State v. Duford

STATE_V_DUFORD.94-083; 163 Vt 630; 660 A.2d 736

[Filed 30-Mar-1995]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 94-083

                             JANUARY TERM, 1995


State of Vermont                       }          APPEALED FROM:
                                       }
                                       }
     v.                                }          District Court of Vermont,
                                       }          Unit No. 3, Caledonia Circuit
                                       }
James A. Duford                        }          DOCKET NO. 205-3-93CaCr

                     In the above entitled cause the Clerk will enter:

     Defendant appeals from his conviction of burglary and petit larceny.  He
raises two claims:  (1) that the prosecutor's withdrawal of the plea
agreement at the status conference violated the Americans with Disabilities
Act of 1990 (ADA), 42 U.S.C.  12132; and (2) that the trial court erred by
refusing to give a jury instruction on diminished capacity.  We affirm. 

     First, defendant argues that during the plea colloquy the trial court,
as a matter of its supervisory authority, should have instituted a reasonable
accommodation to defendant's mental incapacity in accordance with the ADA. 
Though the court had determined defendant to be competent to stand trial, the
doctor's evaluation stated that his ability to understand the plea bargaining
process was rudimentary and should be conducted through concrete examples.
Defendant claims that the trial court ran afoul of this advice during the
status conference, thus violating the ADA by failing to make a reasonable
accommodation to defendant's mental disability. 

     On the morning of the status conference, there was a plea offer pending
from the State. Defense counsel brought to the court's attention defendant's
difficulties in understanding plea negotiations, and requested more time for
defendant to reconsider the plea offer.  The court granted the request.  Once
a plea agreement was reached, the trial judge questioned defendant regarding
his understanding of the agreement.  At that point, defendant stated he did
not "understand none of this stuff.  It's something I never done."  The
prosecutor then indicated he wanted the matter set for trial.  The trial
judge inquired once more whether or not defendant had an agreement that day. 
When defendant answered, "[n]ot that I know of," the court scheduled a trial
and defense counsel did not object. 

     Where defendant does not preserve an issue for appeal, we will not
review it sua sponte short of plain error "so grave and serious as to strike
at the very heart of defendant's constitutional rights."  State v. Mecier,
145 Vt. 173, 178, 488 A.2d 737, 741 (1984).  Although defendant argues that
the issue was raised in effect at sentencing through an equal protection
claim, it was not raised prior to trial.  Even at the sentencing hearing, the
ADA was never 

 

mentioned.  Consequently, we hold the issue was not preserved. In light of
the fact the plea offer had been open for quite some time and because the
trial court gave defendant additional time to accept the offer on the day of
the status conference, we find no plain error. 

     Second, defendant claims the trial court erred in refusing to grant the
requested jury instruction on diminished capacity.  Where the evidence
supports it, the trial court should carefully review a request to charge the
jury on diminished capacity in relation to the state-of- mind element of the
crime.  State v. Smith, 136 Vt. 520, 528, 396 A.2d 126, 130 (1978).  The
defense submitted the proposed charge on the second day of trial, and the
State objected to the charge for lack of written notice on the claim of
diminished capacity.  The trial court indicated it would remain open to the
charge but had so far heard no evidence to support it.  At the charge
conference, defense counsel renewed the request for a diminished capacity
instruction and also requested more extensive instructions on the element of
intent in the respective offenses charged. The trial court amended its intent
charge but found the diminished capacity charge unmerited because defendant
had failed to give proper notice under V.R.Cr.P. 12.1 and because there was
insufficient evidence to warrant the charge. 

     We conclude that the trial court was correct in refusing to include the
diminished capacity charge because there was insufficient evidence to justify
it.  We have not held that expert testimony is necessary to show diminished
capacity.  The testimony of defendant's mother, however, was insufficient to
establish defendant's diminished capacity.  She testified that he had
life-long learning disabilities and that he was socially inept.  The thrust
of her testimony was that defendant was a vulnerable person susceptible to
manipulation; it did not establish defendant's incapacity to form the
requisite intent to commit the crimes charged.  No other testimony was
offered regarding defendant's mental capacities.  Since the evidence did not
fairly present diminished capacity, the trial court was not required to give
the requested jury instruction.  State v. Day, 149 Vt. 165, 167, 540 A.2d 1042, 1043 (1987) (trial court not required to charge matters not covered by
evidence). 

     Affirmed.

                                   BY THE COURT:
                                   ________________________________________
                                   Frederic W. Allen, Chief Justice

                                   ________________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   ________________________________________
                                   John A. Dooley, Associate Justice

                                   ________________________________________
                                   James L. Morse, Associate Justice

                                   ________________________________________
                                   Denise R. Johnson, Associate Justice
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