State v. Corliss (96-035); 168 Vt. 333; 721 A.2d 438
[Opinion Filed 6-Feb-1998]
[Motion for Reargument Denied 15-Sep-1998 and 25-Sep-1998]
SUPREME COURT DOCKET NO. 96-035
MAY TERM, 1998
State of Vermont } APPEALED FROM:
v. } District Court of Vermont,
} Unit No. 1, Windsor Circuit
Adam O. Corliss }
} DOCKET NO. 136-2-94Wrcr
In the above-entitled cause, the Clerk will enter:
Upon consideration of defendant's motion to reargue, the opinion
issued February 6, 1998, in this case is amended by deleting the last
sentence of the full paragraph on page 8 and the following paragraph, which
ends on page 9, and substituting the following:
Under the test enunciated in Geiger, a court should instruct a jury on
a lesser-related offense when: (1) the lesser offense is closely related
to that charged, (2) there is evidence of its commission, and (3)
defendant's theory of the case is consistent with the lesser-related
offense. See id. at 1304; accord Moore, 776 P.2d at 1239.
We do not reach the question of whether it is ever appropriate
to instruct the jury on a lesser-related offense because, even if we
applied a standard permitting such instruction, defendant in this case
would not be entitled to the instruction. This case does not satisfy the
three-prong Geiger test. There was no evidence of the offense of
compounding the felony presented at trial, nor was this offense
consistent with defendant's theory of the case.
The statute defendant relies upon requires that the person
having knowledge of the commission of a felony take money "upon
an agreement or understanding" to compound or conceal the felony.
13 V.S.A. § 8. "The agreement is essential" to the offense of
compounding the felony at common law or under the typical
compounding statute. 2 W. LaFave & A. Scott Jr., Substantive
Criminal Law § 6.9(c), at 176 (1986). In this case, defendant never
claimed any agreement or understanding that the money was received
as consideration for concealing the felony. Rather, he testified that he
did not realize that Durphy gave him money until after they had
parted company. Defendant's theory of the case and his testimony at
trial was that he concealed Durphy's identity because Durphy
threatened to kill defendant's girlfriend and her family. Defendant
testified repeatedly that he lied to the police because Durphy was
threatening his girlfriend.
Under defendant's theory, he committed no crime. He
concealed the felony under duress. If the jury had believed his
testimony, he would have been acquitted. Neither the defense theory
nor the evidence supported a charge for compounding the felony.
See, e.g., People v. Boyd, 212 Cal. Rptr. 873, 880 (Cal. Ct. App.
1985) (defendant's denial of any offense is completely inconsistent
with an instruction on the claimed lesser-related offense); Ewish v.
State, 871 P.2d 306, 311 (Nev. 1994) (defendant denies any
culpability; consequently, instruction on lesser-related offense is not
required). Accordingly, there was no error in refusing to give the jury
an instruction on this offense.
In all other respects, defendant's motion to reargue fails to identify
points of law or fact overlooked or misapprehended by this Court. The
motion is therefore denied.
BY THE COURT:
Jeffrey L. Amestoy, Chief Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
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
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit
Adam O. Corliss September Term, 1997
Walter M. Morris, Jr., J.
M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for Plaintiff-Appellee.
Michael Rose, St. Albans, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J. Defendant Adam Corliss appeals his first degree murder
conviction for the killing of Jennifer Little. He argues that the trial
court erred by (1) limiting the scope of certain testimony linking another
person to the murder, (2) denying defendant's request for a jury
instruction that it may convict on a lesser-related offense, and (3)
failing to follow statutory guidelines for sentencing in murder
convictions. We affirm.
On the night of February 4, 1994, Jennifer Little was repeatedly
stabbed in the front seat of her car in Springfield Vermont. She later
died in a nearby snowbank. The defendant and the victim knew each other
and were reportedly together that evening to purchase drugs from another
individual. Police found defendant's buck knife in the road near the
victim's body, and found defendant's footprints in the snow next to her.
