.
 Because the Bailey test balances the culpability of the government's actions

 

 and the prejudice to a defendant, we adopt it as the state constitutional
 standard.
      Defendant argues that State v. Goshea, 137 Vt. 69, 398 A.2d 289 (1979),
 also controls the Article 10 question.  In that case, the prosecutor was
 informed that the alleged victim of a homicide was seen alive, but the
 prosecutor failed to disclose this to the defense.  We found that the
 failure to disclose the exculpatory evidence violated Article 10.  Id. at
 76-77, 398 A.2d  at 294.  Goshea is inapposite, however, because the evidence
 in that case was not disclosed, whereas in this case the evidence was lost.
 When the prosecution fails to disclose exculpatory information, the error
 can be cured by ordering a new trial.  See, e.g., id.  When evidence is
 lost, however, the cure may require suppression of testimony based on the
 lost evidence, or even dismissal of the charges.  Moreover, in lost-evidence
 cases, the lost evidence may be potentially exculpatory only because it has
 not yet been tested or examined.  Youngblood, 488 U.S.  at 57-58.  In short,
 Goshea does not control the standard here.
      Applying the Bailey standard, we cannot say that the loss of the tarp
 or hyoid bone deprived defendant of his constitutional right to call for
 evidence in his favor.  In regard to the tarp, the first factor, the
 culpability of the State, is inconclusive.  Defendant does not argue that
 the State's apparent destruction of most of the tarp was done in bad faith.
 The State speculates on appeal that only a small portion of the tarp was
 saved because it had a strong unpleasant odor.  Regardless, defendant has
 not shown unfair prejudice.  The tarp was important to the State's case in
 that it helped identify defendant as the victim's killer.  Defendant's son,
 Bud, testified that on the morning of November 4, 1976, defendant hurriedly

 

 loaded a black rubberized tarp, like the one in which the victim's body was
 found wrapped, into his truck.  Bud testified that this tarp was splattered
 with red paint, but the square of tarp preserved by the State neither
 confirmed nor disproved Bud's description.  Defendant argues that if the
 entire tarp had been saved, it would have allowed him to impeach Bud's
 testimony.  Despite the absence of the entire tarp, however, defendant
 successfully impeached Bud's testimony on this point.  On cross-examination,
 Bud admitted that the tarp his father loaded into his truck was folded up
 and he could not "see whether it was covered with red paint," and then
 admitted that he had misspoken when he had described the tarp.  In addition,
 other evidence served to identify defendant as the victim's killer.  That
 evidence, coupled with defendant's successful impeachment of Bud's
 testimony, outweigh possible negligence by the State.
      In regard to the hyoid bone, the State concedes that it does not know
 what happened to the bone once it was placed in storage.  Although the trial
 court found that the bone was inadvertently disposed of by the medical
 examiner's office, defendant has not proven the State acted in bad faith.
 On the other hand, the bone was important to the State's prosecution.  The
 medical examiner testified that the hyoid bone was fractured and that, based
 on this fracture, it was his conclusion that the victim died as a result of
 manual strangulation.  Defendant argues that if the bone had been available,
 he could have had it examined by an expert who might have testified that the
 condition of the fractured bone was not consistent with manual strangula-
 tion.  Again, through effective cross-examination, defendant was able to put
 this theory before the jury.  The medical examiner conceded that due to the
 condition of the body, he could not rule out the possibility that the victim

 

