State v. Grega

Annotate this Case
State v. Grega  (96-106)  ; 168 Vt. 363; 721 A.2d 445

[Opinion Filed 10-Apr-1998]
[Amended on Motion for Reargument 7-Oct-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-106

                            SEPTEMBER TERM, 1998


State of Vermont                     }       APPEALED FROM:
                                     }
                                     }
     v.                              }       District Court of Vermont
                                     }       Unit No. 1, Windham Circuit
John Grega                           }
                                     }       DOCKET NO. 1526-12-94Wmcr


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

       On reargument, defendant contends that, under the Double Jeopardy
  Clause, we must vacate the conviction for aggravated sexual assault, not
  simply the sentence on the conviction.  We agree that the conviction for
  aggravated sexual assault cannot stand.  The United States Supreme Court
  rejected the contention that multiple convictions could stand to provide a
  backup conviction in the event that the conviction on the greater offense
  is reversed.  See Rutledge v. United States, 517 U.S. 292, 305-06 (1996). 
  Instead, the Court approved a procedure where courts have directed "entry
  of judgment for a lesser included offense when a conviction for a greater
  offense is reversed on grounds that affect only the greater offense."  Id.
  at 306.  In view of Rutledge, we vacate the conviction for aggravated
  sexual assault.  See United States v. Rosario, 111 F.3d 293, 301 (2d Cir.
  1997) (Rutledge disapproved previous practice in Second Circuit of entering
  concurrent convictions on lesser and greater offenses).

       Defendant's conviction for aggravated sexual assault is vacated.



     BY THE COURT:



     _______________________________________
     Ernest W. Gibson, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice

     _______________________________________
     Frederic W. Allen, Chief Justice  (Ret.)
     Specially Assigned

-------------------------------------------------------------------------
       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. 96-106


State of Vermont                             Supreme Court

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

John Grega                                   April Term, 1997


Theresa S. DiMauro, 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:  Gibson, Dooley, Morse and Johnson, JJ., and
          Allen, C.J. (Ret.), Specially Assigned


       JOHNSON, J.   Following a jury trial, defendant was convicted of
  aggravated murder, 13 V.S.A. § 2311(a)(8), and aggravated sexual assault,
  13 V.S.A. § 3253(a)(1), of Christine Grega, his wife.  On appeal, defendant
  challenges his convictions, arguing that the trial court erred by (1)
  denying defendant's request for production of the criminal records of the
  members of the jury pool; (2) seating one member of the jury, over
  defendant's objection; (3) denying defendant's motion for mistrial and
  change of venue, following a remark by a member of the jury pool; (4)
  denying defendant's motion to suppress evidence obtained by police during
  searches of the condominium in which the victim was murdered; (5) excluding
  certain evidence that according to defendant supports his claim that
  someone else murdered his wife; (6) refusing to grant immunity to a defense
  witness; (7) denying defendant's motion for judgment of acquittal; and (8)
  denying defendant's motion to preclude the imposition of sentence for his
  conviction of aggravated sexual assault.  Defendant also claims that the
  trial judge failed to 

 

  display a proper judicial demeanor and should have been disqualified.  We
  affirm both convictions and his mandatory sentence of life in prison
  without the possibility of parole for aggravated murder, but vacate
  defendant's sentence for aggravated sexual assault.

                                     I.

       Defendant, a resident of New York, drove to Vermont on September 10,
  1994, for a vacation with his wife and young son.  The family stayed in a
  condominium near Mount Snow that they had borrowed from a friend. 
  Defendant later told police that the couple had discussed divorcing, and
  that one reason for the trip was to get the marriage back on track. 
  According to defendant, the family spent their first two days in Vermont
  engaging in typical vacation activities. 

       On September 12, 1994, around 8:30 pm, a police officer responded to
  an emergency call reporting that a woman had fallen in a bathroom.  When
  the officer entered the Gregas' condominium, he found defendant in the
  bathroom straddling the victim's body.  Defendant was emotionally upset,
  calling out his wife's name, shaking her, and crying.  The victim was lying
  on her back on the floor of the bathroom, with her head near the door and
  her feet near the tub.  She was nude, but partially covered by a towel and
  blanket.  According to the officer, the victim's body was "purplish,
  bluish, gray" in color and extremely cold, which surprised him, because the
  bathroom heater was running and the bathroom was very hot.  The officer
  also noticed bruising on the victim's upper body.  The officer concluded
  from the victim's body temperature and his other observations that it was
  too late to attempt to resuscitate the victim.  A rescue worker who arrived
  a few minutes later did attempt CPR, unsuccessfully.   

