State v. Davis

State v. Davis (95-090); 165 Vt 240; 683 A.2d 1

[Opinion Filed 21-Jun-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. 95-090


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 3, Caledonia Circuit

Richard Davis                                     April Term, 1996


David Suntag, J.

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

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


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


       ALLEN, C.J.  Defendant appeals his jury convictions for kidnapping, 13
  V.S.A. § 2405, and simple assault, 13 V.S.A. § 1023.  He argues that the
  allocation of the burden of proof under 13 V.S.A. § 2405(b) violates the
  United States and Vermont Constitutions and that the trial court erred when
  it failed to hold a competency hearing.  Defendant also argues that the
  court committed other trial errors regarding the admission or exclusion of
  evidence.  We affirm.

       On July 10, 1993, the victim, then married to defendant, left him and
  obtained a restraining order against him.  She filed for divorce on July
  23, and defendant subsequently threatened her with violence if she
  proceeded with the divorce.  On August 16, defendant entered the victim's
  home and waited there for her to return from work.  When the victim opened
  the door, defendant sprayed her in the face with pepper spray.  He struck
  her in the face, hitting her in the jaw and nose.  He then pulled her into
  the bedroom by her hair, while at the same time kicking her.  After
  throwing the victim onto the bed, defendant tore her clothes from her body
  while continuing to strike her.  Picking up some duct tape, defendant told
  her to put

 

  her hands behind her back and that she was "going for a ride."  She
  initially refused but he threatened to beat her more if she did not
  cooperate with his request.

       After allowing the victim to put some clothes back on, defendant taped
  her hands behind her back.  He led her to her car, where he forced her face
  down into the back seat.  At that time, he said, "I put a gun in the trunk. 
  You're going to go with me and watch me while I shoot myself."  Defendant
  then drove the car up an isolated mountain road.  After a while, he stopped
  the car and spoke to her in a desultory manner, saying that he was not sure
  whether he was going to shoot himself, or her, or her and then himself.

       Defendant moved the victim to the front seat and continued to drive. 
  While driving, he continued to threaten the victim with violence.  As they
  passed a home with people outside, the victim yelled for help.  In
  response, defendant sped up and struck the victim in the jaw. Defendant
  then turned off the road and drove across a field, stopping at the edge of
  a wooded area.  Defendant dragged the victim from the car and towards the
  woods.  Before reaching the woods, he severed the tape binding her wrists
  and said, "Go on.  Get out of here."  As the victim fled, defendant drove
  the car towards her.  She jumped into a grove of trees, and he drove off.

       The victim walked to the road and flagged down a passing motorist. 
  The motorist took the victim to an emergency room in St. Johnsbury, where
  she was found to have a laceration above her right eye, bruising and
  swelling around both eyes, a swollen left cheek and jaw, a broken nose,
  scratches and abrasions on her neck, and abrasions on her back and
  buttocks.

       The incident was reported to the police and a bulletin to "be on the
  lookout" for defendant, possibly driving the victim's car, was broadcast to
  officers on patrol.  Later that evening, two state troopers drove to
  defendant's mother's trailer, where defendant lived, to look for him. 
  Before knocking on the trailer door, the officers noticed the victim's
  automobile parked seventy feet behind the trailer.  Although the troopers
  did not find defendant at that location, they had the victim's automobile
  removed by a wrecker and taken to a secure location.

 

  The victim's automobile was subsequently searched with her consent.

       The police also looked for defendant at the victim's home, and
  searched for evidence of the crime while there.  They located a paper bag
  containing a number of items from the victim's home, but which she had not
  placed in the bag.  One item, not from her home but found in the bag, was a
  United States Navy knife and sheath, both wrapped in a vinyl tent bag.  At
  trial, the victim testified that she had never seen the knife before, and
  did not know to whom it belonged. She recognized the tent bag as from a
  tent that she had purchased; she had given the tent to defendant's parents
  when they came to collect defendant's belongings after the victim and
  defendant separated.

       Defendant was apprehended and subsequently charged with kidnapping and
  aggravated assault.  The information charging defendant with kidnapping
  reflected the statutory punishment of life imprisonment.  On November 23,
  1993, defendant entered into a plea agreement, and the State amended the
  charge to mitigated kidnapping, with a maximum sentence of thirty years
  imprisonment.  Defendant later withdrew his plea with the permission of the
  court.  Before trial, however, the information was not amended to again
  reflect punishment of life imprisonment.