 may have died from another cause.  Defendant also elicited the medical
 examiner's admission that fracture of the hyoid bone is not fatal and that
 the fracture could have occurred anywhere between zero and ten days before
 the victim died.  Finally, as we have already noted, there was other
 evidence at trial from which the jury could have adduced defendant's guilt,
 including self-incriminating statements defendant made to others over the
 years.  After weighing the three Bailey factors, we conclude that the loss
 of the hyoid bone did not result in a denial of defendant's right to call
 for evidence in his favor.
                                     VI.
      Defendant also argues that he is entitled to judgment of acquittal
 because he was unfairly prejudiced and thereby denied due process of law by
 the nearly fourteen-year delay in the indictment.  Specifically, defendant
 asserts that the passage of time resulted in the unavailability of two
 witnesses -- his father and a school bus driver.  The State counters that
 the delay was not willful; rather, it was an investigatory delay caused by a
 lack of evidence.  Once defendant's son came forward with information
 regarding defendant's activities on the day of the victim's disappearance,
 the State promptly commenced prosecution.  Defendant does not contest the
 reason for the delay; he alleges only that he was prejudiced by it.
      The State of Vermont has no statute of limitations for the prosecution
 of murder.  13 V.S.A. { 4501(a).  The statute of limitations, however, is
 not the sole measure of whether a prosecution is timely.  See United States
 v. Marion, 404 U.S. 307, 325-26 (1971).  A defendant may successfully avoid
 prosecution if the preindictment delay violated defendant's due process
 rights.  United States v. Lovasco, 431 U.S. 783, 789-90 (1977).  Prosecution

 

 will be barred where the delay "violates those 'fundamental conceptions of
 justice which lie at the base of our civil and political institutions,'
 Mooney v. Holohan, 294 U.S. 103, 112 (1935), and which define 'the
 community's sense of fair play and decency,' Rochin v. California, [342 U.S. 165,] 173 [(1952)]."  Id. at 790.  In making this inquiry, courts should
 consider the reasons for the delay and the actual prejudice to the
 defendant.  Id.
      Defendant claims he was prejudiced by his inability to have his father
 testify in person in support of his alibi.  Defendant's claim is without
 merit.  The father's inquest testimony was admitted at trial on the ground
 that it, in defense counsel's words, "specifically relate[d] to the
 whereabouts of Wayne Delisle."  Moreover, while defendant asserts that his
 father's inquest testimony was not sufficient, and was not developed for the
 purpose of giving defendant an alibi, he fails to explain how it might have
 been different had his father been alive to testify in person.  To prove
 actual prejudice from a time delay during which a witness has died,
 defendant must demonstrate the exculpatory value of the lost testimony.
 United States v. Doerr, 886 F.2d 944, 964 (7th Cir. 1989).  Defendant has
 failed to do this.
      Defendant also claims that he was prejudiced by his inability to
 develop the testimony of his son's school bus driver, who was deceased at
 the time of trial.  Defendant speculates that the driver's testimony could
 have rebutted his son's testimony about the events of the morning of
 November 4, 1976.  Because defendant's argument is based on speculation as
 to the content of the driver's testimony, he has not met his burden.  See
 id.

 

      Defendant has failed to show any actual prejudice attributable to the
 passage of time.  Moreover, the cause of the delay was a lack of evidence
 sufficient to bring on earlier prosecution.  "[T]o prosecute a defendant
 following investigative delay does not deprive him of due process, even if
 his defense might have been somewhat prejudiced by the lapse of time."
 Lovasco, 431 U.S.  at 796.
      Reversed and remanded.


                                    FOR THE COURT:



                                    _____________________________
                                    Associate 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. 92-039


 State of Vermont                             Supreme Court

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

 Wayne E. Delisle                             March Term, 1993



 Michael J. Kupersmith, J.


 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

 Peter F. Langrock and Mitchell L. Pearl of Langrock Sperry & Wool,
   Middlebury, for defendant-appellant


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



      JOHNSON, J., concurring.      This appeal involves the intersection of 
 two statutory rights accorded to defendants in criminal cases:  the right  not
 to be prosecuted for a crime after the statute of limitations has run,  and, in
 a prosecution for murder, the right to have the jury instructed on  all
 lesser-included offenses.  I agree with the majority that defendant in  this
 case should not have had to choose between these two rights, but the  choice 
 the majority now puts to defendant is no better.  In the face of two  statutes
 that may be fully implemented without conflict, the majority has  created a
 collision, and resolved it with a flawed compromise that  ultimately negates 