       An autopsy of the victim revealed blunt trauma injuries to the head,
  face, neck, trunk, and extremities.  The neck area had suffered extensive
  internal and external injuries.  There were also multiple lacerations in
  the anal/rectal region.  The medical examiner concluded that the cause of
  death was asphyxia, and classified the death as a homicide.  A forensic
  pathologist called by the State testified that the anal injuries were
  caused by a foreign object about twice the

 

  size of a normal penis, such as a fist, pipe, or baseball bat, that was
  inserted in the rectum with a moderate to severe amount of force.

       Police searches of the crime scene and condominium unit revealed
  additional evidence.  The condominium was unusually clean for a crime scene
  and had apparently been wiped down.  There were no signs of a struggle or
  forced entry.  The washing machine was stopped mid-cycle, half-full of
  soapy water, and contained several towels and some clothing.  The clothing,
  which included a full set of women's clothes and a full set of men's
  clothes, matched the clothing worn by defendant and the victim in photos
  taken the day of the murder.  The pair of men's shorts was missing a button
  that was present when the photos were taken.  Investigators found money and
  a pair of keys in the pair of women's blue jeans.  A pair of women's
  underwear, a pair of men's shorts, and a towel found in the washer all
  tested positive for blood.  Forensic testing of the clothing and blood was
  hindered, however, because the clothing had been soaking in soapy water,
  which dissolved proteins.

       A search of the common trash receptacle for the condominium complex
  turned up a garbage bag identical to those found inside the condominium
  unit.  The bag contained beer cans, some empty and some full, one of which
  carried defendant's fingerprints.  The garbage also contained paper towels
  that appeared to be stained with blood, and a panty liner that tested
  positive for blood.A rescue worker discovered that the toilet in the
  upstairs bathroom of the condominium was stopped up.  The toilet eventually
  had to be broken to discover the source of the blockage.  It contained a
  wad of paper towels.  Investigators also found a piece of cardboard from a
  box of Marlboro cigarettes stuck to the inside of the toilet. Defendant
  spoke with police several times during the investigation.  According to
  defendant's statements the night his wife was killed, he left the
  condominium with his son in the late afternoon to give his wife a chance to
  relax.  He took his son to a nearby school playground, and then drove
  around looking for a place to eat.  They stopped at an ice cream stand, but
  it was closed.  After about an hour and a half, they returned to the
  condominium. 

 

  Defendant was not exactly sure what time they returned, but thought it was
  around 7:00 pm.  He recalled that it was getting dark and his son was
  sleeping.  The door to the condominium unit was unlocked, and he entered
  quietly, not wanting to disturb his wife if she was napping.  He left his
  son sleeping in the car.  He went downstairs to look for his wife and found
  her in the bathroom.  He could not remember whether his wife was partially
  out of the tub, or whether she was face down or face up.  He did remember
  that the tub was partially full, and that he pulled his wife out of the tub
  and laid her on the floor.  He tried to resuscitate her, and then ran next
  door to have the neighbors call an ambulance.  He brought his son over to
  the neighbors, and then returned to his wife.  At some point he covered his
  wife up with a blanket.

       Later that night, having learned of the victim's anal injuries, an
  officer questioned defendant about his sexual relations with his wife.  At
  first he stated that he and his wife had sex twice that morning; later in
  the same interview he stated that they had vaginal sex once in the morning
  and anal sex once that afternoon, before defendant left with his son. 
  Defendant commented on the large size of his penis, claiming that
  prostitutes had turned him away because of its size, and stated that his
  penis may have had blood on it after he withdrew from the anal sex.  He
  permitted the officers to examine his penis, and the officers observed no
  bruising and saw no blood on his penis or his underwear.  

       The police questioned defendant again the next evening.  When asked
  about the injuries to his wife's neck, defendant explained that he
  sometimes grasped his wife's neck during sex, and she would say "stop" if
  it was too rough.  He stated that he did this during sex on the day his
  wife died.  He also said that his wife's head injuries may have been caused
  by her hitting a wall or the bed during sex.  

