State v. Gundlah

State v. Gundlah  (96-052); 166 Vt. 518; 702 A.2d 52

[Filed 3-Jul-1997]

       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. 96-052


State of Vermont                                  Supreme Court

     v.                                           On Appeal from
                                                  District Court of Vermont,
                                                  Unit No. 1, Windham Circuit
Charles H. Gundlah
                                                  March Term, 1997


Robert Grussing III, J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

Michael Rose, St. Albans, for defendant-appellant


PRESENT:   Dooley, Morse and Johnson, JJ., and Allen, C.J. (Ret.) and
  Dier, Supr. J. (Ret.), Specially Assigned


       JOHNSON, J.   Defendant Charles Gundlah appeals four of eighteen
  convictions that resulted from a series of incidents culminating in the
  murder of a schoolteacher, Robin Colson. Defendant argues that (1) the
  trial court abused its discretion by denying his motion for a mistrial
  after a State's witness repeated the nontestifying accomplice's hearsay
  statement implicating defendant in the murder; (2) the court abused its
  discretion by admitting into evidence a videotape showing the exhumation of
  Colson's body; (3) the court erred by denying his motion for judgment of
  acquittal with respect to one unlawful mischief count and two petit larceny
  counts; and (4) the sentencing court erred in considering as an aggravating
  factor that defendant was in custody under sentence of imprisonment.  We
  vacate one of the unlawful mischief convictions, but affirm the remaining
  convictions, including the felony-murder conviction.

       On April 8, 1991, defendant and Christopher Bacon, who at the time
  were both inmates at the Woodstock Correctional Facility, escaped together
  from a prison work crew.  Over the next four days, the men allegedly broke
  into and vandalized several summer camps before going

 

  to Colson's home to steal her car.  Late on April 11 or early the next
  morning, the two men allegedly entered Robin Colson's home, bludgeoned and
  stabbed her to death, buried her in a shallow grave near her home, and then
  took her car.  Two days later, the men were apprehended in Rutland.

       Following his arrest, Bacon related his version of the circumstances
  surrounding Colson's death to police in a tape-recorded statement. 
  Defendant and Bacon were tried separately.  This Court reversed Bacon's
  first murder conviction, see State v. Bacon, 163 Vt. 279, 658 A.2d 54
  (1995), and he was reconvicted in January 1996 following a second trial. 
  Defendant was charged with felony murder, seven counts of burglary, six
  counts of petit larceny, one count of grand larceny, and four counts of
  unlawful mischief.  After a jury trial, he was found guilty of all charges
  except for one petit larceny count that had been dismissed.  Defendant
  received a sentence of sixty years to life for the felony-murder
  conviction, and lesser sentences for the other convictions, resulting in a
  cumulative sentence of seventy-two years to life.

                                     I.

       Defendant first argues that the trial court was obligated to declare a
  mistrial after a State's witness related Bacon's hearsay statement
  implicating defendant as an accomplice in Colson's murder.  We conclude
  that because defendant was not unduly prejudiced by the statement, the
  court did not abuse its discretion in denying defendant's motion for a
  mistrial.

       The challenged testimony occurred during the State's redirect
  examination of Detective Sergeant William Pettengill, one of the police
  officers who had investigated the murder.  While cross-examining
  Pettengill, defense counsel had sought to establish that Bacon had an
  affinity for knives.  On redirect, Pettengill stated that part of the basis
  for his belief that Bacon had an affinity for knives was a conversation he
  had with Bacon at the state police barracks on April 14, 1991.  When the
  State's attorney asked Pettengill whether Bacon told him during that
  conversation how he had come into possession of a scuba knife,(FN1) defense
  counsel objected.

 

  Following a bench conference, the court allowed the questioning to
  continue.

       After Pettengill testified that Bacon stated he received the knife
  from Gundlah, the following colloquy ensued:

     Q:  Did Mr. Bacon indicate to you why Charlie gave him the knife?

     A:  Yes.

     Q:  What did he tell you?

     A:  Because he chickened out while they were en route to Robin's
         house.

