State v. Hudson

STATE_V_HUDSON.92-628; 163 Vt 316; 658 A.2d 531

[Filed 17-Feb-1995]

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. 92-628


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 2, Chittenden Circuit
Samuel L. Hudson
                                                   May Term, 1994


Matthew I. Katz, J.

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

David H. Casier, Burlington, for defendant-appellant


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


     JOHNSON, J.   Defendant was convicted by jury of first-degree murder
based on the shooting death of a man during an attempted robbery in which
defendant participated.  On appeal, he argues that several of the court's
instructions to the jury were erroneous, and that the court should have
granted his motion for a new trial based upon jury misconduct.  He also
argues that the evidence was insufficient to support his conviction.  We
affirm. 

                                I.

     The following are the facts, viewed most favorably to the State and
excluding modifying evidence.  See State v. Elkins, 155 Vt. 9, 17, 580 A.2d 1200, 1204 (1990) (citing standard for reviewing denial of motion for
judgment of acquittal).  Early on the morning of June 4, 1991, William
Bessette was shot and killed outside the home of Ann Barbour in Essex
Junction, Vermont.  The previous afternoon, defendant, David Shelby, Timothy
Roarda, and Ronald McGee, who is defendant's brother-in-law, gathered at
defendant's home.  McGee felt that William Bessette, Ann Barbour's
"enforcer," posed a threat to McGee's brother, Leroy, because 

 

of a disagreement between Ann and Leroy over a drug debt.  Defendant armed
himself with a rifle, and the four men drove first to Leroy's place of work
to talk to him, and then to Barbour's house. 

     At some point during the drive, the group devised a plan to steal
cocaine from Barbour's house.  According to the plan, McGee would enter
Barbour's home while Shelby and defendant waited outside.  When McGee gave
the signal, Shelby and defendant would enter the house. Defendant and McGee
would hold the occupants of the home at gunpoint, while Shelby retrieved the
drugs.  Roarda would serve as lookout and driver of the getaway car. 

     The group arrived at Barbour's house as planned to steal the cocaine. 
McGee, armed with a concealed handgun, knocked at the door and entered the
residence.  Defendant, who was carrying his rifle, waited by the side of the
house, while Roarda remained near the car.  Inside the home, McGee
encountered Barbour, Bessette, and three other men.  Eventually, he went down
to the basement, where he used cocaine.  Shelby grew impatient with the delay
and knocked at the door.  After being scrutinized by the occupants of the
house, Shelby went downstairs and used cocaine.  At one point, McGee rejected
Shelby's suggestion that they abandon the robbery. 

     Shortly thereafter, McGee, Shelby, Bessette and another person left
Barbour's house and were met by defendant, who pointed his rifle at Bessette.
 Bessette grabbed the barrel of the gun and struggled with defendant.  McGee
then shot Bessette in the back of the head, killing him. While the others ran
off, McGee reentered the house and tried to get the two men remaining there
to go outside.  Apparently unaware that Bessette had been shot, they
declined.  A few minutes later, when defendant, Shelby, and Roarda picked
McGee up, McGee told them that he had returned to the house in an
unsuccessful attempt to get the cocaine.  McGee wanted to go back again but
Roarda refused to stop the car. 

                                II.

     Defendant challenges several of the court's jury instructions.  The
State argues that the 

 

defendant failed to preserve any of the claimed shortcomings in the
instructions because he did not make a succinct recitation of the specific
itemized objections following the instruction, as required by V.R.Cr.P. 30;
State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 25-26 (1993).  We need not
address this issue because we find no error in any of the court's
instructions that differed from those requested by defendant. 

                               A.

