State v. Kelley

STATE_V_KELLEY.93-612; 163 Vt 325; 664 A.2d 708

[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. 93-612


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont
                                                  Unit 1, Windsor Circuit

James Kelley                                      January Term, 1995



Theodore S. Mandeville, Jr., J.

M. Patricia Zimmerman, Windsor County State's Attorney, White River Junction,
for plaintiff- appellee 

Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
Montpelier, for  defendant-appellant 



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


     GIBSON, J.   Defendant appeals his conviction of first-degree murder
claiming that the trial court erred by refusing to instruct the jury on a
lesser-related offense and by admitting evidence of his conduct on the day of
the murder.  He also asks us to vacate his sentence of life without parole. 
We affirm. 

     At approximately 5:00 p.m. on August 13, 1992, Jeffrey Wyman was shot to
death while he sat in his parked truck in Chester, Vermont.  Witnesses who
lived near the murder scene said they had seen a red Pontiac Fiero in the
area at the time of the shooting.  Jason Shuffleburg owned a red Pontiac
Fiero in which he and defendant had been riding together on August 13. 

     Defendant arrived at Shuffleburg's apartment about 10:00 a.m. on the day
of the shooting.  They spent the morning drinking beer both at the apartment
and while riding in Shuffleburg's car.  Sometime after noon, they left the
apartment to purchase more beer, stopping 

 

first at the Springfield Shopping Plaza so defendant could borrow money from
his wife.  Upon leaving the grocery store where his wife worked, defendant
began shouting at several teenagers who were gathered near Shuffleburg's car.
 Before a more serious altercation could ensue, Shuffleburg calmed defendant,
and the two men got back into the car and left the Plaza. 

     After leaving the Plaza, defendant and Shuffleburg returned to
Shuffleburg's apartment where they discussed a plan to rob a poker game in
Windsor, Vermont.  They left the apartment with Shuffleburg's .32 automatic
pistol.  Fearing trouble at the poker game, Shuffleburg suggested that they
rob a store in Chester, Vermont instead.  Defendant agreed.  Defendant
entered the store armed with the pistol, but aborted the robbery because
there were too many customers inside the store.  He later reentered the store
but abandoned the plan because there were again too many people present.  He
got back into Shuffleburg's car and the two drove away. 

     The two men soon noticed Jeffrey Wyman's truck parked in a pull-off area
on Dean Brook Road.  After passing the truck, defendant told Shuffleburg to
turn the car around. Shuffleburg testified that defendant wanted to show him
how crazy he was.  Shuffleburg turned the car around and pulled up to Wyman's
truck.  Taking the pistol, defendant approached Wyman.  He asked Wyman, who
was alone in the truck, if he had any beer or marijuana, and then shot him in
the head.  Defendant returned to the car and the two men left. 

     Eventually, defendant and Shuffleburg were apprehended.  Shuffleburg 
confessed to the murder but later recanted and implicated defendant as the
triggerman.  Defendant was tried by jury and convicted of first-degree

 

murder.  This appeal followed. 

                                I.

       Defendant first claims error in the court's instructions to the jury. 
In his proposed instructions, during the charge conference, and after the
jury retired, defendant requested an instruction on the crime of accessory
after the fact.  See 13 V.S.A.  5 (defining accessory after the fact).  He
argued that an accessory after the fact was a lesser-included offense of
first-degree murder and that the evidence would support such a verdict.  The
court rejected the request, noting that the elements comprising the offense
of accessory after the fact are not contained in the offense of first-degree
murder.  See State v. Williams, 154 Vt. 76, 82, 574 A.2d 1264, 1267 (1990)
(lesser-included offense is composed of some but not all elements of greater
offense, and has no elements not included in greater offense). 

     On appeal, defendant claims that an instruction on accessory after the
fact was proper because it was a lesser-related offense of first-degree
murder based on the evidence in the case. We do not consider this claim on
appeal because defendant did not object to the court's instructions on this
ground below.  State v. Roberts, 154 Vt. 59, 72, 574 A.2d 1248, 1254 (1990);
V.R.Cr.P. 30. 

                                II.

     Defendant also challenges the admission of testimony relating to three
incidents involving defendant which occurred just hours before the murder. 
He contends that the testimony was improper character evidence proscribed by
V.R.E. 404(b).  We will reverse the trial court's decision to admit this
evidence only if the court withheld or abused its discretion, see State v.
Powers, No. 92-553, slip op. at 2 (Vt. Dec. 16, 1994), and a substantial
right of defendant was affected by the alleged error.  V.R.E. 103(a). 

     The evidence on which defendant bases his claim was testimony that
defendant (1) planned to rob a poker game with Shuffleburg, (2) engaged in a
verbal altercation with teenagers in the Plaza, and (3) shouted menacingly at
a person passing by his wife's apartment.  All three incidents occurred
within hours prior to the murder.  The State offered this evidence to
establish defendant's state of mind and the events leading up to the
shooting.  Defendant objected, arguing that the evidence was irrelevant and
prejudicial, and was improper propensity evidence, in contravention of Rule
404(b).  We disagree. 

     Rule 404(b) prohibits the admission of "other bad act" evidence to prove
that the defendant had a propensity to commit the act for which he is
charged.  See State v. Jones, 160 

 

Vt. 440, 444, 631 A.2d 840, 844 (1993). Such evidence is admissible for other
purposes, however, among them proof of motive, intent or identity.  V.R.E.
404(b).  Like any evidence, "other bad act" evidence offered for a
permissible purpose may be excluded if the danger of unfair prejudice
substantially outweighs the probative value of the evidence.  Jones, 160 Vt.
at 444, 631 A.2d  at 844; V.R.E. 403.  The probative value of "other bad act"
evidence often depends on the proximity in time of the crime charged and the
other acts, and their similarity. State v. Ashley, 160 Vt. 125, 126, 623 A.2d 984, 985 (1993). 

     Here, the other acts occurred only hours before the murder, giving this
evidence great probative value.  Defendant had engaged in an escalating
course of violent behavior, which culminated in Wyman's death.  Thus, the
other acts provide the context in which the shooting took place.  See State
v. Searles, 159 Vt. 525, 529, 621 A.2d 1281, 1284 (1993); cf. Carter v.
United States, 549 F.2d 77, 78 (8th Cir. 1977) (evidence of other criminal
activity admissible to show context in which crime charged was committed). 
Indeed, defendant's actions throughout the day were necessary to explain to
the jury defendant's motive for the murder.  Cf. State v. Parker, 149 Vt.
393, 399, 545 A.2d 512, 516 (1988) (defendant's prior sexual abuse of one
child relevant to explain motive for his abuse of second child).  Defendant's
earlier random and aggressive conduct helps explain an otherwise random and
bizzare act.  After failing to follow through with his plans to rob the poker
game and the store, defendant wanted to show Shuffleburg how "crazy" he was
by killing Wyman.  Further, this evidence was probative of defendant's state
of mind just prior to the shooting.  Whether defendant's state of mind prior
to the killing carried over to the killing itself was a question for the jury
to resolve.  See Commonwealth v. Murphy, 425 A.2d 352, 355 (Pa. 1981).  The
prior incidents and the shooting occurred within a few hours, thus making the
evidence highly probative and admissible so long as defendant was not
unfairly prejudiced by its admission. 

     Evidence tending to inculpate the defendant always carries with it some
prejudice.  See Jones, 160 Vt. at 446, 631 A.2d  at 844.  Rule 403 excludes
only unfairly prejudicial evidence 

 

if such prejudice substantially outweighs the probative value.  V.R.E. 403. 
Evidence is unfairly prejudicial if its primary purpose or effect is to
provoke horror or punish the defendant, or to appeal to the jury's
sympathies.  Jones, 160 Vt. at 445, 631 A.2d  at 844.  We find that the trial
court did not abuse its discretion in admitting this evidence of other acts. 
The evidence was not offered for the purpose of eliciting jury sympathy or
horror, nor was it likely to have that effect. The evidence had substantial
probative value and was properly admitted. 