  At this point, defense counsel asked the trial court to declare a mistrial. 
  The State's attorney responded that Pettengill did not give the expected
  answer, and that a curative instruction should be sufficient to overcome
  any prejudice to defendant resulting from the statement.  The court
  immediately informed the jurors that they were to put the last response out
  of their minds and not consider it in any way in determining the issues in
  the case.

       On appeal, defendant argues that because he could not cross-examine
  Bacon, who had invoked the Fifth Amendment and refused to testify, and
  because the challenged statement was the only direct evidence that he and
  Bacon contemplated the use of force against Colson, the trial court had no
  choice but to grant his motion for a mistrial.  In support of this
  argument, defendant cites Bruton v. United States, 391 U.S. 123, 126
  (1968), where the Supreme Court held that the defendant was deprived of his
  constitutional right to confront and cross-examine witnesses when his
  nontestifying codefendant's confession naming him as a participant in the
  crime was admitted into evidence at their joint trial, even though the jury
  was instructed to consider the confession only against the codefendant.

       Bruton is not controlling.  Indeed, as the Court in Bruton stated:

     Not every admission of inadmissible hearsay or other evidence can
     be considered to be reversible error unavoidable through limiting
     instructions; instances occur in almost every trial where
     inadmissible evidence creeps in, usually inadvertently.  "A
     defendant is entitled to a fair trial but not a perfect one."  It is not
     unreasonable to conclude that in many such cases the jury can and
     will follow the trial judge's instructions to disregard such
     information.  Nevertheless, . . . there are some contexts in which

 

     the risk that the jury will not, or cannot, follow instructions is so
     great, and the consequences of failure so vital to the defendant,
     that the practical and human limitations of the jury system cannot
     be ignored.  Such a context is presented here, where the
     powerfully incriminating extrajudicial statements of a
     [nontestifying] codefendant, who stands accused side-by-side with
     the defendant, are deliberately spread before the jury in a joint
     trial.

  Id. at 135-36 (citations omitted).

       The instant case is more similar to the situation in United States v.
  Burroughs, 935 F.2d 292 (D.C. Cir. 1991), where the codefendant testified
  regarding a statement made by a third accomplice (who was tried separately)
  implicating the defendant in the commission of the charged offenses. 
  Although the trial court struck the response and admonished the jury to
  disregard it, the defendant claimed that Bruton required a mistrial.  The
  federal appeals court disagreed, stating:

     Mere recitation of Bruton's holding shows that it is inapposite.
     Bruton deals with joint trials in which a confession is properly
     admitted with respect to one defendant, but would be hearsay and
     thus inadmissible with respect to a codefendant.  The resulting
     violation of the Confrontation Clause cannot be avoided by
     instructing the jury to perform, in the words of Judge Learned
     Hand, the "mental gymnastic" of considering the confession only
     in regard to the confessor's guilt, while disregarding its implication
     of the codefendant.  The jury here did not have to attempt any
     such mental gymnastic for the quite apparent reason that [the
     codefendant's] unresponsive answer, which did not amount to  a
     confession by anyone, was not allowed into evidence for any
     purpose.

     The case is therefore not governed by Bruton's conclusive
     presumption that the jury will not, cannot, follow even the
     strongest instruction not to consider a codefendant's confession
     against the nontestifying defendant implicated by it.

  Id. at 294-95 (citations omitted); see United States v. Johnson, 769 F. Supp. 389, 397 (D.D.C. 1991) (government witness's hearsay testimony
  implicating defendant did not raise Bruton problem, which arises when
  codefendant's confession is admitted into evidence).

       The same reasoning applies here.  Thus, the real issue is whether
  defendant was entitled to a mistrial on the ground that the court's
  instruction was insufficient to cure any prejudice he might have suffered
  as the result of Detective Pettengill's hearsay statement.  See Burroughs,

 

  935 F.2d  at 295.  Unlike the situation in Bruton, in making this
  determination, neither the trial court nor this Court need presume that the
  jury would disregard the court's curative instruction. Id.  Rather, in
  ruling on a mistrial motion under circumstances such as these, the trial
  court should evaluate "the demeanor of the witness, the content of the
  stricken testimony, its likely impact, and the probable effect of
  cautionary instructions swiftly and firmly administered."  Id. Because
  these are necessarily matters of degree calling for the trial court's
  judgment, the court's ruling on a mistrial motion will be reversed only for
  an abuse of discretion.  Id.; see State v. Jones, 160 Vt. 440, 449-50, 631 A.2d 840, 847 (1993) (trial court has discretion in ruling on motion for
  mistrial, but should not grant motion unless moving party establishes
  prejudice; court's ruling will be upheld on appeal unless its discretion
  was either totally withheld or exercised on grounds clearly untenable or
  unreasonable).