       Defendant gave a final statement to the police the next month, in the
  presence of his attorneys.  His description of the timing of events changed
  somewhat, with defendant claiming that the episode of anal sex and his trip
  with his son occurred later in the day than he had originally stated.  At
  this point he also said that he did not have his hands around his wife's
  neck 

  

  while having sex with her, and that after sex his wife was in fine
  condition, not disabled or in pain, and had dressed again in her jeans and
  golf shirt.

       In December, 1994, defendant was charged with second-degree murder of
  his wife.  He pled not guilty.  The information was later amended to charge
  defendant with aggravated murder and aggravated sexual assault.  After a
  lengthy trial, a jury found defendant guilty on both counts.  The court
  sentenced him to life without parole on the aggravated murder charge, and
  fifty years to life on the aggravated-sexual-assault charge.  This appeal
  followed.

                                     II.
       We begin by addressing defendant's claims of error with respect to the
  jury selection process.  Defendant first argues that he was entitled to
  review the criminal records of potential jurors that were obtained by the
  State.  He relies on V.R.Cr.P. 16, which requires the State to disclose
  "material or information not protected from disclosure . . . that is
  necessary to the preparation of the defense."  The State refused to release
  the criminal record checks, and the court declined to order the State to do
  so.

       Courts in other jurisdictions have held that the defense should have
  the same access to criminal record checks of potential jurors that the
  State has, as a matter of fairness.  See, e.g., Tagala v. State, 812 P.2d 604, 612-13 (Alaska 1991) (collecting cases).  We need not reach this
  issue, however, because defendant has made no showing that he was
  prejudiced by the State's failure to disclose the results of the criminal
  record checks.  See State v. Jones, 160 Vt. 440, 446, 631 A.2d 840, 845
  (1993) ("To establish reversible error under V.R.Cr.P. 16, a defendant must
  show both a violation of the rule and resulting prejudice.").  Potential
  jurors were asked about their criminal records on the juror questionnaires,
  and defense counsel was free to inquire on the subject during voir dire. 
  Defendant does not claim that any of the jurors gave inaccurate or
  incomplete information, nor has he shown that the impanelled jury was
  biased in any way.  Next, defendant argues that the court erred by refusing
  to remove for cause a juror who was a patient of the physician who
  conducted the preliminary examination of the victim's body.

 

  Defendant relies on our decision in State v. Doleszny, 146 Vt. 621, 508 A.2d 693 (1986), where we held that a juror should be removed for cause
  where the juror "indicates an inclination to believe or disbelieve the
  testimony of someone he knows."  Id. at 622, 508 A.2d  at 694.  The juror in
  that case stated during voir dire that he was not certain he could be
  impartial, and that his prior knowledge of the witness might weigh heavily
  in the witness's favor.   

       Our holding in Doleszny does not apply here.  Unlike the juror in
  Doleszny, the juror here did not say that she would be more likely to
  believe the doctor because of her prior knowledge.  She did state that she
  respected the doctor, and would be upset if someone said that he did
  something wrong, perhaps enough to stop going to him.  She also stated,
  however, that she would not hold such a criticism against the State or the
  defense, but against the doctor himself.  When asked how she would react if
  his actions were in dispute, she explained that she would have to hear both
  sides and then make a decision.  Absent some evidence of bias on the part
  of the juror, we will not disturb the trial court's ruling.  See State v.
  Hohman, 138 Vt. 502, 511, 420 A.2d 852, 857-58 (1980), overruled on other
  grounds, Jones v. Shea, 148 Vt. 307, 308-09, 532 A.2d 571, 572 (1987)
  (whether juror entertains opinion that is truly fixed bias is question for
  sound discretion of trial judge; absent indication of bias in record, we
  will not upset decision of trial judge who observed demeanor of juror
  during voir dire).  For the same reasons, we reject defendant's claim that
  the trial court should have granted defendant additional peremptory
  challenges to exercise against this and one additional juror.

