State v. McGee

STATE_V_MCGEE.92-364; 163 Vt 162; 655 A.2d 729

[Filed 13-Jan-1995]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
wellasformalrevision 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. 92-364


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                       District Court of Vermont,
                                             Unit 2, Chittenden Circuit


Ronald McGee                                 October Term, 1994



Matthew I. Katz, J.

Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
 General,   Montpelier, for plaintiff-appellee 

Charles Martin of Martin & Paolini, Barre, for defendant-appellant



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



     GIBSON, J.     Defendant Ronald McGee appeals his first-degree murder
conviction for killing William Bessette while perpetrating an attempted
robbery, 13 V.S.A.  2301.(FN1)  He argues for reversal based on several
asserted errors in the trial court's instructions to the jury and the court's
denial of his motion for judgment of acquittal.  We affirm. 

     In the early morning hours of June 4, 1991, William Bessette was shot
and killed outside the home of Ann Barbour in Essex Junction, Vermont. 
Barbour operated a "crack house," which defendant and his brother, Leroy,
visited on occasion.  Barbour had informed defendant 

 

that she believed Leroy had stolen some of her cocaine, and that she had
hired Bessette to retaliate by harming Leroy.  Concerned for Leroy's safety,
defendant, accompanied by his brother-in-law Samuel Hudson, and two friends,
David Shelby and Timothy Roarda, visited Leroy late in the evening on June 3
to warn him of Bessette's impending visit.  After speaking with Leroy,
defendant and his companions drove to Barbour's home, and en route, devised a
plan to steal Barbour's cocaine. 

     According to the plan, defendant would enter Barbour's home, converse
with the others, and determine where Barbour kept her cocaine cache.  Hudson
and Shelby would stay outside the house, while Roarda remained by the car to
keep lookout and serve as the getaway driver. When defendant believed the
time was right, he would signal Hudson and Shelby to enter the home. 
Defendant and Hudson would hold the occupants at gunpoint while Shelby would
take the drugs, whereupon the three would escape to the car and drive off
with Roarda. 

     As often happens in these situations, the scheme went awry.  Defendant
and his cohorts arrived at Barbour's home as planned to steal the cocaine. 
Defendant, armed with a concealed handgun, knocked and entered the residence.
 Hudson, who was carrying a rifle, remained outside the house with Shelby,
and Roarda waited by the car.  Once inside the home, defendant encountered
Barbour and Bessette, as well as Daniel Langevin, and two others.  Barbour
offered defendant some cocaine, which defendant accepted.  Defendant spoke
with Barbour about Leroy's situation, attempting to convince her not to send
Bessette after Leroy.  Barbour refused to call off Bessette, but agreed that
defendant could accompany Bessette to visit Leroy. Defendant remained inside
the home for some forty-five minutes while his accomplices remained outside
awaiting defendant's signal. 

     Shelby grew impatient with the apparent delay and decided to
investigate.  He entered Barbour's home under an assumed name, used cocaine
with the other occupants, and took defendant aside, suggesting to him that
they forget about robbing Barbour.  Defendant replied, "No."  Shortly
thereafter, defendant, Shelby, Bessette and Langevin left Barbour's house. 
When 

 

they stepped outside, they encountered Hudson with his rifle in hand. 
At this point, defendant told Hudson, "Come on, let's go." 

     Accounts of what happened next differed at trial.  Langevin and Shelby
testified that Hudson put his rifle against Bessette's back as Bessette
walked by him, which ultimately caused Bessette to draw his gun and aim it at
Hudson.  According to these witnesses, defendant then shot Bessette. 
Defendant and Hudson, however, testified that Bessette, upon seeing Hudson,
immediately pulled his gun and yelled, "Nigger you're dead!" whereupon
defendant drew his gun and shot Bessette. 

