State v. Durenleau

STATE_V_DURENLEAU.93-168; 163 Vt 8; 652 A.2d 981

[Filed 30-Sep-1994]

[Motion for Reargument Denied 2-Nov-1994]

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. 93-168


State of Vermont                        Supreme Court

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

Rebecca S. Durenleau                    May Term, 1994


Matthew I. Katz, J.

Scot L. Kline, Chittenden County State's Attorney, and Pamela
Hall Johnson and Rosemary
  Hull, Deputy State's Attorneys, Burlington, for plaintiff-
appellee

Peter F. Langrock and Beth Robinson of Langrock Sperry & Wool,
Middlebury, for defendant-
  appellant


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


     ALLEN, C.J.   Defendant Rebecca Durenleau appeals her conviction
following a jury trial for the first-degree murder of her husband, Michael
Durenleau.  Defendant contends that the State failed to present sufficient
evidence to establish her guilt beyond a reasonable doubt.  We agree and
reverse. 

     Defendant claims a number of errors on appeal, but in light of our
disposition of this case we consider only her claim regarding insufficiency of
the evidence.  At the close of the State's case and after trial, defendant
unsuccessfully moved for a judgment of acquittal pursuant to V.R.Cr.P 29,
which provides, in relevant part, that "[t]he court on motion of a defendant .
. . shall order the entry of judgment of acquittal . . . if the evidence is
insufficient to sustain a conviction."  In reviewing a denial of a Rule 29
motion, this Court must determine whether the evidence presented by the State,
taken in the light most favorable to the prosecution and 

 

excluding any modifying evidence, sufficiently and fairly supports a finding
of guilt beyond a reasonable doubt.  State v. Poirier, 142 Vt. 595, 599, 458 A.2d 1109, 1111 (1983); see also State v. Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378 (1991).  The evidence must be examined both for its quality and
strength; evidence "that gives `rise to mere suspicion of guilt, or [leaves]
guilt uncertain or dependent upon conjecture' is insufficient."  Robar, 157
Vt. at 391, 601 A.2d  at 1378 (alteration in original) (quoting State v.
Partlow, 143 Vt. 33, 37, 460 A.2d 454, 456 (1983)). 

     At trial, the State proceeded on the theory that defendant aided or
incited her lover, Harmon Olmstead.  To convict defendant, the prosecution had
to prove that Olmstead unlawfully killed Michael Durenleau, wilfully and
deliberately, with premeditation, and that defendant aided or incited him in
that killing.  See 13 V.S.A.  2301 (defining first-degree murder); id.  3
("A person who aids in the commission of a felony shall be punished as a
principal."); id.  4 ("A person who is accessory before the fact by
counseling, hiring or otherwise procuring an offense to be committed may be .
. . convicted . . . as if he were a principal offender"); see also State v.
Miller, 146 Vt. 164, 175, 502 A.2d 832, 839 (1985) (jury must conclude beyond
reasonable doubt that preconceived plan to murder existed in which defendant
participated).  For purposes of discussion, we assume that the State proved
beyond a reasonable doubt that Olmstead unlawfully killed Michael Durenleau
wilfully and deliberately, with premeditation.(FN1) We recount the facts
relevant to defendant's participation in the light most favorable to the
State, excluding modifying evidence.  Defendant carried on an adulterous
affair with Olmstead starting in mid-1984.  She had filed for divorce in
August 1984 to be free to marry Olmstead, but expressed concern to her mother
that she might lose the house and custody of the children in the process. 
Defendant dropped the suit, but she and her husband were separated during two 

 

periods before his death while the affair ensued.  At one point in late 1984,
defendant said to a friend that she wouldn't have so many problems if her
husband were dead.  Defendant also knew that her husband had a life insurance
policy naming her as beneficiary.  She claimed not to know that the death
benefit had been increased in the spring of 1985, but the insurance agent who
arranged the increase testified that defendant was aware of the policy's
status. 

     Around that same time, spring 1985, defendant told her mother she was
going through with the divorce to marry Olmstead. At some point before the
homicide, defendant told Olmstead that she would resume sexual relations with
her husband unless Olmstead "proved himself."  In June 1985, defendant claimed
to have ended the affair and to have reconciled with her husband, but she was
seen with Olmstead at a Fourth of July party approximately one week before the
killing.  Witnesses testified that in the year before the killing, Olmstead
and Michael Durenleau had exchanged threats and engaged in hostile physical
encounters.      