The medical examiner in the case testified that the victim had sustained
nine stab wounds, of which three were made to the victim's hands as she
raised them in defense. Later that same evening, defendant purchased
marijuana with bills soaked in the victim's blood.
At trial defendant testified that another individual, Justin Durphy,
had committed the murder. He contended that Durphy had been in the front
seat of the car and had stabbed the victim while defendant sat in the back.
Defendant explained that he had lied to police about the details of the
murder and provided them with false leads because Durphy had threatened him
with harm if he did not do so. There was no physical evidence linking
Justin Durphy with the murder, and no testimony placed Justin Durphy with
the victim on the night of the murder, except that of defendant.
To support his theory that Justin Durphy had committed the murder,
defendant sought to have nine witnesses testify that Durphy had expressed a
desire to kill the victim or claimed to have killed her. The State filed a
motion in limine to exclude the testimony. The trial court permitted the
witnesses to testify about Durphy's admissions, but limited the scope of
three of the witnesses so that they would not disclose to the jury certain
factual circumstances in which Durphy's admissions were made.
Defendant requested from the court a lesser-related offense
instruction for compounding a felony. Defendant based the request on his
testimony that he had provided police with false information about the
killing because Justin Durphy threatened him with harm if he did not. When
the court denied the request, defendant waived his right to have the court
instruct the jury on any lesser-included offenses. The jury returned a
verdict of first degree murder and the court sentenced defendant to fifty
years to life imprisonment.
Defendant first challenges the trial court's decision to limit the
scope of testimony from certain defense witnesses whose testimony was
offered to establish that Durphy had committed the murder. Two witnesses
testified that, before the murder, they had heard Durphy express anger at
Jennifer Little and say he wanted to kill her. The trial court allowed
both of these witnesses to testify fully on these matters at trial. Seven
other witnesses testified that, after Jennifer Little was killed, Durphy
had claimed responsibility for the murder. The court allowed
each of them to testify but limited the scope of testimony of six of the
witnesses. Defendant takes issue with the trial court's rulings with
respect to three of the witnesses.
The first witness at issue, Christina Sanborn, testified in camera
that Durphy made a sexual advance toward her, rubbed against her, and
threatened to kill her as he had the victim if she did not do as he told.
Sanborn reported that Durphy had similarly threatened her on five or six
other occasions. Another witness, Tammy Sinclair, testified that after
Durphy had allegedly beaten a friend of hers, she confronted Durphy. She
alleged that Durphy threatened to kill her as he had Jennifer Little if she
didn't leave him alone. A third witness, police lieutenant Barbara
Higgins, testified that a thirteen year old girl had reported an identical
threat in the course of Durphy's alleged sexual assault of the girl.
The trial court found that the proffered testimony was relevant in
that it tended to show that Durphy, not defendant, had committed the
murder. The court found that, although the proffered testimony was
hearsay, each of the threatening statements in which Durphy claimed to have
killed the victim qualified as a hearsay exception because, at the time it
was uttered, the statement "so far tended to subject him to . . . criminal
liability . . . that a reasonable man in his position would not have made
the statement unless he believed it to be true." V.R.E. 804(b)(3).(FN1) The
court also considered the requirement that "[a] statement tending to expose
the declarant to criminal liability and offered to exculpate the accused is
not admissible unless corroborating circumstances indicate the
trustworthiness of the statement." Id. Satisfying this
condition requires defendant to establish that the other person had both
motive and opportunity to commit the crime. See State v. Gilman, 158 Vt.
210, 214, 608 A.2d 660, 663 (1992).
Defense counsel conceded that, apart from the hearsay testimony, the
only other evidence of Durphy's connection to the crime would come from
defendant's testimony.(FN2) The trial court concluded that the defense had
not technically met its burden to provide corroborating evidence of
Durphy's commission of the crime, and that the testimony was thus
excludable. The court nonetheless found the testimony credible and decided
to allow its admission. The court limited the scope of certain witness
testimony to exclude matters deemed irrelevant or otherwise inadmissible
under the rules of evidence.
