State v. Turgeon

State v Turgeon  (94-683); 165 Vt 28; 676 A.2d 339

[Opinion Filed 08-Mar-1996]

       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. 94-683


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Windsor Circuit

John P. Turgeon                                   November Term, 1995


Paul F. Hudson, J.

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

William J. Donahue, White River Junction, for defendant-appellant


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


       MORSE, J.   Defendant John Turgeon appeals his conviction on nine
  criminal charges, including attempted aggravated murder, contending that
  the trial court erred in: (1) failing to instruct the jury on attempted
  voluntary manslaughter; (2) failing to enter judgment of acquittal on the
  charge of escape; (3) instructing the jury on the use of reasonable force
  in arrest; and (4) failing to grant a mistrial after a juror collapsed. 
  Defendant also contends that his right to a speedy trial was violated, and
  that his sentence was wrongfully increased.  We reverse the conviction for
  escape, but otherwise affirm.

       On October 6, 1990, defendant had an altercation with his estranged
  wife, Tammy Turgeon, outside Bucky's Foodstop in Windsor, Vermont.  When
  defendant attempted to leave, his wife held onto the door of his truck and
  was injured as he drove away.

       After defendant left Bucky's, he went to his rooming house and
  returned armed with a handgun in a shoulder holster and a shotgun.  He
  drove past Bucky's, honking the horn and waving at police and rescue
  personnel who had responded to the scene of his wife's accident.

 

       Officer Morse of the Windsor Police pursued defendant, who drove
  erratically, slamming on the brakes, weaving, and hitting parked cars. 
  Defendant fired his shotgun at Officer Morse's cruiser twice, shattering
  the windshield.  Two more cruisers joined the chase.  They followed
  defendant onto Main Street in Windsor, where he got out of his truck and
  again fired the shotgun at Officer Morse.  The shots missed him, but a
  pellet struck Marilyn Morse-Jette, a pedestrian, in the head.

       Defendant then fled on foot through a residential area.  He was
  apprehended at the Union Street Market by Officer Cloud and Trooper Leahy
  who told him that he was under arrest, and to "freeze."  When defendant
  tried to run away, a bystander tripped him.  Defendant got up, and,
  ignoring the officers' demands that he surrender, shot Trooper Leahy in the
  abdomen.  He left the scene and spent the night in the woods before being
  apprehended by the Vermont State Police the following morning.

       In addition to nine state offenses, defendant was charged with two
  federal firearms violations.  In June 1991, defendant and the State entered
  a plea bargain whereby the State agreed to dismiss three charges and
  defendant agreed to plead guilty to the remaining six.  The State further
  agreed to recommend a maximum sentence of twenty-five years.  Judge Hudson
  sentenced defendant to fifteen to twenty-five years for attempted
  aggravated murder, with sentences for the other state offenses to run
  concurrently.  It was the intent of the parties that the state sentence
  would run concurrently with any federal sentence imposed for the firearms
  violations.

       In March 1992, defendant was sentenced to two consecutive 120-month
  terms on the federal firearms charges, the first of which was not to begin
  until defendant had served ten years of his state sentence, or had been
  released from state custody, whichever came first.  Defendant subsequently
  filed a motion to correct his state sentence, contending that because the
  maximum allowable term for aggravated attempted murder was twenty years, he
  could not be sentenced

 

  to fifteen to twenty-five.  Defendant also noted that though the maximum
  allowable term for aggravated assault was five years, he had been sentenced
  to six years on that charge.  Judge Hudson corrected the sentences, but
  ordered that they run consecutively so that they totalled eighteen to
  twenty-five.  Thus the court effectively increased defendant's sentence.

       In August 1992, defendant appealed to this Court, arguing that in
  accepting the plea bargain, he had relied on the condition that his state
  and federal sentences would run concurrently.  We vacated the state
  sentences, holding that where a trial court cannot impose the sentence
  recommended by a plea agreement, the proper remedy is to allow the
  defendant to withdraw his plea and proceed to trial.  State v. Turgeon, 
  161 Vt. 561, 561, 641 A.2d 88, 89 (1993) (mem.).  If defendant chose not to
  withdraw his plea, his sentence was to be redetermined on remand.