 

 both rights and forces defendant to essentially the same  choice from which the
 majority purports to save him.  Therefore, although I  agree defendant's 
 conviction must be reversed, I do not join in part III of the Court's opinion. 
                                     I.
                                     A.
      It has long been the policy of this state that a defendant charged with  a
 homicide is entitled to a jury instruction on the lesser-included offense  of
 voluntary manslaughter.  State v. Meyer, 58 Vt. 457, 465, 3 A. 195, 200 (1886);
 Reporter's Notes, V.R.Cr.P. 31(c); see 13 V.S.A. { 2310.  At the same time, the
 Legislature has determined that prosecutions for voluntary  manslaughter are
 subject to a three-year statute of limitations.  13 V.S.A. { 4501(d).  In the
 present case, the prosecution for murder was undertaken several years after the
 statute of limitations had run on the lesser-included offense of voluntary
 manslaughter.  Both the trial court and the  majority have decided that, under
 the circumstances presented by this  prosecution, a choice between rights must
 be made.       
     The trial court concluded that defendant could have the lesser-included-
 offense instruction, but only if he waived the statute of  limitations on the
 lesser-included crime.  The majority overrules this choice in favor of allowing
 defendant to have the lesser-included-offense  instruction, but only if the
 trial court tells the jury that if they find  defendant guilty of the
 lesser-included offense, he will go free.  Otherwise, the majority reasons, the
 jury will be misled into thinking they  may convict on any of the crimes on
 which they are instructed and expect  defendant to be punished, when, in actual
 fact, a conviction on voluntary  manslaughter will result in an acquittal. 

 

      In my view, the majority's compromise vitiates both rights, and does so 
 in circumstances where no compromise is necessary.  The purpose of giving a 
 lesser-included-offense instruction is to give defendant the full benefit of 
 the reasonable doubt standard.  Beck v. Alabama, 447 U.S. 625, 634 (1980).  It
 is based on the concern that "[w]here one of the elements of the offense 
 charged remains in doubt, but the defendant is plainly guilty of some  offense,
 the jury is likely to resolve its doubts in favor of conviction."  Keeble v.
 United States, 412 U.S. 205, 212-13 (1973).  As the majority recognizes, giving
 the lesser-included-offense instruction ensures that the  jury will "avoid any
 incentive to convict the defendant of a greater offense  than the one
 committed."  This underlying purpose does not change when the  statute of
 limitations runs on one of the lesser-included offenses.  Thus,  if the court
 tells the jury it must consider the lesser-included offense, but a jury verdict
 of guilty of that offense will result in his acquittal,  the court has
 effectively eliminated the rationale for giving the  instruction in the first
 place.  It may even have invited a conviction on a greater offense than the one
 committed, exactly the opposite of the result intended by the instruction.  See
 State v. Short, 618 A.2d 316, 322 (N.J. 1993) (telling jury that defendant
 would go free if convicted of lesser- included offense of manslaughter all but
 invited jury to disregard  manslaughter instruction).  If defendant chooses not
 to run this risk, he is forced to forego his right to a lesser-included-offense
 instruction, and the  effect of the statute of limitations becomes moot. 
 Defendant then finds  himself in essentially the same position he was in
 originally. 
      To implement its scheme, however, the Court has to impliedly hold that
  defendant's right to the statute of limitations may be waived.  On the

 

 contrary, in Vermont, the statute of limitations is not simply an  affirmative
 defense that defendant may waive if he chooses.  Section 4503 of  Title 13
 V.S.A. provides that prosecutions for felonies and misdemeanors commenced after
 the statute of limitations has run "shall be void."  See In  re Mullestein, 148
 Vt. 170, 173-74, 531 A.2d 890, 892-93 (1987) (where  Legislature provides time
 limit for action and consequence for failure to  meet it, statutory language is
 mandatory).  As we held recently, "once the statute of limitations in effect at
 the time of the alleged offense runs out  . . . a criminal, by grace of the
 legislature, is granted a right to be free  of prosecution . . . ."  State v.
 Petrucelli, 156 Vt. 382, 384, 592 A.2d 365, 366 (1991). 
      Various policy considerations underlie a criminal statute of  limitations.
 It protects potential defendants from having to defend against  charges when
 the passage of time has obscured basic facts, it encourages law  enforcement
 officials to investigate possible wrongdoing promptly, and it  creates a fixed
 time period following the occurrence of the punishable act in which a person is
 exposed to criminal prosecution through the power of  the state.  State v.
 Burns, 151 Vt. 621, 623 n.3, 564 A.2d 593, 594 n.3  (1989).  But today's
 decision defeats all of these policies, for it provides  an avenue by which
 prosecutors may avoid the statute of limitations on all  lesser-included
 offenses when there is no time limitation, or a greater one, on prosecution for
 the greater offense.  See 13 V.S.A. { 4501 (setting forth  limitation periods
 for crimes). 
                                     B.
      Not only do policy considerations argue against the majority's  approach,
 the application of ordinary rules of statutory construction  likewise compel a
 different result.  It is readily apparent that the right  to a lesser-