     After the shooting, defendant returned to Barbour's home.  He told
Barbour that Bessette had become excited and that he was concerned about
Bessette's behavior.  Defendant did not tell her about the shooting.  He
subsequently left the home and went to the car to meet Hudson, Shelby and
Roarda.  On the way out, defendant encountered Langevin standing next to
Bessette's body.  Defendant grabbed Langevin and told him not to tell anyone
what had happened. 

     Defendant then joined his three accomplices in the car.  Shelby asked
defendant if he had gotten the cocaine, and he responded that he had returned
to the house to try to do so, but had not succeeded.  The four circled the
block once and drove off.  Roarda testified that he drove around the block
before leaving because defendant and Shelby had urged him to return to
Barbour's home for the cocaine.  Roarda stated that after circling the block
he decided against stopping and chose to drive on. 

                                  I.

     Defendant argues that the court erred in denying his motion for judgment
of acquittal because the State failed to establish that he killed Bessette
while perpetrating an attempted robbery.  He claims that the attempted
robbery had ended by the time he left the house and that the felony-murder
charge should therefore have been dismissed.  In reviewing the court's denial
of defendant's motion, we consider "whether the evidence presented by the
State, taken in the light most favorable to the prosecution, and excluding
modifying evidence, sufficiently and fairly 

 

supports a finding of guilt beyond a reasonable doubt."  State v. Duranleau,
No. 93-168, slip op. at 1-2 (Vt. Sept. 30, 1994). 

     At trial, the State had to establish that Bessette was shot during an
attempted robbery. An attempt requires intent to commit a particular crime
and an overt act designed to carry out that intent.  State v. Curtis, 157 Vt.
629, 631, 603 A.2d 356, 357 (1991).  The act must advance the actor's conduct
beyond mere intent, and reach far enough toward accomplishing "the desired
result to amount to the commencement of the consummation."  State v. Boutin,
133 Vt. 531, 533, 346 A.2d 531, 532 (1975). 

     Viewing the facts in the light most favorable to the State, the
prosecution provided the jury with ample evidence from which it could
reasonably conclude that defendant was engaged in attempted robbery when he
shot Bessette, and that Bessette's death was a consequence of that attempt. 
Defendant crossed the line from merely preparing to rob Barbour, to engaging
in the felony of attempted robbery when, intent on stealing Barbour's
cocaine, he took the overt step of entering Barbour's home armed with a
concealed weapon.  He expressly rejected his accomplice's suggestion that he
forget about stealing the cocaine, and after shooting Bessette, he returned
to the home, the target of the robbery scheme, in a further effort to secure
the cocaine.  Regardless of whatever temporal gap defendant claims separated
his attempted robbery from Bessette's killing, the State offered evidence
that sufficiently and fairly supports a finding of guilt beyond a reasonable
doubt.  The court properly denied defendant's motion for a judgment of
acquittal. 

                                  II.

     Defendant claims that the court's instructions to the jury were
erroneous in several respects, but did not object to the instructions at
trial.  Therefore, we review the court's instructions only for plain error. 
State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993). Reversal is
required "`only in exceptional circumstances where a failure to recognize
error would result in a miscarriage of justice, or where there is glaring
error so grave and serious that it 

 

strikes at the very heart of defendant's constitutional rights.'"  Id. at
538, 632 A.2d  at 26 (quoting State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879,
881 (1986)). 

                                  A.

     Defendant first takes issue with the court's omission of an element of
attempted robbery, the felony underlying the first-degree murder charge. 
Defendant claims the jury should have been instructed to find beyond a
reasonable doubt that defendant had the specific intent to permanently
deprive Barbour of her personal property, and that without that instruction,
the jury convicted him without first finding the requisite mens rea for
felony murder.  The court did not instruct the jury on the specific intent
element necessary for a robbery.  See State v. Francis, 151 Vt. 296, 307, 561 A.2d 392, 398-99 (1989) (setting forth elements of robbery).   Although this
was error, it does not rise to the level of plain error. 