       In determining the prejudicial impact of an incriminating hearsay
  statement, the probative force of the statement must be compared with the
  admissible evidence that supports the verdict. United States v. Eccleston,
  961 F.2d 955, 959 (D.C. Cir. 1992).  Here, the single challenged clause --
  "Because he chickened out while they were en route to Robin's house" --
  adds little to the State's case because it is ambiguous and the jury could
  have interpreted it in different ways. The parties on appeal assume that
  "he" refers to defendant, and presumably the jury made the same
  assumption.(FN2)  Defendant argues that even though the statement indicated
  that he (defendant) chickened out, it was prejudicial because it showed
  that the two men had contemplated using force against Colson.  But, as the
  State points out, the jury could have also considered the statement as
  indicating that defendant had backed away from any such plan. Moreover, the
  statement does not clearly and directly implicate defendant.  Defendant
  reads far

 

  too much into the statement in asserting that its import is that he and
  Bacon were going to Colson's house together to kill Colson, and that he was
  going to be the one to inflict the fatal wound, but that he chickened out
  and decided Bacon should do it instead.

       At most, from defendant's perspective, one of the possible inferences
  that can be drawn from the statement is that the two men had considered
  confronting Colson with a knife.  Cf. id. at 961 (because government's case
  was weak and there was nothing "inferential" in police officer's
  incriminating hearsay testimony directly implicating defendant in selling
  drugs, trial court abused its discretion in denying mistrial motion).  This
  is hardly the type of "powerfully incriminating" evidence that requires
  reversal, particularly in light of the court's immediate curative
  instruction and the substantial evidence presented by the State
  demonstrating the complicity between Bacon and defendant from the time they
  planned their escape up until the time they were apprehended.  Cf.
  Richardson v. Marsh, 481 U.S. 200, 208 (1987) (Bruton protects against
  "powerfully incriminating" effect of nontestifying accomplice pointing
  finger directly at defendant; by contrast, inferential incrimination can be
  cured by trial court's admonition).(FN3)

       The State's evidence, on the other hand, demonstrated that the two men
  planned to steal a car after their escape, that they broke into several
  camps and took various weapons, that they

 

  asked a nearby tree pruner about Colson's house just days before the murder
  and learned that Colson was a single woman living alone, that they wore
  gloves and had at least one weapon when they went to Colson's house, and
  that they cooperated in disposing of Colson's body. Further, the State
  elicited testimony that defendant handed Bacon a knife on the way to
  Colson's house.  Only the ambiguous single answer that followed that
  testimony is challenged here.  That answer did not require a mistrial.  Cf.
  Burroughs, 935 F.2d  at 295 (in view of relatively minor impact of
  codefendant's unresponsive and self-serving statement and stern nature of
  trial court's curative instruction, court acted well within its discretion
  in denying mistrial motion).

                                     II.

       Defendant also argues that the trial court abused its discretion by
  allowing the jury to view a short videotape showing the gravesite and the
  exhumation of Colson's body.  According to defendant, the potential
  prejudicial impact of the tape far outweighed any probative value it might
  have had.  The State offered the videotape, which was edited to keep out
  the most graphic views of the body, to demonstrate the joint undertaking
  necessary for defendant and Bacon to lift Colson's body and the large
  stones that covered the grave.  The trial court agreed that the videotape
  had probative value.