Three days before the murder, the Durenleaus planned a reconciliation
celebration at Veronica's Tavern in Essex, a place where defendant and
Olmstead had been seen together at some time in the past year. As arranged, on
the evening of July 12, 1985, defendant and her husband left their Swanton
home and headed for the tavern.  They arrived at approximately 9:30 p.m. and
defendant parked the car in an unlit area behind a building located to the
rear of the tavern.  The lot adjoined a grassy embankment topped by train
tracks and a lumberyard, and contained other parked automobiles and debris. 
The Durenleaus entered the bar together, found a table, and ordered a beer. 
After driving nearly thirty miles from Swanton to Essex, they stayed only
fifteen minutes and left without finishing the beer. Defendant and her husband
went back to the car; defendant went to the driver's side and her husband to
the passenger's side. 

     Without warning, Michael Durenleau was struck in the back of the head
with a blunt instrument and stabbed twice in the heart. Defendant later
recalled she heard her husband say, "I've had enough," just after the assault
started.  Defendant later reported her husband's attacker was approximately
five feet four inches tall and could have been male or female.  Another 

 

witness reported seeing a man of Olmstead's size, about six feet, and a truck
similar to Olmstead's in the vicinity of the back parking lot around the time
of the assault.  Defendant ran back into the bar and shouted that her husband
had been hit, but did not immediately say he was in the back parking lot. 
Some of the bar patrons exited the front door and went the short distance into
the street, apparently believing that the husband had been hit by a car. 
Defendant then came out of the bar and indicated that her husband was lying in
the back lot.  Defendant stood away from her husband as the bar patrons and a
rescue unit attempted to revive him. 

     Two days after the assault, defendant went to a friend's house,
uncharacteristically, without calling first.  The friend had just returned
from Ohio where she and her family intended to relocate, and defendant mused
that she and Olmstead should consider moving there as well because they would
not be able to live in Swanton.  A short time later that same day, Olmstead
called the friend's house, expecting to find defendant there. Defendant spoke
to him privately, but was overheard telling him that things would be all
right.  Over the next three weeks, defendant took ten to fifteen calls from
Olmstead at the friend's house. 

     Sometime after the killing, Olmstead told defendant that he had "proven
himself."  Defendant started referring to Olmstead by his attorney's name
"Dick Gadbois."  She used the money from her husband's life insurance to buy
land from Olmstead, where they erected a house and moved in together, sometime
in 1989 or 1990. Defendant, Olmstead and her children lived there until just
before trial. 

     The State acknowledges that the evidence against defendant was entirely
circumstantial, but contends the prosecution proved beyond a reasonable doubt
that defendant procured, incited, or participated in her husband's murder. 
Despite its circumstantial nature, such evidence may serve as proof of guilt
beyond a reasonable doubt, provided the evidence is "proper and sufficient in
itself."  State v. Warner, 151 Vt. 469, 472, 560 A.2d 385, 387 (1989).  In
assessing circumstantial evidence, the fact-finder may draw rational
inferences to determine whether disputed ultimate facts occurred.  Id. at
472-73, 560 A.2d  at 387-88.  "In addition, the 

 

State is not required to exclude every reasonable hypothesis of innocence in
proving a case with circumstantial evidence." Id. at 472, 560 A.2d  at 387. 
The evidence and inferences, however, must add up to more than mere suspicion;
the jury cannot bridge evidentiary gaps with speculation.  See Robar, 157 Vt.
at 391, 601 A.2d  at 1378 (evidence must support more than mere suspicion or
conjecture). 

     After careful review of the record in the light most favorable to the
State, we conclude that a jury could not properly find defendant guilty beyond
a reasonable doubt.  The evidence established that defendant carried on an
adulterous affair, wanted to leave her husband for Olmstead but was concerned
about losing her house and children, lied when she denied knowing about an
increase in her husband's life insurance, and said she would be better off if
her husband were dead. Knowing of the mutual hostility between Olmstead and
her husband, she threatened to start sleeping with her husband again unless
Olmstead "proved himself."  The fatal trip to Veronica's was planned in
advance, and defendant drove to the tavern and parked in the back.  After a
fairly long drive to the tavern, defendant and her husband stayed only
briefly.  An individual fitting Olmstead's general description and a truck
similar to his were seen in the area around the time of the assault. 
Defendant failed to direct the bar patrons to the murder scene immediately.
Shortly after the killing, defendant and Olmstead were in regular contact, and
Olmstead told defendant that he had "proven himself." 