     Defendant objects to the court's instruction on accomplice liability,
but fails to indicate what language in the instruction is objectionable. 
Rather, he contends that the instruction (1) allowed the jury to convict him
as an accomplice based on his mere presence at the scene of the crime, and
(2) relieved the State of its burden to prove that he intended to commit the
underlying crime.  The court gave the following instructions related to
accomplice liability: 

        A Defendant is liable for the acts of his accomplice when several
        persons combine under a common understanding, and with a
        common purpose, to do an illegal act.  Each of these persons is
        criminally responsible for the acts of the others, and all who
        participate in the execution of the unlawful design.  The
        Prosecution must only prove that one of the participants in the
        illegal project committed the homicide during the attempt to carry
        out that project.  And remember, the project that is alleged is
        robbery or attempted robbery.  The Defendant is liable for the acts
        of an accomplice, even if the accomplice somewhat departs from
        the plans which they had previously made, so long as the
        accomplice's act was incidental to execution and a natural and
        foreseeable consequence of the original plan and in furtherance of
        the plan's goal.

        . . . .
        
        In considering whether the critical acts were committed during
        the perpetration or attempted perpetration of a robbery, keep
        several things in mind.  First, was there a plan to rob?  Second,
        did the participants, and specifically this Defendant, go beyond
        mere planning and commence an attempt to rob?  Third, did this
        Defendant effectively withdraw from such an attempt?  Of course,
        each of these questions must be answered positively before you
        proceed to the next.

(Emphasis added.)

     The instruction plainly required more than defendant's mere presence at
the scene of the 

 

crime to find him liable as an accomplice.  Further, the court's use of the
terms "common understanding" and "common purpose" precluded the jury from
finding defendant liable as an accomplice without determining that he
intended to commit the underlying crime.  See State v. Bushey, 137 Vt. 155,
159, 400 A.2d 993, 996 (1979) (expressions "common understanding" and "common
purpose" sufficiently indicate necessary concurrence of intent, purpose and
object of activity to inform jury that element of intent must be common to
all accomplices). 

                                B.

     Defendant also argues that (1) the court's instruction on malice allowed
the jury to convict him based solely on his intent to commit the underlying
robbery, and (2) the court should have instructed the jury that the State
must prove defendant intended to kill Bessette.  The court gave the following
instruction regarding malice. 

           The accusation in this case is first degree murder.  In order to
           prove that charge, the State must satisfy you beyond a reasonable
           doubt of four things: . . . three, the killing was the product of
           malice and Mr. Hudson had malice.

           . . . .

           Again, an accusation of murder must be accompanied by proof
           beyond a reasonable doubt of malice.  Malice is an intention to
           kill, an intention to do great bodily harm, or a wanton disregard
           of the likelihood that one's behavior may naturally cause death or
           cause great bodily harm.  To find malice, a jury may take into
           consideration the nature of the illegal activity and the facts and
           circumstances surrounding the killing and the commission of those
           illegal acts.

           Malice may be indicated from evidence presented that the
           Defendant intentionally set in motion a chain of events likely to
           cause death or great bodily injury, or that Defendant acted with
           extreme indifference to the value of human life.  However, a jury
           may not find malice merely from an intent to commit the
           underlying felony.

(Emphasis added.)

     Regarding defendant's first argument, the court explicitly informed the
jury that it could not conclude that defendant harbored the requisite intent
for murder based merely on its 

 

conclusion that defendant intended to commit the underlying felony. 

     As for defendant's second argument, we note that, in its
accomplice-liability instruction, the court roughly paraphrased language set
forth in State v. Orlandi, 106 Vt. 165, 171-72, 170 A. 908, 910-11 (1934)
that we disavowed in another case issued today.  See State v. Bacon,
No.92-534, slip op. at 9-10 (Feb. 17, 1995) (overruling dicta in Orlandi
stating that accomplices are criminally liable "for everything done by any
one of them which follows incidentally in the execution of the design as one
of its natural consequences").  Unlike the trial court in Bacon, however, the
court in this case explicitly informed the jury that the State had to prove
that defendant himself, not just the triggerman, possessed the requisite
intent regarding the murder of Bessette -- at minimum, a wanton disregard for
the likelihood that his behavior would result in death or great bodily harm. 
This is a correct statement of the law regarding the intent that the State
was required to prove.  See Bacon, slip op. at 12-13 (in felony murder case,
State must show accomplice had intent to kill, intent to do great bodily
harm, or wanton disregard that death or great bodily harm would result). 
Further, in paraphrasing the overruled Orlandi dicta, the court required that
the accomplice's act be "incidental to execution and a natural and
foreseeable consequence of the original plan and in furtherance of the plan's
goal."  Thus, the jury was required to find that the murder was a direct
result of the execution of the common plan.  For these reasons, the court's
use of this language was not reversible error, if error at all. 