       On appeal, defendant argues that the videotape should have been
  excluded because, at most, it showed only that he and Bacon cooperated
  after the murder was committed, and not that he planned or participated in
  the murder itself.  We conclude that the videotape had probative value to
  show the continuing complicity between defendant and Bacon from the time
  they planned their escape until the time they were apprehended.  Further,
  the potential for prejudice was not great.  Nine slides showing Colson's
  wounds were also admitted into evidence for examination by the jury, and
  the court concluded that the brief part of the videotape showing the
  exhumation of Colson's body was not particularly gruesome.  Under the
  circumstances, the court did not abuse its discretion in concluding that
  the probative value of the videotape was not substantially outweighed by
  the danger of unfair prejudice.  See State v. Robinson, 158 Vt. 286, 291,
  611 A.2d 852, 855 (1992) (balancing test required by V.R.E. 403 is applied
  by trial court

 

  in its sound discretion, and reversal is required only for abuse of that
  discretion).

                                    III.

       Next, defendant argues that the State failed to present sufficient
  evidence to prove (1) an unlawful mischief charge based on damage done to a
  sofa and easy chair at the Payne camp and (2) two petit larceny charges
  based on the theft of the scuba knife from the Zoller camp and a handgun
  from the Gamberdella camp.  According to defendant, because both he and
  Bacon had the opportunity to commit those offenses and there was no
  evidence as to which one actually did so, the State could not prove that
  defendant committed the crimes.  Defendant further claims that the State
  could not prove that he was liable as an accomplice because there was no
  evidence that any of the three offenses were contemplated by him and Bacon
  under a preconceived plan.

       Given the evidence showing (1) defendant's and Bacon's concerted
  efforts in committing whatever crimes were necessary to facilitate their
  escape and avoid recapture, (2) defendant's presence at the Gamberdella
  camp, and (3) defendant's possession of another item stolen at the
  Gamberdella camp, the jury could have concluded beyond a reasonable doubt
  that defendant was at least an accomplice in stealing the handgun. 
  Further, defendant did not specifically argue in his motion for judgment of
  acquittal that the State failed to prove he stole the scuba knife.  In
  light of the evidence tying that weapon to the murder, we find no plain
  error in the court denying judgment of acquittal with respect to that
  charge.

       We agree with defendant, however, that there was insufficient evidence
  for the jury to conclude that he damaged, or was an accomplice in damaging,
  the sofa and chair at the Payne residence.  We vacate that conviction, but
  decline to remand the case for resentencing because it is absolutely clear
  from the sentencing court's remarks that the five-to-six-month sentence
  imposed for the damage to the Payne furniture, which was to run
  concurrently with the other burglary and misdemeanor sentences imposed for
  crimes not associated with the Colson residence, had no effect on the
  length of any of the other sentences imposed by the court.  See State v.
  Simpson, 160 Vt. 220, 225-26, 627 A.2d 346, 350 (1993) (when less than all
  of convictions in case are reversed on appeal, remand for resentencing is
  appropriate only when

 

  reversed convictions or sentences for reversed convictions appear to have
  influenced trial court's sentencing regarding affirmed convictions; court's
  imposition of separate concurrent sentences does not negate possibility of
  influence, but reviewing court cannot conclude, based solely on trial
  court's simultaneous imposition of separate concurrent sentences for
  multiple convictions, that sentence for one offense influenced sentence for
  another offense).

                                     IV.

       Finally, defendant argues that because he was neither physically
  restrained nor submissive to authority when the murder occurred, the
  sentencing court erred in finding as an aggravating factor that the murder
  was committed while defendant was "in custody under sentence of
  imprisonment."  See 13 V.S.A. § 2303(d)(1).  Defendant contends that §
  2303(d)(1) applies only to prisoners committing murder within the confines
  of prison walls, speculating that the Legislature intended to protect
  correctional officers and inmates from harm.

       We find no merit to this argument.(FN4)  Section 2303(d)(1) is intended
  as an additional deterrent to homicide by persons less likely to be
  deterred by the prospect of further confinement.  Model Penal Code §
  210.6(3)(a), commentary at 136 (Official Draft 1980).  The rationale behind
  this policy applies with equal if not greater force to escapees, who face
  an even longer term of imprisonment after apprehension and whose conduct
  demonstrates the need for greater deterrence.  Cf. People v. Davis, 794 P.2d 159, 181-82 (Colo. 1990) (legislative policy that is served by
  applying aggravating factor "under sentence of imprisonment" to
  incarcerated felons -- providing additional deterrence to persons with
  little to lose in committing criminal acts

 

  -- also applies to parolees who have shown by their previous conduct that
  additional deterrence may be required).