     The prosecution asked the jury to infer from this evidence that defendant
and Olmstead planned Michael Durenleau's death, or that defendant incited
Olmstead to kill Durenleau.  The State's evidence that she feared that a
divorce would deprive her of her house and children, that she lied about
knowing of her husband's insurance, and that she would have been better off if
her husband were dead may have fairly established a motive, but no more.  The
only evidence that defendant incited Olmstead or procured his actions was the
ambiguous statement that he had to "prove himself."  The State presented no
other evidence to warrant an inference that defendant intended that Olmstead
prove himself through killing her husband.  Cf. State v. Ryan, 




135 Vt. 491, 493, 380 A.2d 525, 526-27 (1977) (defendant was guilty of
counselling or otherwise procuring murder when he told co- defendant that she
"had to kill" victim to prove her love). Olmstead told defendant after the
killing that he had "proven himself," but even assuming this was a confession,
without further evidence, the jury could only speculate that he had proven
himself through means dictated by defendant. 

     If Olmstead had lain in wait and ambushed Durenleau, the only evidence of
defendant's participation was the fact that the reconciliation celebration had
been planned in advance, that defendant drove and parked behind the bar, that
they stayed only briefly, and that she did not immediately direct people to
the rear of the building.  Without additional evidence, the jury was left to
speculate that defendant and Olmstead had orchestrated the attack.  The thin
evidentiary record raises considerable doubt that defendant assisted in her
husband's murder. 

     In cases in which this Court has upheld convictions based solely on
circumstantial evidence, the prosecution had erected a tighter evidentiary
framework.  See State v. Warner, 151 Vt. at 470-72, 560 A.2d  at 386-87
(sufficient circumstantial evidence to support conviction for driving under
the influence where defendant was clearly intoxicated at police station,
refused ride from police, made no phone calls before leaving police
headquarters, had last been seen headed for his vehicle, was found ten minutes
later with his vehicle parked outside his home, and no other vehicles had
driven into police lot during relevant time period); State v. Derouchie, 140
Vt. 437, 440-42, 440 A.2d 146, 147-48 (1981) (adequate circumstantial evidence
that defendant guilty of operating motor vehicle without owner's consent where
defendant seen walking slowly near van with keys left inside, man fitting
general description of defendant seen driving van after it was reported
missing, van found with all but ignition key inside, defendant subsequently
found inside van attempting to start it, and ignition key found on floor after
his apprehension by police); State v. Bourassa, 137 Vt. 62, 64-65, 68-69, 399 A.2d 507, 509-12 (1979) (sufficient circumstantial evidence where witness saw
man fitting defendant's description break into pharmacy late at night, police
saw man of same description run into woods, 

 
 
bloodhound led police to spot where defendant had hidden himself, defendant
admitted being with co- defendant earlier in the night, and defendant's alibi
proved unfounded). 

     The jury may employ rational inferences to bridge factual gaps left by
circumstantial evidence, but at some point rational inference leaves off and
speculation begins.  In this case, a guilty verdict resulted from jury
conjecture and speculation supplementing a meager evidentiary record of
defendant's involvement in her husband's death.  Defendant may have been
happier without her spouse, and may have unwisely continued to associate with
Olmstead, a suspected murderer, but the evidence does not permit rational
inferences sufficient to establish guilt beyond a reasonable doubt. 
Therefore, we reverse the conviction and direct entry of a judgment of
acquittal.  We do not readily overturn a jury's determination, but this Court
cannot shrink from its duty to protect an individual's due process right to
conviction only by evidence of guilt beyond a reasonable doubt. 

     Since double jeopardy bars her retrial, Robar, 157 Vt. at 396, 601 A.2d 
at 1301, we do not reach defendant's other claimed errors. 

     The judgment of conviction is reversed, and a judgment of acquittal is
entered. 

                                   FOR THE COURT:



                                   _____________________________
                                   Chief Justice


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


FN1.    At the time of argument, Olmstead had not been charged
 with any crime in connection with the killing.