       Defendant elected to withdraw his plea in September 1993.  In June
  1994, defendant filed a motion to dismiss for lack of a speedy trial which
  was denied.  Two weeks later, a four-day trial produced a jury verdict of
  guilty on all counts.  Judge Hudson imposed a sentence of 24.5 to 43 years.

                                I.

       Defendant first argues that the court committed reversible error in
  failing to instruct the jury on the lesser-included offense of attempted
  voluntary manslaughter.  He contends that the jury could have found that
  his rampage was caused by the fight with his wife, and that his state of
  mind mitigated the offense.

       Voluntary manslaughter has been defined as

        "the unlawful killing of another, without malice . . . as when the
        act is committed `with a real design and purpose to kill, but
        through the violence of sudden passion occasioned by some great
        provocation' . . . Every man, when assaulted with violence or
        great rudeness is inspired with a sudden impulse of anger which
        puts him upon resistance before time for cool reflection, and if
        during that period he attacks his assailant with a weapon likely to
        endanger life, and death ensues, it is regarded as done through
        heat of blood, or violence of anger, and not through malice."

 

  State v. Trombly, 148 Vt. 293, 302, 532 A.2d 963, 969 (1987) (first
  alteration in original) (quoting State v. McDonnell, 32 Vt. 491, 545 (1860)
  (overruled on other grounds, State v. Burpee, 65 Vt. 1, 36, 25 A. 964, 974
  (1892)); see also State v. Duff, 150 Vt. 329, 331, 554 A.2d 214, 215 (1988)
  (overruled on other grounds, State v. Powell, 158 Vt 280, 286, 608 A.2d 45,
  48 (1992)) (in homicide prosecution, malice may be negated by finding of
  "sudden passion or great provocation").

       In more modern terms, voluntary manslaughter has four elements: (1)
  adequate provocation; (2) inadequate time to regain self-control or "cool
  off"; (3) actual provocation; and (4) actual failure to "cool off."  2 W.
  R. LaFave & A. W. Scott, Substantive Criminal Law § 7.10, at 255 (1986). 
  The first and second of these elements were conspicuously absent in this
  case.

       Whether provocation is legally adequate to reduce murder to
  manslaughter is determined by an objective test; the loss of self-control
  must be reasonable under the circumstances.  See State v. Arteaga, 896 P.2d 1035, 1046 (Kan. 1995) (whether provocation is legally sufficient is
  determined by objective test); State v. Mauricio, 568 A.2d 879, 884 (N.J.
  1990) (question of whether provocation is adequate amounts to whether loss
  of self-control is reasonable).

       The alleged provocation here was a heated verbal exchange between
  defendant and his wife.  She had obtained a relief-from-abuse order, and
  tormented him about the fact that he was legally barred from visiting his
  son.  She also tried to detain him by holding on to his truck door.  His
  response was a fit of anger, but it was not directed at his wife.  Instead,
  after leading police on a chase through Windsor, he shot Trooper Leahy, a
  third party who was not involved in the initial altercation.  This response
  cannot, under any view of the facts, be deemed a reasonable reaction to a
  domestic confrontation.

       Furthermore, as the elements make plain, voluntary manslaughter is a
  time-sensitive doctrine; it applies only where an adequately provoked
  individual strikes before he has an opportunity to cool off.  See Trombly,
  148 Vt. at 302-03, 532 A. 2 d at 969; State v.

 

  McDonnell, 32 Vt. 491, 545 (1860) (if man assaulted with violence or great
  rudeness acts before time for cool reflection, it is regarded as done
  through heat of blood, not malice).  The cooling-off element is also
  evaluated under an objective standard.  If a reasonable person would have
  regained self-control in the period between the provocative event and the
  violent response, the lesser-included offense is not available.  See
  Mauricio, 568 A.2d  at 884 (even where provocation is reasonable,
  manslaughter not available if one should have cooled off).

       Again, under no reasonable view of the evidence, given the substantial
  amount of time that passed between defendant's encounter with his wife and
  the shooting of Trooper Leahy, can the "sudden response" aspect of the test
  be met.  Defendant had time to cool off.