Accordingly, the court ruled that Sanborn could testify to the jury
about Durphy's actual threats, but not mention Durphy's unwelcome sexual
advance along with which the threat was made. The court found the incident
irrelevant and remote in time to the murder of Jennifer Little and thus
excludable under V.R.E. 402. Moreover, the court reasoned, evidence of
Durphy's "bad act" of an unwelcome sexual advance amounted to inadmissible
character evidence. See V.R.E. 608 (character evidence of witness who is
not defendant or victim admitted only if probative of credibility; specific
incidents of witness conduct may not be proved by extrinsic evidence). The
court similarly limited Tammy Sinclair's testimony to Durphy's claims that
he murdered Jennifer Little, and excluded reference to Durphy's alleged
beating of their mutual friend. Lieutenant Higgins's testimony about the
thirteen year old girl's reported sexual assault by Durphy was limited by
the court to Durphy's threats, and not the alleged assault on the girl.
The trial court ruled that acts other than Durphy's threats -- to the
extent they were relevant -- were substantially outweighed by the danger of
unfair prejudice and confusion of the issues. See V.R.E. 403.
Defendant contends that the trial court's limitations on the scope of
testimony by these three witnesses unfairly "sanitized" the testimony.
Defendant claims that without the latitude to explore the full factual
context in which Durphy uttered the threats, he was deprived of his
constitutional rights to present exculpatory evidence and confront
witnesses against him. We find on these facts no error in the court's
A defendant has a right to present exculpatory evidence to aid his
defense and to confront witnesses brought against him. U.S. Const. amend.
VI; Vt. Const. ch. 1, art. 10. Defendant's proffered evidence, however,
must be relevant and otherwise admissible under the rules of evidence. See
Gilman, 158 Vt. at 214, 608 A.2d at 663; State v. Kelley, 131 Vt. 582, 588,
312 A.2d 906, 909 (1973). A defendant does not have the right to introduce
any and all evidence that he deems will aid his defense. See State v.
Patnaude, 140 Vt. 361, 369-70, 438 A.2d 402, 405 (1981) (defendant not
entitled to weigh his Confrontation clause interest against interests of
the State unless the evidence passes tests of logical and legal relevancy).
Thus, where evidence proffered by a defendant is irrelevant to the case
being tried, it may be properly excluded. See V.R.E. 402. Where evidence
is relevant, it may nonetheless be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice or other
considerations. See V.R.E. 403; State v. Larose, 150 Vt. 363, 368, 554 A.2d 227, 231 (1988). Evidence of the character of a witness is admissible
only to the extent it is relevant to the credibility of that witness. See
V.R.E. 608(b); State v. Blair, 155 Vt. 271, 275 n.1, 583 A.2d 591, 593 n.1
(1990) (evidence of witness's character is relevant, if at all, if it
relates solely to witness's character for truthfulness). Even then, the
witness's character for veracity or duplicity may be supported or impeached
only in the form of opinion or reputation. See V.R.E. 608(a). Specific
instances of conduct of a witness may be referenced only through cross
examination of the witness, and may not be introduced by extrinsic
evidence. See V.R.E. 608(b), Reporter's Notes (Rule prevents
cross-examination of prejudicial or unnecessarily embarrassing scope).
Resolving evidentiary questions where evidence is admissible for one
purpose but excludable for another
is given to the discretion of the trial court. See State v. Davis, 165 Vt.
240, 250, 683 A.2d 1, 7 (1996). We will not reverse a trial court's
evidentiary rulings unless there was an abuse of discretion. See State v.
Ives, 162 Vt. 131, 142, 648 A.2d 129, 135 (1994).
The trial court's decision to admit testimony about Durphy's claims to
have killed the victim, while limiting certain testimony about the
circumstances in which the statements were made, properly balanced the risk
of confusing issues and misleading the jury against the defendant's state
and federal constitutional rights to present exculpatory evidence. See
State v. Kennison, 149 Vt. 643, 651, 546 A.2d 190, 195 (1987).