 

 included-offense instruction and the right to assert the statute of limitations
 can be accommodated by a straightforward application of both statutes.  The 
 jury may be instructed as to all lesser-included offenses  within the charged
 offense, without mention of whether a lesser-included  offense is time-barred.
 If the jury finds defendant guilty of a time-barred  offense, the trial court
 must acquit, as the Legislature has decreed that no  punishment may be imposed
 for that offense. 
      There is no conflict in the express provisions of the statutes involved
 here such that the Court is obliged to harmonize their application in the
 circumstances of this case.  There is no language in the lesser-included
 offense-statute to suggest it should not be given if the offense is time-
 barred, and there is no language in the limitations statute that remotely
 suggests it does not operate when applied to a lesser-included offense.
 Unless and until the Legislature changes the operation of these statutes as
 applied to the circumstances now before the Court, we are bound to apply  them
 as written.  See State v. Wilcox, ___ Vt. ___, ___, 628 A.2d 924, 926  (1993)
 (where meaning of statute is plain on its face, statute must be  enforced
 according to its express terms).
                                     II.
      The majority's rationale for the creation of its special rule on time- 
 barred lesser-included offenses is based on the policy grounds set forth in the
 United States Supreme Court's decision in Spaziano v. Florida, 468 U.S. 447
 (1984).  The Court held, in factual circumstances similar to this case, that
 the due process clause does not require that a lesser-included-offense 
 instruction be given if the lesser-included crime is time-barred.  Id. at 455. 
 It reasoned that giving such an instruction distorts the fact-finding  process

 

 because the jury is "tricked into believing it has a choice of  crimes for 
 which to find defendant guilty, [when] in reality there is no choice."  Id. at
 456.  But see Short, 618 A.2d  at 323-24 (rejecting Spaziano  and holding that
 defendant is entitled to instruction on all lesser-included  offenses, even if
 time-barred, and without mention of consequences); State  v. Muentner, 406 N.W.2d 415, 421, 422-23 (Wis. 1987) (same). 
      Whether or not one agrees with the proposition that these rights are not
 constitutionally compelled, Spaziano is inapposite to this case because the
 right to an instruction on lesser-included offenses in Vermont derives from
 statute, rule, and common law, not the due process clause.  Moreover, essential
 to the Spaziano analysis is the assumption that the statute of limitations on
 crimes is waivable as a matter of state law, 486 U.S. at 454- 57, whereas in
 Vermont, such is not the case. 
      To the question of whether the straightforward implementation of Vermont
 law works a fraud upon the jury, the answer is clearly no, when reviewed in
 light of the historical role of the jury in Vermont.  We have long held that a
 criminal jury determines only guilt or innocence, a determination made
 independently of punishment concerns.  In State v. Lapan, 101 Vt. 124, 142, 141 A. 686, 695 (1928), we held that a trial court properly refused a jury's
 request to be informed of the penalty of the lesser-included offense of
 manslaughter. "Inasmuch as the court alone was to fix the penalty within the
 terms of the statute, the jury were correctly instructed that they had nothing
 to do with the penalty and that it should not enter into their consideration or
 discussion." Id. at 142-43, 141 A.  at 695 (citation omitted); see also State
 v. Smith, 136 Vt. 520, 526, 396 A.2d 126, 129 (1978) ("disposition after 
 verdict is for the court, and is not to be charged to the jury"); State v.