       The trial court need only instruct the jury on the elements of
  lesser-included offenses that are fairly raised; it need not charge on a
  theory not supported by the evidence.  State v. Joy, 149 Vt. 607, 610, 549 A.2d 1033, 1035 (1988).  No reasonable jury could find that the factual
  scenario in this case fits the crime of voluntary manslaughter.  The court
  did not err.  See State v. Bailey, 889 P.2d 738, 748-49 (Kan. 1995)
  (failure to instruct on voluntary manslaughter not error absent substantial
  evidence that reasonably supports conviction on the charge); People v.
  Pouncey, 471 N.W.2d 346, 351 (Mich. 1991) (refusal to instruct on voluntary
  manslaughter correct where evidence did not support charge).

                                II.

       Defendant also contends that the court should have entered judgment of
  acquittal on the escape charge, see V.R.Cr.P. 29, because he was never
  taken into custody.  Defendant is correct that there is no escape absent
  lawful custody. 13 V.S.A. § 1501 ("person who, while in lawful custody . .
  . escapes or attempts to escape," commits crime of escape) (emphasis
  added). Lawful custody does not arise until defendant is brought under the
  officer's control through physical restraint, or submits to the officer's
  authority.  A suspect who resists, as defendant did here, is not in custody
  until his liberty is restrained.  State v. Blaine, 133 Vt. 345, 351, 341 A.2d 16, 20 (1975)  ("process of arrest was started, but resisted and never
  completed").

 

       In Blaine, the defendant, who had injured his neighbor during a
  dispute, went to the Windsor police station to describe his version of the
  incident.  While he was speaking to one officer, another entered the room
  and told him he had a warrant for his arrest.  The defendant drew a gun and
  pointed it at the arresting officer.  The defendant then fled the station. 
  The Court held that, because the defendant did not submit to arrest, and
  was never restrained or in the control of the officers, there was no
  escape.  Id.

       Here as well, defendant was never in the control of the officers; when
  Trooper Leahy told him to freeze and attempted to arrest him, defendant
  fled.  The crime of escape does not fit the facts, and we must reverse the
  escape conviction.  Because the one-to-three-year sentence for escape is
  concurrent with the fifteen-to-twenty-year sentence for attempted murder,
  the total length of defendant's sentence is unchanged by this ruling, and
  it is unnecessary to remand for resentencing.  See State v. Simpson, 160
  Vt. 220, 225, 627 A.2d 346, 350 (1993) (when fewer than all convictions are
  reversed on appeal, remand for resentencing not required if separate
  sentences were imposed for each offense).

                               III.

       Under 13 V.S.A. § 1024(a)(4), a person is guilty of aggravated assault
  if he causes physical injury to any person with intent to prevent a law
  enforcement officer from performing a lawful duty.  Defendant's conduct
  falls squarely within this language; he injured Marilyn Morse-Jette when he
  shot at Officer Turgeon in an attempt to evade arrest.  The court
  instructed the jury that an officer is entitled to use reasonable force
  when making an arrest.  Defendant argues that the court erred in its
  instruction on reasonable force, because the officer never effected an
  arrest.  Arrest, however, is not an element of the crime charged; defendant
  can be found guilty of aggravated assault regardless of whether arrest was
  accomplished.  We fail to see how the instruction harmed defendant.  There
  was no error.

                               IV.

       Next defendant claims that he was deprived of his right to a speedy
  trial because he was

 < not tried within the time limits established by this Court's Administrative
  Order No. 5 § 2.  The standard we apply to such a claim is as follows:

      The failure to bring a defendant to trial within the time limits set
      by our administrative order does not necessarily mean that the
      defendant was denied a speedy trial or that the case against him
      must be dismissed.  Thus, rather than quibble over calculations of
      time . . . we examine the circumstances . . . according to the
      standards set forth in Barker v. Wingo, 407 U.S. 514, 530,
      (1972). . . . Those four factors are the length of the delay, the
      reason for the delay, defendant's efforts at obtaining a speedy trial,
      and the prejudice to the defendant.

  State v. Keith, 160 Vt. 257, 266-67, 628 A.2d 1247, 1253 (1993) (citations
  omitted).  Of these factors, prejudice is the most important.  Where there
  is no prejudice to the defense at trial, a speedy-trial claim cannot
  prevail. Id. at 268-69, 628 A.2d  at 1254.