Defendant next asserts that the trial court erred by denying his
request for a jury instruction on the lesser-related offense of
"compounding a felony."(FN3) The trial court first considered defendant's
request under the "elements test" for providing jury instruction on lesser-
included offenses. See State v. Williams, 154 Vt. 76, 82, 574 A.2d 1264,
1267 (1990) (jury instruction on lesser-included offense appropriate only
where each element of the lesser offense is a necessary element of the
charged offense). It found that the elements of compounding a felony do
not overlap with the elements of first degree murder. The trial court
denied defendant's request for the lesser-related offense instruction,
because, while statute and case law mandate a lesser-included offense
charge, neither the Legislature nor the Vermont courts have required such
an instruction. We find no error in the trial court's decision not to
instruct the jury on the lesser-related offense.
A defendant is entitled to have the court present to the jury issues
raised by the defense based on the evidence "that they might confront it,
consider it, and resolve its truth or falsity
by their verdict." State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58
(1955); see State v. Drown, 148 Vt. 311, 312, 532 A.2d 575, 576 (1987).
Consistent with this premise is the longstanding practice of affording a
criminal defendant with jury instructions on lesser-included offenses. See
State v. Bolio, 159 Vt. 250, 252, 617 A.2d 885, 886 (1992); State v. Bourn,
139 Vt. 14, 15, 421 A.2d 1281, 1281-82 (1980); State v. Long, 95 Vt. 485,
496, 115 A. 734, 739 (1922); 13 V.S.A. § 2310; V.R.Cr.P. 31(c). Further,
an offense will be treated as a lesser-included offense only if each of
its elements is "`always a necessary element' of the greater offense."
State v. Forbes, 147 Vt. 612, 617, 523 A.2d 1232, 1235 (1987) (quoting
Illinois v. Vitale, 447 U.S. 410, 419 (1980)). Where a jury is convinced
that a defendant has committed some crime, but is not fully convinced the
defendant is guilty of the charged offense, instruction on a
lesser-included offense "ensures that the jury will accord the defendant
the full benefit of the reasonable-doubt standard." Beck v. Alabama, 447 U.S. 625, 634 (1980).
This Court has never expressly addressed whether a trial court must,
upon request from the defendant, instruct the jury on a lesser-related
offense. See, e.g., State v. Kelley, 163 Vt. 325, 328, 664 A.2d 708, 710
(1995). The practice is followed in only a minority of jurisdictions.
See, e.g., People v. Geiger, 674 P.2d 1303, 1309, 1315-16 (Ca. 1984)
(confining lesser-offense instruction to strict confines of statutory
elements of charged offense described as "mechanical"; instruction on
lesser-related offense deemed more responsive to underlying purpose of
lesser-included offense doctrine); Moore v. State, 776 P.2d 1235, 1238
Those jurisdictions that have recognized lesser-related offense
instruction caution against the danger of misapplication of the rule. The
lesser-related offense must have an "`inherent' relationship between the
greater and lesser offenses," in order to avoid the situation where
"defense counsel might be tempted to press the jury for leniency by
requesting lesser-included offense instructions on every lesser crime that
could arguably be made out from any evidence that happened to be introduced
at trial." Geiger, 674 P.2d at 1308-09 (quoting United States v. Whitaker,
447 F.2d 314, 319 (D.C. Cir. 1971)). Under the test enunciated in Geiger,
a trial court should instruct a jury on a lesser-related offense when the
following conditions are satisfied: (1) the jury must have an evidentiary
basis for acquitting on the charged offense; (2) the lesser offense must be
closely related to the charged offense and have evidentiary support at
trial; (3) conviction on the lesser offense must be consistent with
defendant's theory of the case. See Id. at 1315-16; accord Moore, 776 P.2d
We do not reach the question of whether it is ever appropriate to
instruct the jury on a lesser-related offense because, even if we applied a
standard permitting such instruction, defendant in this case would not be
entitled to the instruction. Compounding a felony is not closely related
to murder in the first degree. Defendant asserts that the relationship
between the two offenses is established by the fact that defendant could be
convicted of either crime. We find defendant's logic unpersuasive. There
is, in fact, no commonality in the elements of the crimes of murder and
compounding a felony. The only connection between the two crimes is that
defendant's version of the evidence, if believed, could support a
conviction for compounding
a felony -- and, if disbelieved, could support a conviction for the
unrelated crime of first degree murder.(FN5)
Moreover, defendant's "all or nothing" strategy of declining to have
any lesser-included offenses instructed to the jury belies his contention
that his request for a lesser-related offense instruction was intended to
avoid confronting the trier of fact with no option other than conviction or
acquittal when the evidence shows that the defendant is guilty of some
crime but not necessarily the one charged. See Geiger, 674 P.2d at 1307
("`defendant has no legitimate interest in compelling an all or nothing
approach to the issue of guilt. Our courts are not gambling halls but
forums for the discovery of truth.'") (quoting People v. St. Martin, 463 P.2d 390, 394 (Cal. 1970)). The trial court committed no error in its
refusal to instruct on a lesser-related offense.