     Defendant suggests, for the first time on appeal, that the application
of the "wanton disregard" standard failed to distinguish the criminal
negligence standard that applies to involuntary manslaughter.  Defendant
makes this argument on appeal, even though his own proposed murder
instruction required the State to show, at minimum, "wanton disregard" on the
part of defendant.  In State v. Brunell, 159 Vt. 1, 7-8, 615 A.2d 127, 130-31
(1992), we noted that the "wanton disregard" standard, as it applies to
"depraved-heart" murder, requires that the defendant be subjectively aware of
an extreme risk to human life; on the other hand, the criminal negligence
standard that applies to involuntary manslaughter does not require the State
to prove 

 

that the defendant was aware of a somewhat lesser risk to human life.  Here,
we find no plain error because, read as a whole, the instructions fairly
apprised the jury that defendant had to be aware of the great risk involved. 
Cf. id. at 8, 615 A.2d  at 131 (reasonable juror would have understood "wanton
disregard" instruction to mean that one must actually appreciate risk to
human life in order to disregard it). 

                                C.

     Defendant's other challenges to the court's charge are without merit. 
Defendant contends that the court erred by failing to instruct the jury that
malice may be negated in a case of sudden passion.  Because an instruction on
sudden passion was neither requested nor consistent with the defense theory
of the case, there is no reversible error, if any error at all.  See State v.
Joy, 149 Vt. 607, 610, 549 A.2d 1033, 1035 (1988) (while trial court must
tailor its instructions to elements of offense charged and defenses raised,
court need not charge on theory unsupported by law or evidence); cf. State v.
Wright, 154 Vt. 512, 518, 581 A.2d 720, 724 (1989) (erroneous jury
instructions were harmless in light of posture of defense). 

     Defendant also challenges the court's instruction on attempt, arguing
that it could have led the jury to conclude that a mere first step toward
commission of the robbery would be sufficient to constitute the crime of
attempted robbery.  This claim of error is unfounded.  The court instructed
the jury that the robbery must have gone "beyond mere planning," and that
defendant had to have taken "some substantial step" to accomplish the illegal
act.  Further, the court gave a lengthy instruction on withdrawal from a
criminal enterprise. 

     Next, defendant contends that the court's instruction on the underlying
offense of robbery was flawed because it failed to identify the intended
victim of the crime.  He points out that there was evidence that Bessette's
gun was taken after the murder, and argues that, without a clear
identification of the robbery victims, the jury may have concluded that the
theft of the gun was a sufficient predicate upon which to convict defendant
for felony murder.  Again, defendant's claim is unfounded.  The court's
charge and the parties' opening and closing statements leave 

 

no doubt that the underlying crime in the case, upon which the felony murder
charge was based, was the attempted robbery of cocaine from the occupants of
Ann Barbour's home. 

     Finally, defendant claims that the court's instructions failed to inform
the jury that Bessette's death must have occurred during the attempted
robbery.  We find no error in the instructions, which required the jury to
find that "the killing was done in the perpetration or attempted perpetration
of a robbery," and that the homicide occurred "during the attempt to carry
out" the robbery or attempted robbery. 

                               III.

     In defendant's view, whether the evidence was sufficient for the jury to
convict him of felony murder will depend on our resolution of his challenge
to the jury instructions. Apparently, he is arguing that there was
insufficient evidence of "malice" for the jury to convict him.  We conclude
that there was ample evidence to support the jury's determination that
defendant acted, at minimum, in wanton disregard of the risk to human life
when, during the course of an attempted robbery of a drug dealer, he pointed
a loaded gun at one of the occupants of the drug dealer's house.  Cf.
Brunell, 159 Vt. at 8, 615 A.2d  at 131 (jury could reasonably have found that
defendant was aware of deadly risk of shaking and covering mouth of 20-month-
old infant). 