       Defendant's last argument regarding the jury involves one potential
  juror's comment during voir dire that "I believe [the defendant is] guilty
  and they ought to hang him anyway."  Other jurors were present at the time
  and heard the comment.  Defendant claims that the comment tainted the jury
  pool and prevented defendant from receiving a fair trial.  He argues that
  the court should have granted his motions for mistrial and change of venue.
  In general, the decision to grant or deny a new trial is entrusted to the
  discretion of the trial court, and will not be disturbed on appeal absent a
  showing that the court abused or

 

  withheld its discretion.  In re McKeen, ___ Vt. ___, ___, 685 A.2d 1090,
  1092 (1996).  In analogous circumstances, we recently emphasized that the
  trial judge is in the best position to determine whether a jury has been
  tainted, and "[c]onsequently, every reasonable presumption in its favor is
  accorded to the ruling below."  Id. at ___, 685 A.2d  at 1093.  We apply a
  similarly deferential standard to a trial court's ruling on a motion for
  change of venue.  State v. Chenette, 151 Vt. 237, 252, 560 A.2d 365, 375
  (1989).

       Defendant has not shown that the trial court abused its discretion in
  denying his motions for mistrial and change of venue.  The judge cautioned
  the jury pool that the comment was inappropriate, and emphasized that
  defendant was presumed innocent of the charges against him.  She then
  questioned each juror who heard the comment, asking whether the juror would
  be able to ignore the comment in making a decision.  The record is devoid
  of any evidence that this isolated comment made weeks before the jury began
  deliberations affected the jury's ability to make a fair and impartial
  decision.  We therefore see no ground for disturbing the trial court's
  denial of the motion for mistrial.  See Evans v. Young, 854 F.2d 1081, 1084
  (7th Cir. 1988) (although several jurors overheard remark of passerby that
  "we ought to hang him," new trial not required because voir dire indicated
  no prejudice and court gave curative instruction); United States v. Ortiz,
  603 F.2d 76, 80 (9th Cir. 1979), cert. denied, 444 U.S. 1020 (1980)
  (reversal not required where prospective juror remarked concerning heroin
  dealers that "[i]f I had my way, I would hang them if they were guilty");
  State v. Brown, 434 So. 2d 1166, 1168 (La. Ct. App. 1983) (where prospective
  juror who stated, "What tree are we going to hang him on?" was chastised
  and removed for cause, and remaining jurors were instructed to disregard
  remark, no error in denial of mistrial).  

       Nor do we accept defendant's claim that the prospective juror's
  comment reflected community feeling so biased against him that he was
  unable to receive a fair trial without a change of venue.  See V.R.Cr.P.
  21(a) (request for change of venue should be granted where court "is
  satisfied that there exists in county or unit where the prosecution is
  pending so great

 

  a prejudice against the defendant that he cannot obtain a fair and
  impartial trial there").  Defendant presented no evidence of this
  widespread bias, and again, the record of the jury voir dire reflects no
  bias or prejudice against defendant on the part of the jury members.  We
  conclude that the court acted well within its discretion in denying the
  motion for change of venue.  Cf. State v. Winters, 136 Vt. 469, 470-71, 392 A.2d 429, 430 (1978) (trial court's denial of motion for change of venue
  sustained where only evidence in support of motion were two newspaper
  accounts referring to defendant and others as "escapees"). 

                                    III.

       Over the days following the victim's death, police conducted a number
  of searches of the condominium.  Defendant maintains that most of the
  searches were illegal.  He argues that the trial court should have granted
  his motion to suppress the fruits of those searches.  

       Before considering defendant's claims, we set out in more detail the
  circumstances surrounding the contested searches.  On September 13, the day
  after the murder, an officer met with defendant to seek his consent to
  search the condominium and the car.  The officer filled out a consent form
  and read it to defendant, who signed it willingly.  Defendant did not limit
  his consent or withdraw consent at any time.  On the same day, police
  applied for and received a warrant to search the condominium and the car. 
  Late that night, defendant left Vermont and returned to Long Island. 

       The police executed the warrant on September 13, and seized a number
  of items from the condominium and the car.  Several investigators visited
  the unit the next day, staying about an hour.  They did not seize any
  items, but walked around the condominium, checked the mattresses for blood
  stains, and tested the operation of the bathtub.  Two officers returned on
  September 15, to check the sewer line for foreign objects.  The officers
  also looked through trash bags in the common trash receptacle, looking for
  clothing worn by the victim in photographs taken during the Gregas' stay in
  Vermont.  The officers found other items in the

 

  trash bags, but no clothing.  They then searched the condominium and seized
  two articles of women's clothing.