Defendant lastly claims error in the court's application of the
guidelines for sentencing individuals convicted of murder set forth in 13
V.S.A. § 2303. He maintains that the court erred by (1) finding the
murder of the victim "particularly severe, brutal or cruel," 13 V.S.A. §
2303(d)(5); (2) considering the common law sentencing factors of
deterrence, rehabilitation, and punishment; and (3) failing to "enter
specific written findings of fact, summarizing the offense and the
defendant's participation in it . . . [and] concerning aggravating and
mitigating factors." 13 V.S.A. § 2303(c). We address these three
arguments in turn.
Trial courts have wide discretion in imposing penalties and we will
not reverse unless the court strays from statutory limits or abuses its
discretion. See State v. Neale, 145 Vt. 423, 435, 491 A.2d 1025, 1033
(1985); State v. Cyr, 141 Vt. 355, 358, 449 A.2d 926, 927 (1982). Under the
statutory scheme for sentencing an individual convicted of murder, the
court is to
consider aggravating and mitigating factors as specifically set forth in
the statute, see 13 V.S.A. § 2303(d)(1)-(7), (e)(1)-(7), or as suggested by
the parties, see id. § 2303(d)(8), (e)(8). The court retains discretion to
apply or reject the factors and to interpret the meaning of individual
factors. See State v. Kelley, 163 Vt. 325, 330-31, 664 A.2d 708, 711-12
(1995). We will uphold the trial court's determination of aggravating and
mitigating factors unless it is clearly erroneous. See State v. Verrinder,
161 Vt. 250, 270, 637 A.2d 1382, 1394 (1993). Findings made by the court
will not be disturbed if they are supported by credible evidence, even
where there may be substantial evidence in the record to the contrary. See
State v. Harvey, 145 Vt. 654, 657, 497 A.2d 356, 357 (1985).
Defendant first argues that the court erred in finding the murder
"particularly severe, brutal, or cruel." 13 V.S.A. § 2303(d)(5). In so
finding, the trial court observed that defendant was a trusted friend of
the victim, and that he repeatedly stabbed her after he had inflicted the
fatal wound to her carotid artery. Moreover, the court observed that
several of the stabbings were to the victim's hands as she raised them up
in defense. We find no abuse of discretion in the court's conclusion drawn
from the evidence. See State v. Allain, No. 94-164 (Vt. July 19, 1995)
(mem.) (trial court did not abuse its discretion in finding murder
particularly brutal, severe, or cruel where attack was unprovoked, entirely
random, and involved a shotgun blast to the head at close range); State v.
Hurley, 876 S.W.2d 57, 69 (Tenn. 1993) (shotgun killing of victim at
point-blank range was heinous, atrocious and cruel).
Defendant next claims error in the court's consideration of
traditional common law factors beyond the specific aggravating and
mitigating factors set forth in the statute. The court reasoned that the
Legislature has not "deprived the courts of our common law sentencing
authority . . . [or] traditionally recognized sentencing objectives and the
requirement that the Court consider those."