                               IV.

     Defendant also appeals from the trial court's denial of his motion for a
new trial, which was based on juror misconduct and extraneous influence.  He
argues that the court should have granted his motion because (1) some jurors
disregarded the court's instructions to leave their cars at home, which
suggested that they intended to return a quick verdict; (2) the court
informed the jurors that they would be sent to a hotel if they did not reach
a verdict by ten o'clock in the evening, which may have pressured the jury
into returning a quick verdict; (3) two members of the jury were exposed to
media coverage, and some jury members discussed which jurors had read news
accounts about the case; and (4) during deliberations, certain members of the
jury complained that they wanted to finish quickly because they needed to get
back to work or to 

 

attend social engagements. 

     The evidence on these points was submitted to the trial court in the
form of two affidavits from jurors.  At a hearing on defendant's motion for a
new trial, the court ruled that the affidavits were wholly inadmissible
because they contained material excluded under V.R.E. 606(b), which precludes
jurors from commenting on matters that occurred during deliberations. Absent
the affidavits, the court denied the motion for a new trial, ruling that it
lacked supporting evidence.  Defense counsel did not resubmit the affidavits
without the forbidden material. 

     We find no abuse of discretion in the court's denial of defendant's
motion.  The court properly refused to consider statements by the jurors as
to what may have influenced their deliberations.  See Bellows Falls Village
Corp. v. State Highway Bd., 123 Vt. 408, 411-13, 190 A.2d 695, 697-98 (1963)
(trial court may consider juror testimony that one juror took private view of
land in dispute and that other jurors read newspaper editorial vilifying one
side, but court may not consider testimony as to effect of these facts on
jury's deliberation).  Absent those statements, defendant's motion had
little, if any, support.  See State v. Bogie, 125 Vt. 414, 418, 217 A.2d 51,
55 (1966) (party seeking corrective action has burden of establishing
sufficient facts in support of motion for new trial based on juror
misconduct). 

     Defendant's evidence of extraneous influence falls far short of that
required to overturn a jury verdict.  First, the mere fact that some jurors
brought their cars does not suggest prejudice.  The court did not order, but
merely suggested, that it might be easier if the jurors were dropped off
because of the difficulty in predicting when a verdict would be reached.
Second, we see no danger of prejudice in the court's message to the jurors
that they would be sent to a hotel if they did not reach a verdict by ten
o'clock that evening.  See State v. James, 499 So. 2d 721, 727 (La. Ct. App.
1986) (no error where deputy sheriff informed jurors that they would spend
night in hotel if verdict was not reached that evening; jurors were entitled
to know such information).  The jurors had already been advised to be
prepared to stay overnight, and the court made it clear that it did not
intend to suggest that it was imposing a time limit for reaching a verdict. 
Third, 

 

the pressures on jurors to return to work or to attend social engagements is
part of the normal pressure on jurors sequestered during deliberations, and
cannot be considered an extraneous influence sufficient to overcome a jury
verdict, even assuming V.R.E. 606(b) permitted consideration of such factors.
James, 499 So. 2d  at 727 (comments by jurors that they wanted verdict by
certain time due to social engagements did not warrant new trial). 

     Finally, regarding the jurors' exposure to news accounts, defendant does
not indicate which articles the jurors read.  There is no suggestion that the
jurors were exposed to newspaper accounts such as the one in Bellows Falls --
an editorial railing against one of the parties and expressing hope that the
jurors would make a decision based on morality.  123 Vt. at 409-10, 190 A.2d 
at 696.  The mere statement that some jurors were exposed "to news accounts,
without more, is insufficient reason to cause a new trial."  State v.
Searles, 159 Vt. 525, 530, 621 A.2d 1281, 1284 (1993); see Palmigiano v.
State, 387 A.2d 1382, 1386 (R.I. 1978) (juror's affidavit that other jurors
had read press accounts during trial did not demonstrate prejudice where
articles were "fair presentations of the testimony heard in open court"). 

     Affirmed.

                              FOR THE COURT:

                              _______________________________________
                              Associate Justice