       Before trial, the State filed a motion in limine seeking to exclude
  evidence of the victim's psychiatric hospitalizations in 1969 and 1984. 
  The defense sought to introduce medical records showing the victim had
  attempted suicide and had been hospitalized for observation.  The medical
  records also included references to her use of alcohol.  The defense sought
  to use the evidence to impeach the victim.  The trial court excluded the
  evidence on the ground that it was not probative of the victim's
  truthfulness.  The court also found the evidence prejudicial to the victim.

       Before trial, defendant's attorney filed a motion for a competency
  evaluation, and the court ordered an examination.  The competency
  evaluation was performed on October 5, 1993. The psychiatric examiner's
  report noted that defendant was of low-average intelligence and had no
  previous inpatient or outpatient psychiatric history.  In the report, the
  examiner also stated

 

  that defendant understood the charges against him, understood the roles of
  the participants in the criminal proceeding, and was capable of assisting
  in the preparation of his defense.  A competency hearing, scheduled for
  November 9, 1993, was cancelled when defendant entered into a plea
  agreement.  When defendant sought to change his plea, defense counsel
  stipulated to the findings in the psychiatric report and agreed that
  defendant was competent to stand trial.

       A different attorney was assigned to defendant for the trial. 
  Defendant's second attorney told the court that he was "concerned about
  competency" and noted that defendant had been uncooperative because he
  "either doesn't have the ability or he's unwilling and stubborn."  The
  trial judge noted that, based on his own observations and his review of the
  competency report, he was not concerned about defendant's competency. 
  Nevertheless, the judge suggested that a mental health screener evaluate
  defendant to determine whether a full-scale competency examination should
  be performed.  Defense counsel told the court that that course of action
  was "acceptable."

       The following morning, the court provided defendant with a mental
  health screener. Defendant refused to speak with the mental health
  screener, so the mental health screener reviewed the competency report and
  spoke to defense counsel about defendant's behavior.  The mental health
  screener concluded that defendant's unwillingness to cooperate with counsel
  resulted from immaturity rather than mental illness.  Defense counsel
  "continue[d] to have some concerns" and said, "I don't know if that's
  paranoia or not, but he feels very isolated, feels that nobody has listened
  to him."  The trial judge responded that, "it does not appear to me there
  is a competency issue."  The competency issue did not arise again.

       During trial, defendant filed two motions seeking the recusal of the
  trial judge, the first before trial and the second before sentencing.  The
  first motion sought recusal on the ground that the judge had presided over
  defendant's change-of-plea hearing.  The administrative judge denied
  defendant's first motion because the trial judge's prior involvement in a
  judicial capacity was insufficient grounds for disqualification.  The
  second motion sought the trial judge's recusal from

 

  sentencing because information from defendant's competency evaluation had
  erroneously been included in the presentence investigation report, which
  the trial judge had reviewed.  On defendant's request, however, the trial
  judge struck from the report defendant's competency evaluation and ordered
  the preparation of a new report by a different probation officer.  The
  administrative judge also denied defendant's second recusal motion.

       A jury convicted defendant of kidnapping and of the lesser-included
  offense of simple assault.  The trial judge sentenced defendant to life
  imprisonment, with not less than twenty-five years to serve.

                                I.

       Defendant argues that the kidnapping statute, 13 V.S.A. § 2405,
  unconstitutionally shifts the burden of proof to the defendant.  We
  conclude that the legislative allocation of the burden of proof in §
  2405(b)(FN1) is clearly permissible under the United States and Vermont
  Constitutions.

       In Patterson v. New York, 432 U.S. 197 (1977), the United States
  Supreme Court upheld a New York law substantially similar to § 2405.  At
  issue in Patterson was a statute that defined second-degree murder as
  causing the death of another with the intent to do so, but which also
  provided an affirmative defense of extreme emotional disturbance.  If the
  defendant could prove by a preponderance of the evidence that he acted
  under the influence of extreme emotional disturbance for which there was a
  reasonable explanation, the crime was reduced from murder to manslaughter. 
  The defendant challenged the statutory allocation of the burden of proof as
  a violation of due process.  The Supreme Court upheld the law, noting that
  the victim's death, the defendant's intent to kill, and causation were all
  facts that the state was required to prove beyond a reasonable doubt, id.
  at 205, and that the affirmative defense did not require the defendant to

 

  disprove any of these facts.  Id. at 206-07.