       Defendant elected to withdraw his plea in September 1993.  In
  November, he indicated that he was ready to go to trial, and requested that
  he be transferred from the federal penitentiary at Leavenworth, Kansas, to
  Vermont.  In December defendant filed a demand for a speedy trial.  The
  Department of Corrections had requested that defendant be returned by the
  United States Marshals Service rather than through more costly commercial
  travel, and the State was granted a continuance because of delays that
  occurred in arranging defendant's return to Vermont.    Trial commenced in
  June 1994.  Thus approximately seven months passed between the date
  defendant said he was ready to go forward and the date the trial began.

       Defendant asserts that he was prejudiced because two witnesses he
  wished to call were no longer available by the time his trial went forward. 
  One, Vivian Young, had died and the second, Tammy Turgeon, had moved to
  another jurisdiction.  The testimony of these witnesses was relevant to the
  issue of provocation.  Tammy Turgeon, defendant's estranged wife, would
  have testified that she did things "that just drove [her husband] to where
  he just couldn't handle it anymore," and that on the night in question she
  started a fight with him.  Vivian Young, a witness to the altercation,
  would have testified that "when John would try to avoid Tammy, Tammy would
  go out of her way to create . . . problems."

 

       As we noted above, however, even had these witnesses testified,
  defendant would not have been entitled to an instruction on attempted
  voluntary manslaughter.  Moreover, their sworn statements taken at the
  first sentencing hearing were read to the jury.  No other claim of
  prejudice has been made. The court did not err in denying defendant's
  motion to dismiss for lack of a speedy trial.

                               V.

       Defendant further claims that his final sentence (24.5 to 43 years),
  which is longer than his plea bargained sentence (fifteen to twenty-five
  years), is presumptively vindictive, and must be overturned.  A presumption
  of vindictiveness arises only where "there is a `reasonable likelihood'
  that the increase in sentence is the product of actual vindictiveness on
  the part of the sentencing authority.  Where there is no such reasonable
  likelihood, the burden remains upon the defendant to prove actual
  vindictiveness." Alabama v. Smith, 490 U.S. 794, 801 (1989) (citation
  omitted) (quoting United States v. Godwin, 457 U.S. 368, 373 (1982)).

       The circumstances of this case do not create a reasonable likelihood
  of vindictiveness. Though the same judge imposed both sentences, the first
  sentence was imposed in the context of a plea bargain.  Theoretically,
  absent a plea agreement, the judge could have imposed a sentence harsher
  than the State recommended.  In this case, however, the court's discretion
  was tempered by the State's agreement to dismiss three counts and not
  recommend a sentence in excess of twenty-five years.  The difference
  between the two sentences may be explained by the fact that Judge Hudson's
  discretion was not so limited when he imposed the final sentence following
  trial.  No presumption of vindictiveness arises here, and defendant has
  shown no evidence of actual vindictiveness.  See McKenzie v. Risley, 842 F.2d 1525, 1537 (9th Cir. 1988) (that sentence imposed after trial is more
  severe than one judge would have imposed as part of plea bargain does not
  impeach legitimacy of sentence; judge could have approved settlement
  calling for sentence lighter than he would have chosen to impose); United
  States v. Townsend, 796 F.2d 158, 164, (6th Cir. 1986) (fact that defendant
  received more severe

 

  sentence upon conviction than he would have under plea agreement does not
  establish judicial vindictiveness); United States v. Lippert, 740 F.2d 457,
  460 (6th Cir. 1984) (having withdrawn plea bargain defendant cannot expect
  to receive benefits of bargain after conviction). 

                                     VI.

       Finally, defendant claims that the court erred by not declaring a
  mistrial when one of the jurors suffered a seizure during trial.  This
  claim is without merit.  When questioned, the jurors gave no indication
  that the panel had been compromised by the incident in any way.  Moreover,
  the juror who collapsed was excused.  There was no justification for a
  mistrial.  See State v. Jones, 160 Vt. 440, 449, 631 A.2d 840, 847 (1993)
  (court should not grant mistrial unless moving party establishes
  prejudice).

       Conviction for escape reversed; otherwise affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice