State v. Sahm

State v. Sahm  (94-518); 165 Vt 576; 682 A.2d 947

[Opinion Filed 14-Jun-1996]


                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 94-518

                         APRIL TERM, 1996


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Chittenden Circuit
Carleton C. Sahm, Jr.           }
                                }     DOCKET NO. 583-2-93CnCr


       In the above-entitled cause, the Clerk will enter:

       Defendant appeals from a sentence of twelve to fifteen years imposed
  for his conviction by jury of voluntary manslaughter.  He claims that
  during the sentencing hearing, the judge engaged in judicial fact finding
  contrary to the jury verdict, which effectively deprived defendant of his
  constitutional right to a jury trial, and violated his right to due process
  of law.  Defendant also contends that the court's rationale for imposing
  the sentence was based upon material misinformation.  He asks that his
  sentence be vacated and remanded for a new sentencing hearing.  We affirm.

       Carleton Sahm and Sharon Towne became romantically involved while
  living in the Syracuse, New York, area.  After dating for approximately one
  year, Sharon moved with her children to Vermont to take a job with the
  Price Chopper grocery chain.  Subsequently, her relationship with defendant
  deteriorated until Sharon stated that she wanted to end it.  Sahm, however,
  continued to call and question her about her relationship with Bill Gemmer,
  a fellow employee, whom defendant later shot and killed.

       Early on the morning of February 9, 1993, the day before the incident,
  defendant called Sharon at work, and an argument ensued.  Defendant called
  again at 6:00 a.m., and Sharon told him she would call him back.  When they
  spoke later, defendant was apologetic.  He did not mention that he planned
  to come to Vermont.

       That evening defendant went to his mother's house in New York and
  retrieved his hunting rifle.  He then rented a car and drove to Burlington,
  Vermont, stopping on the way to purchase a box of ammunition.  Defendant
  arrived in Burlington at about 11:30 p.m. and rented a room at the Econo
  Lodge.

       The next morning, Bill Gemmer left work at approximately six.  He and
  Sharon had agreed that he would pick her and her children up at home, drop
  the children off at school, and then take her to work.  Gemmer had also
  made plans with his ex-wife to pick up his son for visitation.

       As Gemmer and Towne drove towards the Price Chopper after dropping the
  children off at school, they passed defendant who was parked at a gas
  station buying coffee.  Defendant followed them to the Price Chopper,
  loading the rifle with eight shells as he drove.  Towne and

 

  Gemmer parked in the Price Chopper parking lot.  Gemmer's ex-wife entered
  the parking lot at about the same time and removed decedent's two-year-old
  son from his child seat for the visitation transfer.

       Defendant then pulled his car up to the Towne vehicle, and ordered her
  into the car with him.  She responded by stating that she had to help
  transfer the child first, and that then she would go with him.  Towne moved
  away from defendant's vehicle while Gemmer moved toward it, apparently
  intending to confront defendant.  Towne testified that she did not witness
  any altercation.  When she heard a shot, however, Towne began to run toward
  the front door of the Price Chopper.  She heard more shots before she
  reached the store.

       Several witnesses saw defendant turn and fire two shots in the
  direction of the Price Chopper.  They testified that while he was shooting,
  defendant looked "pretty calm," and that "taking his time when he was
  shooting at her."  Another witness testified that he "took aim, he would
  shoot; take several more steps, take another shot."  One of the bullets was
  discovered inside the store.  The other hit a metal bumper in front of the
  door of the store and broke into fragments.

       After the shooting, defendant got back into his car and drove away. 
  He returned to his hotel room, made several telephone calls to his mother
  and to his place of employment in New York and eventually turned himself in
  to the police at approximately 11:30 that morning.

       After a jury trial, which resulted in a conviction for voluntary
  manslaughter, the judge sentenced defendant to a minimum of twelve years
  and a maximum of fifteen.  The sentence was to be split with twelve years
  served followed by three years' probation.  This sentence falls within the
  range prescribed for a conviction of voluntary manslaughter.  See 13 V.S.A.
  §2304 ("A person who commits manslaughter shall be fined not more than
  $3,000.00, or imprisoned for not less than one year nor for more than 15
  years, or both.").

       During sentencing, the judge stated, "[W]e're not here because of a
  mistake or an accident.  We are here because there was an intentional
  killing of another human being." The judge went on to acknowledge that
  "[t]he Court does not see the state's recommendation [for sentencing] as
  tantamount to a murder sentence, because that's not what it is.  The
  Legislature has provided up to life in prison for murder, and that's not
  [what will be imposed.]"  The judge saw the twelve-year sentence rendered
  as a "discount" from the fifteen-year maximum he was allowed to give under
  the statute.  He explained that this "discount" is a "mitigating effect for
  the jumble of emotions that [we]re going on at th[e] time [of the
  killing,]" and reasoned that "the court cannot . . . find that a minimum of
  twelve years is not appropriate for the killing of another human being who
  was just minding his business, whose death was occasioned by someone who
  shows up looking for them with a gun."

       Defendant's entire argument rests on a strained interpretation of
  isolated comments the court made during sentencing.  While explaining its
  rationale, the court stated that Gemmer was "minding his own business" and
  didn't "see [defendant] coming until the end." Defendant claims these
  statements contradicted the jury verdict of voluntary manslaughter, which
  necessarily rested on a finding that Gemmer provoked the shooting.  The
  larger context of the court's statement belies this claim.

       When read in its entirety, the court's statement simply points out
  that on the day of the shooting, Gemmer was going about his normal routine,
  while defendant, in contrast, had driven hundreds of miles to find his
  estranged girlfriend, bringing along a rifle and purchasing ammunition on
  the way.  The court acknowledged that the jury "did consider some
  responsibility on Mr. Gemmer's part," and found that "in all respects . . .
  til possibly the very end this was all initiated by [defendant]." (Emphasis
  added).  Thus, contrary to defendant's assertions, the

 

  court did not base its sentence on a finding that Gemmer played no role in
  the shooting.  The findings and the sentence are consistent with a jury
  verdict of voluntary manslaughter.  See State v. Thompson, 150 Vt. 640,
  645, 556 A.2d 95, 99 (1989) (appropriate and proper for court to consider
  circumstances of offense in sentencing).

       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