       Defendant argues that the safe-release defense requires him to
  disprove an element of the State's prima facie case.  We disagree.  Under §
  2405(a), the State must prove that defendant knowingly restrained the
  victim with the intent to commit one of several enumerated acts: in this
  case, that defendant intended to inflict bodily injury upon the victim or
  intended to place her in fear that she would be subjected to bodily injury. 
  13 V.S.A. § 2405(a)(1)(C).  The defense of safe release requires a
  defendant to prove that he released the victim without causing serious
  bodily injury to her.  13 V.S.A. § 2405(b).  The elements of the crime of
  kidnapping and of the safe-release defense differ in two respects: first,
  the State must prove defendant's intent to inflict bodily injury while a
  defendant must prove absence of actual serious bodily injury, and second,
  the crime of kidnapping involves ordinary bodily injury while the
  safe-release defense involves serious bodily injury.  The elements of the
  crime of kidnapping and of the affirmative defense of safe release are
  therefore not coextensive.

       Defendant also argues that § 2405(b) violates the Vermont
  Constitution.  In State v. Messier, 145 Vt. 622, 497 A.2d 740 (1985), we
  responded to a similar argument regarding the affirmative defense of
  insanity.  We first noted that this Court has never interpreted the Vermont
  Constitution to require the State to prove the absence of mitigating or
  exculpatory matters.  Id. at 627, 497 A.2d  at 743.  We then concluded that
  the Vermont Constitution does not require the Legislature to choose between
  eliminating an affirmative defense altogether or requiring the State to
  prove its absence.  Id.  Accordingly, § 2405(b) does not violate the
  Vermont Constitution.

       Defendant further argues that under the factor analysis in State v.
  Baker, 154 Vt. 411, 417, 579 A.2d 479, 482 (1990), the burden of proof
  should be allocated to the State.  The Baker analysis, however, applies
  only where the State is not constitutionally required to bear the burden of
  proof and where the Legislature has not declared which party should bear
  the burden of proof.  Because the Legislature has declared, by the use of
  the words "affirmative defense" in § 2405(b), that defendant bears the
  burden of proof, we decline defendant's invitation to apply

 

  the Baker analysis.  See Messier, 145 Vt. at 627, 497 A.2d  at 742 (words
  "affirmative defense" in statute indicate legislative intent to place
  burden of proof on defendant).(FN2)

                                II.

       Defendant next argues that the trial court erred when it refused to
  hold a competency hearing.  The trial court has a duty to order a
  psychiatric examination and conduct a competency hearing if there is
  "reason to believe that [the defendant] may be incompetent to stand trial."
  State v. Lockwood, 160 Vt. 547, 554, 632 A.2d 655, 660 (1993); 13 V.S.A. §
  4817(b). Competency to stand trial depends on whether the defendant "has
  sufficient present ability to consult with his lawyer with a reasonable
  degree of rational understanding -- and whether he has a rational as well
  as factual understanding of the proceedings against him."  Dusky v. United
  States, 362 U.S. 402, 402 (1960) (per curiam).  The decision to hold a
  competency hearing is within the discretion of the trial court.  State v.
  Welch, 159 Vt. 272, 277, 617 A.2d 427, 430 (1992).

       Defendant contends that his decision to absent himself from the
  courtroom during the victim's testimony, his uncooperativeness with his
  attorney, and his refusal to speak with the mental health screener are
  "indicia of incompetence" that the trial judge ignored.  The psychiatric
  examiner found defendant to be of low-average intelligence and without a
  history of mental illness.  He also concluded that defendant understood the
  charges against him and the roles of the parties in the criminal
  proceeding, and was capable of assisting in the preparation of his defense. 
  Defendant stipulated to these findings and to his competency to stand
  trial.

 

  Approximately eight months later, the question of defendant's competency
  arose again when defendant requested that he be absent from the courtroom
  during the victim's testimony.  While possibly detrimental to his defense,
  his request was clearly within his rights.  See State v. Bradley, ___ Vt.
  ___, ___, 670 A.2d 811, 813 (1995).  And while defendant may have been
  uncooperative with defense counsel at that time, he later conferred with
  counsel regarding strategic decisions such as whether to testify.  None of
  defendant's acts would suggest that he lacked the capacity to participate
  in his defense, only the desire or, according to the mental health
  screener, the maturity to do so.  Drope v. Missouri, 420 U.S. 162, 171
  (1975) (defendant incompetent to stand trial if he lacks capacity to
  consult with counsel and prepare defense). Defendant's acts, combined with
  the competency findings, did not create reasonable grounds to doubt
  defendant's competency, and the trial court did not err by refusing to
  order an additional competency examination or by refusing to hold a
  competency hearing.

                               III.

       Defendant next argues that the administrative judge erred by denying
  defendant's motions for recusal of the trial judge.  He argues that the
  trial judge should have recused himself from trial because he had presided
  over defendant's change-of-plea hearing and from sentencing because he had
  viewed privileged information from defendant's competency evaluation that
  had been erroneously included in the presentence investigation report.

       A motion for recusal will not ordinarily be granted simply because the
  judge participated in earlier proceedings regarding the same case.  Klein
  v. Klein, 153 Vt. 551, 554, 572 A.2d 900, 902 (1990).  We presume the
  integrity and honesty of judges, and the moving party has the burden to
  show otherwise.  Id. at 554, 572 A.2d  at 903.  Here, the trial judge's
  participation in the change-of-plea hearing is insufficient, without an
  affirmative showing of bias or prejudice, to justify recusal from trial.

       The trial judge's exposure to defendant's privileged statements does
  not justify recusal from sentencing.  State v. Dupree, 151 Vt. 644, 644,
  559 A.2d 693, 693 (1989) (mem.) (we

 

  tolerate exposure to inadmissible evidence by judges in bench trials where
  we would not tolerate exposure to same evidence by jury).  Here, the trial
  judge struck defendant's privileged statements from the presentence
  investigation report and ordered the preparation of a new report by a
  probation officer unfamiliar with the case.  The new report was to be
  prepared without reference to defendant's privileged statements to the
  psychiatric examiner.  The trial judge also ordered all copies of the
  tainted presentence investigation report returned and sealed.  Given the
  trial judge's handling of this issue, we are convinced that no bias or
  prejudice to defendant resulted from the viewing of defendant's privileged
  statements.  Moreover, we see nothing in the trial judge's statements at
  sentencing that indicates that he relied on the redacted portions of the
  presentence investigation report.  The administrative judge did not abuse
  his discretion by denying both of defendant's motions for recusal.  Ball v.
  Melsur Corp., 161 Vt. 35, 40, 633 A.2d 705, 710 (1993) (discretionary
  ruling of administrative judge not disturbed unless record reveals no
  reasonable basis for decision).

                               IV.

       Defendant next contends that the trial court erred when it denied his
  motion to suppress evidence found during a search of the victim's car. 
  Specifically, he argues that the court's finding that the car was not on
  property leased by defendant's mother (FN3) is unsupported by the evidence,
  and therefore, the court's conclusions based on that finding are erroneous. 
  The court concluded that defendant lacked standing to assert a challenge to
  the search because his mother did not have a leasehold that extended to the
  land on which the victim's car was parked.  The court also concluded that,
  notwithstanding the extent of the leasehold, the land on which the victim's
  car was located constituted an open field under United States v. Dunn, 480 U.S. 294, 301 (1987).  Because defendant challenges only one of two
  alternate bases for the court's

 

  decision, he was not prejudiced by any possible error with respect to the
  challenged basis for the decision.

                               V.

       Defendant argues that the trial court erred by granting the motion in
  limine seeking exclusion of evidence of the victim's psychiatric
  hospitalization and that the exclusion of this evidence violated his
  Confrontation Clause rights.

       As evidence of specific instances of conduct, the proffered evidence
  must satisfy V.R.E. 608 to be admissible.  "Specific instances of the
  conduct of a witness . . . may, however, in the discretion of the court, if
  probative of truthfulness or untruthfulness, be inquired into on cross-
  examination of the witness . . . concerning his character for truthfulness
  or untruthfulness." V.R.E. 608(b).  Discretion lies with the court to weigh
  the probative value and prejudice to the witness of cross-examination on
  the prior conduct.  State v. French, 152 Vt. 72, 80, 564 A.2d 1058, 1062
  (1989).

       The victim's prior suicide attempts have minimal probative value on
  the issue of the witness's truthfulness.  Moreover, what little probative
  value exists is further diminished by the ten- and twenty-four-year lapses
  of time between the suicide attempts and the trial.  Because of its
  stigmatizing and embarrassing nature, the impeachment evidence here also
  has a significant potential to prejudice the complainant.  Reporter's
  Notes, V.R.E. 608 (rule seeks to prevent cross-examination of unnecessarily
  embarrassing scope).  The trial court did not abuse its discretion by
  excluding the evidence of the witness's prior suicide attempts, and because
  the court did not abuse its discretion, defendant's Confrontation Clause
  argument is without merit. French, 152 Vt. at 79, 564 A.2d  at 1062
  (threshold question for Confrontation Clause is whether court prohibited
  defendant from engaging in appropriate cross-examination).

                               VI.

       Defendant next argues that the trial court erred when it admitted
  defendant's knife, which was found by police in the victim's home.  He
  argues that the knife had no probative value

 

  because the issues of defendant's presence at the victim's home and his
  identity as her assailant were uncontested, and that he had stipulated to
  his identity.  The record indicates, however, that defendant did not
  stipulate to his presence in the victim's home or to his identity as her
  assailant; he stipulated merely that he was the person to whom a witness
  was referring in his testimony. The knife was therefore probative of his
  presence in the victim's home and his identity as her assailant.

       He also argues that the knife was prejudicial because "[b]oth the
  kidnapping and assault statutes require an intent to cause bodily injury
  and the coercive aspects of a knife wielding kidnapper are beyond dispute." 
  If anything, defendant's argument highlights the probative value of the
  knife with respect to his intent to inflict bodily injury upon the victim. 
  While evidence of his guilt presented by the State may be prejudicial to
  him, it is not necessarily unfairly prejudicial and thereby excluded under
  Rule 403.  The trial court did not abuse its discretion by admitting the
  knife into evidence.  Quirion v. Forcier, 161 Vt. 15, 21, 632 A.2d 365, 369
  (1993) (court has broad discretion in ruling on admissibility of evidence
  under Rule 403 and burden of showing abuse is heavy one).

                               VII.

       Defendant argues that he was denied due process because the
  information did not fully apprise him of the basis and nature of the charge
  such that he could prepare his defense.  See State v. Williams, 160 Vt.
  615, 616, 627 A.2d 1254, 1255 (1993) (mem.).  He asserts that, as a result
  of the penalty listed in the information, he thought that he would not need
  to prepare the affirmative defense of safe release in 13 V.S.A. § 2405(b). 
  Defendant has failed to demonstrate that he suffered any prejudice as a
  result of the State's failure to amend the information after defendant
  withdrew his plea.  Defense counsel litigated the affirmative defense of
  safe release and requested a jury instruction on the issue.  Moreover, the
  record contains numerous statements by defense counsel indicating that the
  defense knew the State sought life imprisonment.  Therefore, we find
  unpersuasive defendant's claim that he did not receive

 

  sufficient notice of the charge to prepare his defense.  See In re Stevens,
  146 Vt. 6, 9-10, 497 A.2d 744, 747 (1985) (where defense counsel dealt with
  case as one for aggravated assault at all stages of proceedings, defendant
  not prejudiced by failure of information to allege element of aggravated
  assault).

                               VIII.

       Finally, defendant argues that the trial court erred when it
  prohibited defense counsel from telling the jury in his closing argument
  that evidence not presented by the State was exculpatory.  In his closing
  argument, defense counsel pointed out the evidence that the State did not
  present.  He may properly point out the absence of more persuasive types of
  evidence and argue that the State has not proved its case beyond a
  reasonable doubt.  He may not, however, tell the jury that the absent
  evidence would have been exculpatory if presented.  State v. Blakeney, 137
  Vt. 495, 504, 408 A.2d 636, 641-42 (1979) (counsel must confine argument to
  evidence presented and inferences properly drawn from it).  Also, he may
  not encourage the jury to speculate about the State's motive for not
  pursuing or presenting such evidence.  State v. Emerson, 149 Vt. 171, 177,
  541 A.2d 466, 470 (1987) (improper for defendant to argue that State
  withheld exculpatory evidence without evidence supporting that argument). 
  The trial court did not err when it ruled that defense counsel's argument
  was improper.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


  ---------------------------------------------------------------------------
                                  Footnotes


FN1.  Kidnapping is punishable by a maximum sentence of life
  imprisonment . . . .  It is, however, an affirmative defense which reduces
  the penalty to imprisonment for not more than 30 years . . . that the
  defendant voluntarily caused the release of the victim alive in a safe
  place before arraignment without having caused serious bodily injury to the
  victim."  13 V.S.A. § 2405(b).


FN2.  Defendant contends that the trial court erred by failing to
  require the State to present evidence negating safe release to survive
  defense motions to dismiss for lack of prima facie case and for judgment of
  acquittal.  Defendant argues that safe release is an element of the State's
  prima facie case and, citing the Model Penal Code, argues that the
  Legislature did not intend safe release to be a defense.  We disagree
  because it is clear from the language of § 2405(b) that the Legislature
  intended safe release to be an affirmative defense.  See Vermont Dev.
  Credit Corp. v. Kitchel, 149 Vt. 421, 428, 544 A.2d 1165, 1169 (1988)
  (statute plain on its face is not subject to construction but must be
  enforced according to its express terms).


FN3.  The trial court, citing State v. Wood, 148 Vt. 479, 489, 536 A.2d 902, 908 (1987), considered defendant to have the same possessory
  interest in the leasehold as his mother because he lived with her at the
  time.