     Defendant also claims that testimony regarding the poker game robbery
was improperly admitted because the State failed to provide him notice of its
intent to use that evidence prior to trial.  See V.R.Cr.P. 26(c) (State must
give defendant notice seven days prior to trial of its intent to offer
evidence of other bad acts governed by V.R.E. 404(b)).  The purpose of this
notice requirement is to allow the defendant an opportunity to file a motion
in limine or to otherwise respond to the State's offer prior to trial.  State
v. Houle, ___ Vt. ___, ___, 642 A.2d 1178, 1181 (1994).  In this case, the
court erroneously concluded that admission was proper because the defense
knew about the plan through discovery materials it possessed.  See id.
Nevertheless, we find the error harmless because defendant filed a motion in
limine prior to trial to exclude this evidence, and the court considered and
ruled on the motion before trial began. Hence, the purpose of V.R.Cr.P. 26(c)
was fulfilled. 

                               III.

     Finally, defendant requests that we vacate his sentence of life without
the possibility of parole, the maximum sentence possible in Vermont.  The
court has wide discretion to determine and impose sentence.  State v. Neale,
145 Vt. 423, 435, 491 A.2d 1025, 1033 (1985).  Absent exceptional
circumstances, we will defer to the sentencing court so long as the sentence
is within the statutory limits.  State v. Cyr, 141 Vt. 355, 358, 449 A.2d 926, 927 (1982). 

     The permissible penalties for first-degree murder are set forth in 13
V.S.A.  2303.  The statute requires the court to allow the parties time to
present arguments relating to aggravating and mitigating factors relevant to
a permissible sentence.  Id.  2303(c).  Section 2303(d) 

 

provides a list of aggravating factors for the court to consider.  Among the
factors is whether the murder victim was "particularly weak, vulnerable or
helpless."  Id.  2303(d)(4).  In this case, the court found that the victim
was particularly vulnerable because he was sitting alone in a parked car with
no opportunity to defend himself or to escape. 

     Defendant claims that the court used factor (4) improperly in
determining his sentence. In support of his argument, defendant cites
authority defining "vulnerability" as some special characteristic of the
victim that is not necessarily shared by other crime victims, such as extreme
youth or advanced age.  See, e.g., State v. Harwell, 515 N.W.2d 105, 110
(Minn. Ct. App. 1994) (victim's young age and reduced physical capacity while
defendant held her down made victim particularly vulnerable); State v. Jones,
801 P.2d 263, 268 (Wash. Ct. App. 1990) (victim may be vulnerable due to
extreme youth, advanced age, ill health or disability). Defendant further
argues that the special characteristic must be known to the perpetrator, who
must exploit it to accomplish the crime.  Cf. Jones, 801 P.2d  at 268 (for
victim's vulnerability to justify exceptional sentence, defendant must know
of vulnerability and vulnerability must be substantial factor in
accomplishing crime). 

     We do not find the authority defendant cites persuasive in interpreting
13 V.S.A.  2303(d)(4).  The Minnesota and Washington statutes construed in
Harwell and Jones set forth the factors that make a victim "particularly
vulnerable" within the meaning of those statutes. See Minn. Stat. Ann. app.
 244 II.D.2.b(1) (West 1992) (victim "particularly vulnerable due to age,
infirmity, or reduced physical or mental capacity"); Wash. Rev. Code Ann. 
9.94A.390(2)(b) (West 1988 & Supp. 1995) (victim "particularly vulnerable or
incapable of resistance due to extreme youth, advanced age, disability, or
ill health").  In contrast,  2303(d)(4) does not limit the term
"vulnerability."  Section 2303(d)(4) permits the trial court to use its
discretion to determine whether, under the particular facts of the case and
based on the evidence, the victim was particularly vulnerable.  We find
nothing illogical or contrary to the plain language of  2303(d)(4) to
characterize as vulnerable a person sitting alone in his car on 

 

the side of the road with a gun pointed to his head.  The trial court did not
abuse its discretion in applying subsection (d)(4) to these facts. 

     Affirmed.

                                   FOR THE COURT:



                                   _____________________________
                                   Associate Justice