We find no error in the court's consideration of traditional common
law factors such as punishment, deterrence, or rehabilitation. The
Legislature has not divested the court of its
traditional considerations in sentencing, but has rather provided guidance
for a process to consider factors pertaining particularly to the crime
committed and the individual convicted of that crime. See 13 V.S.A. §
Lastly, defendant contends that the court erred by failing to "enter
written findings of fact, summarizing the offense and the defendant's
participation in it . . . [and] specific written findings concerning
aggravating and mitigating factors." 13 V.S.A. § 2303(c). We agree that
the trial court should have entered its finding in writing, but find that
the error was harmless. See V.R.Cr.P 52(a) (errors that do not affect
substantial rights shall be disregarded). In this case the court observed
[t]he statute requires a finding relating to the Defendant's
involvement in the offense . . . . In consideration of the aggravating
circumstances and the mitigating circumstance[s], for purposes of movement
from the presumptive sentence given by the Legislature, we find and
conclude that the aggravating factors established by the evidence
substantially outweigh the mitigating factor. We also consider all
pertinent sentencing evidence and factors.
We find that the court's clear articulation of its findings and
conclusions on the record protected defendant's substantive rights. See
State v. Allen, 145 Vt. 593, 598, 496 A.2d 168, 170-71 (1985) (in probation
revocation hearing, record and transcript enable reviewing court to
determine basis of trial court's decision).
FOR THE COURT:
FN1. Under V.R.E. 804(b)(3), a hearsay statement is admissible only
if the declarant, in this case Durphy, is unavailable as a witness. While
the record is unclear on this point, the district court appears to have
determined that Durphy would invoke his privilege under the United States
and Vermont Constitutions to forego testifying against himself, and thereby
be "unavailable" as a witness. See V.R.E. 804(a)(1) (declarant considered
"unavailable" as a witness where he invokes a privilege from testifying
about the subject matter of his statement). At trial, Durphy testified
about some, but not all of the statements attributed to him. For those
statements on which Durphy testified, the district court could have
excluded the hearsay statements from other witnesses because the declarant
was available to testify.
FN2. At trial, a witness testified that she had learned from Durphy
that Jennifer Little owed Durphy money, thus arguably establishing a motive
for Durphy to kill Little. No evidence, however, was introduced to rebut
the statements of witnesses and Durphy who testified that he was elsewhere
on the night of the murder and did not have the opportunity to commit the
FN3. "A person having knowledge of the commission of a felony who
takes money, or a gratuity or reward, or an engagement therefor, upon an
agreement or understanding, expressed or implied, to compound or conceal
such felony or not to prosecute therefor, or not to give evidence thereof,
shall be imprisoned not more than ten years or fined not more than
$1,000.00, or both." 13 V.S.A. § 8.
FN4. See also State v. Gopher, 633 P.2d 1195, 1196-97 (Mont. 1981);
State v. Purnell, 601 A.2d 175, 181 (N.J. 1992) (all forms of homicide
rationally supported by the evidence, whether they be lesser-included or
alternative offenses, should be placed before the jury). The majority of
state jurisdictions, however, do not instruct the jury on lesser-related
offenses. See, e.g., State v. Fisher, 686 P.2d 750, 770 (Ariz. 1984);
State v. MacFarlane, 450 A.2d 374, 377 (Conn. 1982); State v. Laws, 661 S.W.2d 526, 530 (Mo. 1983); State v. Boone, 406 A.2d 113, 114 (N.H. 1979).
Federal courts do not provide instruction on lesser-related offenses
because Federal Rules of Criminal Procedure expressly limit instruction to
those lesser offenses "necessarily included" in the offense charged. Fed.
R. Crim. P. 31(c). See also Schmuck v. United States, 489 U.S. 705, 716
(1989) (instruction on lesser offense not given to jury unless elements of
lesser offense are a subset of elements of greater offense; where lesser
offense requires element not required for the greater, defendant not
entitled to instruction).
FN5. The State introduced evidence that defendant's theory of the
case was a fabrication developed with the assistance of a fellow prison
inmate. The inmate testified that he and defendant created a fictitious
version of events whereby Justin Durphy was portrayed as the murderer and
defendant as a bystander.