     Defendant conceded that he and his cohorts had planned to commit a
robbery at the Barbour residence.  Because defendant's intent to rob Barbour
was never a contested issue and presented neither a close nor difficult
question for the jury, the omission was not plain error. See id. at 308, 561 A.2d  at 399 (failure to instruct jury on issue that was neither close nor
difficult did not rise to level of plain error); see also State v. Giroux,
151 Vt. 361, 365, 561 A.2d 403, 406 (1989) (no plain error where jury not
instructed on wrongful intent where intent not an issue at trial).  Moreover,
the court instructed the jury that it had to find that defendant acted with
malice when he shot Bessette to convict defendant of felony-murder. See State
v. Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983).  The court's
instructions, taken as a whole, did not permit defendant's conviction in the
absence of the requisite mens rea for felony murder. 

                                  B.

     Defendant also challenges the jury instructions on the issue of
self-defense.   The court set forth the requirements for establishing the
defense as follows: 

 

         If a person kills in self-defense or in the defense of others from
         a violent crime he may not be convicted of any offense.  However,
         in order to claim this defense a person must be free from fault in
         bringing on the difficulty with his adversary.  [The person must
         r]easonably believe both that his adversary will if not prevented
         immediately inflict a fatal or serious bodily injury and reasonably
         believe that he must use deadly force upon the adversary to
         prevent him from inflicting such an injury.

The court instructed the jury that if it found that the State had proved
beyond a reasonable doubt that the killing occurred during an attempted
robbery, then they could not consider the defense of self-defense.  Defendant
claims the instructions constitute plain error because they (1) impermissibly
shifted the burden of proof of the defense onto defendant, and (2) included a
freedom-from-fault element that is not required under Vermont law. 

     Although the instructions did not clearly state that the prosecution
bore the burden of disproving self-defense, see State v. Baker, 154 Vt. 411,
416, 579 A.2d 479, 481 (1990), any error was harmless.  The instructions
correctly laid out the elements of self-defense, including that defendant
must be faultless in bringing on the difficulty with his adversary.  See
State v. Rounds, 104 Vt. 442, 451, 160 A. 249, 251 (1932).  The jury would
not reach the issue of self- defense if it first found that the State had
proved beyond a reasonable doubt that Bessette was killed during the robbery
attempt.  If defendant was acting while in the course of an attempted felony,
he was not entitled to the benefit of self-defense because his own conduct
brought about the difficulty with Bessette.  Cf. United States v. Peterson,
483 F.2d 1222, 1231 (D.C. Cir. 1973) ("It has long been accepted that one
cannot support a claim of self-defense by a self- generated necessity to
kill.  The right of homicidal self-defense is granted only to those free from
fault in the difficulty.").  Here, the jury found that defendant was guilty
of felony murder because Bessette was killed during an attempted robbery. 
Any error in the court's instructions was harmless. 

 

                                  C.

     Finally, defendant claims error in the court's instructions on whether
the killing occurred during the course of the attempted robbery.  He contends
that the instructions were confusing, improperly shifted the burden of
proving abandonment to the defense, and omitted the defense's theory that the
killing occurred after the attempt had ended.  Upon review of the
instructions we find defendant's arguments are meritless.  The trial court
clearly instructed the jury that to find defendant guilty of felony murder,
it must find that the "killing was done in the perpetration or attempted
perpetration of robbery."  It instructed the jury on the elements of attempt
and on the requirements for abandonment, and reiterated that the State had
the burden of proof. 

     The court's instructions, taken as a whole, were proper.  Defendant
fails to show the existence of error that has resulted in a miscarriage of
justice. 

     Affirmed.

                                   FOR THE COURT:


                                   _____________________________________
                                   Associate Justice



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                           Footnotes


FN1.  13 V.S.A.  2301 provides in part:  "Murder committed in per-
 petrating . . . robbery [i.e. felony murder] shall be murder in the first 
 degree."