       Defendant argues that allowing § 2303(d)(1) to be applied against
  escaped prisoners renders the phrase "in custody" superfluous.  See State
  v. Beattie, 157 Vt. 162, 165, 596 A.2d 919, 921 (1991) (construction of
  statute that renders part of it surplusage is not favored).  There is no
  indication, however, that the Legislature inserted the words "in custody"
  to prevent courts from applying § 2303(d)(1) to escaped prisoners, and we
  will not apply a rule of statutory construction in a way that is
  inconsistent with legislative intent or that creates absurd or irrational
  results.  See State v. O'Neill, ___ Vt. ___, ___, 682 A.2d 943, 946 (1996)
  (rules of statutory construction may be relied upon where appropriate, but
  not where they lead to results inconsistent with legislative intent); In re
  S.B.L., 150 Vt. 294, 301, 553 A.2d 1078, 1083 (1988) (statutes must be
  interpreted to avoid irrational or unreasonable results); State v. Stevens,
  137 Vt. 473, 481-82, 408 A.2d 622, 627 (1979) (in construing statute, every
  word should be given effect if possible, but if words seem unnecessary or
  have no meaning within scheme of statute, they will be treated as
  surplusage and disregarded in order to effect legislative intent). The
  court did not err in considering as an aggravating factor that defendant
  was "in custody under sentence of imprisonment."

       The unlawful mischief conviction based on Count 8 is vacated; the
  remaining convictions are affirmed.


 FOR THE COURT:



 _______________________________________
 Associate Justice


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                                  Footnotes



FN1.  The State's medical examiner later testified that the scuba
  knife could have caused the wound resulting from the final fatal blow to
  Colson.

FN2.  This is a logical assumption in the context of the colloquy in
  which the hearsay statement was made.  But, in fact, the "he" probably
  referred to Bacon.  According to Bacon's statement to police following the
  murder, he and defendant had planned that he (Bacon) would enter Colson's
  house and brandish a metal bar to intimidate her into giving them the keys
  to her car, but that when he lost his nerve he gave the metal bar to
  defendant and took the knife that defendant had been carrying.  See State
  v. Bacon, 163 Vt. 279, 283-84, 658 A.2d 54, 58 (1995).

FN3.  The challenged statement in Richardson is very similar in nature
  to the challenged statement in the present case.  There, the state
  introduced the nontestifying codefendant's confession, which had been
  redacted to omit all indication that anyone other than the codefendant and
  a third accomplice (the alleged trigger man) had participated in the murder
  of the two victims.  The confession described a conversation that the
  accomplice and the codefendant had had as they drove to the victims' house,
  during which time a gun was displayed and the principal stated that he
  would have to kill the victims after the robbery.  The defendant's name had
  been redacted from the conversation, but her own testimony showed that she
  had been present in the back seat of the car when the conversation took
  place.  Even though the confession contained the only direct evidence
  demonstrating that the defendant intended to participate in the robbery
  knowing that murder was a foreseeable result, the Court concluded that this
  type of evidence did not fall within the Bruton rule because it
  incriminated the defendant only after being linked to other evidence in the
  case.  Richardson v. Marsh, 481 U.S. 200, 208 (1987).  According to the
  Court, if a jury has to link different pieces of evidence for the
  challenged evidence to be incriminating, then the court's instruction to
  disregard the challenged evidence would more likely dissuade the jury "from
  entering onto the path of inference in the first place."  Id.

FN4.  Taken to its logical extreme, this argument means that 13 V.S.A.
  § 2303(d)(1) could not be applied to a prisoner who killed a prison guard
  just outside the walls of the prison after escaping from confinement. 
  Under defendant's analysis, the prisoner would neither have submitted to
  authority nor been under physical restraint at the time of the murder.

       In State v. Turgeon, ___ Vt. ___, ___, 676 A.2d 339, 342-43 (1996), we
  held that because the defendant had neither submitted to the arresting
  officer's authority nor been physically restrained by the officer, he had
  never been "in custody" and thus could not be guilty of the crime of
  escape.  Obviously, that holding does not govern this case.  Here,
  defendant had been placed in lawful custody following conviction, and had
  not been released from custody at the time of his escape.