 

 Goyet, 120 Vt. 12, 52, 132 A.2d 623, 649 (1957) (punishment is not jury's
 consideration; jury should consider only facts in determining whether defendant
 committed first- or second-degree murder).(FN1) 
      Thus, the jury's sole function is to determine which crime, if any, was
 committed, a determination that must be based on an analysis of the elements of
 each crime and the evidence presented.  Whether or not the statute of
 limitations has run on one of the lesser-included offenses has no bearing on
 this question.  But if the jury is told that defendant will go unpunished if
 convicted of the lesser-included offense, the focus of the fact-finding process
 would probably shift from a consideration of which crime defendant may have
 committed to the crimes for which defendant may actually be punished.  Giving
 the jury information that is irrelevant to a determination of guilt or
 innocence, yet gives the jury the power to punish, distorts the factfinding
 process more than withholding information on the statute of limitations.  As 
 the New Jersey Supreme Court stated in Short: 
           The trial court's task is to let the jurors know what
           they need to know in order to make a fair decision on
           criminal liability in accordance with applicable law,
           not to give them whatever information they might want in
           order to assure the imposition of criminal punishment. .
           . .  [T]he successful completion of that task by a trial
           court constitutes neither "trickery" nor "deception" but
           a job well done.

 618 A.2d  at 324.

 

      The majority also reasons that withholding information on the statute of
 limitations implies a distrust of the jury's ability to follow instructions. 
 Our system of justice relies on the presumption that juries will follow
 instructions, but "we have recognized that in some circumstances 'the risk that
 the jury will not, or cannot, follow instructions is so great, and the
 consequences of failure so vital to the defendant, that the practical and human
 limitations of the jury system cannot be ignored.'" Simmons v. South Carolina, 
 62 U.S.L.W. 4509, 4514 (U.S. June 14, 1994) (plurality) (quoting Bruton v.
 United States, 391 U.S. 123, 135 (1968)). Thus, to ensure a fair trial, courts
 often keep relevant evidence and other information from juries.  See, e.g.,
 V.R.E. 403 (permitting trial court to exclude relevant evidence if prejudicial
 effect outweighs probative value); Herald Ass'n v. Ellison, 138 Vt. 529, 542-
 43, 419 A.2d 323, 331 (1980) (Hill, J., concurring and dissenting) (discussing
 protective measures available to trial judge to prevent undue influence on 
 jury, including sequestration). 
      I freely acknowledge that the jury would probably be displeased to learn
 that defendant, convicted of the time-barred offense of voluntary manslaughter,
 would go unpunished for the crime.  But I also suspect that the original jury
 that convicted defendant may not agree with this Court that defendant's
 conviction should be overturned on a point of law.  The rules governing 
 criminal trials are not designed to ensure the jury's happiness with its role
 in the judicial process.  Nor are juries convened to ensure that defendants 
 will be punished.  Rather, the rules are designed to determine what offense a
 defendant has committed, based on the evidence, by a "tribunal free of
 prejudice, passion, excitement, and tyrannical power." Chambers v. Florida, 309 U.S. 227, 237 (1940).  To be sure, a result that diminishes a jury's sense 

 

 of purpose is, all else being equal, an undesirable one.  But all else is not
 equal in this case. In the long run, we best ensure public confidence in the
 integrity of the judicial system by adhering to fair rules of procedure 
 applied even-handedly to all defendants. In this case, I believe that the
 scheme adopted by the majority departs from that course, and I therefore
 respectfully dissent from the Court's instruction on remand. 
      Justice Dooley joins in this concurrence.


                                         ________________________
                                         Associate Justice



--------------------------------------------------------------------------------
                                   Footnotes

FN1.    The majority does not expressly overrule these cases; it merely sweeps
 aside fifty years of precedent by stating that the rules set forth therein
 "would not apply in a situation where the jury was misled or the defendant
 prejudiced by remarks indicating what might happen to the defendant if it
 reached a particular verdict."  The majority cites State v. Percy, 146 Vt. 475,
 507 A.2d 955 (1986) for support.  The only proposition for which Percy stands
 is that a curative instruction must be given to the jury if an attorney
 affirmatively misinforms the jury as to disposition after sentence and the
 defendant is thereby prejudiced.  Id. at 479, 507 A.2d  at 957.