       On September 19, police sought and received a second warrant to search
  the condominium.  The affidavit in support of that warrant referred to the
  contents of the trash bags, as well as many other details uncovered during
  the investigation.  Upon execution of that warrant, police seized
  additional pieces of evidence, primarily clothing.

       Defendant does not contest that the initial search on September 13 was
  permissible, based both on his consent and on the search warrant.  He
  argues, however, that the subsequent warrantless searches on September 14
  and 15 exceeded the scope of his consent.  See State v. Connolly, 133 Vt.
  565, 570-71, 350 A.2d 364, 368 (1975) (scope of permission to search may be
  limited, and exceeding such scope does not differ in principle from search
  without permission).  He further argues that once police obtained the first
  warrant, they could no longer rely on his consent as authorization for
  subsequent searches.

       Based on the circumstances of this case, we agree with the trial court
  that the September 14 and 15 searches did not exceed the scope of
  defendant's consent.  As a preliminary matter, we reject defendant's claim
  that once a search warrant issued, police could no longer rely on
  defendant's consent.  If police choose to obtain both a valid search
  warrant and proper consent for a search, then they have the benefit of two
  legal bases for a search.  Without some evidence that defendant withdrew
  his consent, the mere fact that police obtained a warrant does not
  automatically negate defendant's consent.  See State v. Brown, 293 S.E.2d 569, 582 (N.C. 1982) (fact that police obtained search warrant did not
  negate defendant's consent to search). 

       The case on which defendant relies, State v. Brochu, 237 A.2d 418 (Me.
  1967), does not hold otherwise.  There, police arrived at a home with a
  search warrant and obtained permission to enter and search.  The court
  reasoned that, because the occupant of the home had no choice but to
  acquiesce, her consent had no independent significance.  Id. at 422.  Here,
  defendant gave

 

  his consent freely, before the warrant issued.  That the police decided to
  cover all bases, so to speak, by also obtaining a search warrant does not
  affect the validity of defendant's consent.

       Defendant also relies on Brochu for the proposition that his consent
  expired once he became a suspect in his wife's death.  Again, the facts of
  Brochu are not analogous to the facts of this case.  In Brochu, police
  searched the defendant's home with his consent as part of the investigation
  of his wife's death.  A few hours later, based on new evidence, the police
  arrested the defendant for the murder.  The court held that the defendant's
  consent did not extend to a subsequent search the next day, after defendant
  was arrested.  Id. at 421.  In this case, defendant was neither arrested
  nor charged at the time of the contested searches.  See State v. Koucoules,
  343 A.2d 860, 871 (Me. 1974) (supervening factor of arrest controlled
  decision in Brochu, not mere lapse of time between permission and actions
  of police).  The fact that he may have been under suspicion, standing
  alone, did not change defendant's status enough to undercut his consent. 
  See id. at 871 (noting that defendant's ostensible role as wife assisting
  in solution of husband's death had not changed from time she gave
  permission for initial search to time of subsequent search).  Indeed, it is
  likely that defendant was under suspicion even at the time he gave his
  consent.    

       We conclude that under these circumstances, the police did not exceed
  the scope of defendant's consent by continuing their search on two
  subsequent days.  Defendant left Vermont the same day he signed the consent
  form, without revoking his consent.  He did not indicate, by word or
  action, that his consent expired at the end of that day, or was in some
  other way restricted.  See Connolly, 133 Vt. at 570, 350 A.2d  at 368 (where
  police obtained permission to search house to look for person, looking in
  refrigerator exceeded scope of consent); cf. People v. Jackson, 373 N.E.2d 729, 732 (Ill. App. Ct. 1978) (program counselor's consent to search of
  defendant's room clearly restricted to single search when she afterwards
  locked door and retained key); State v. Jones, 591 P.2d 796, 799 (Wash. Ct.
  App. 1979) (invitation to examine television set not consent to later
  search of entire apartment).  Finally, we note that the searches

 

  were close together in time, and part of a continuous criminal
  investigation into Christine Grega's death.  On these facts, the police
  entry and search of the condominium on three consecutive days was within
  the scope of defendant's consent.  See Ferguson v. Caldwell, 213 S.E.2d 855, 859 (Ga. 1975) (consent to search applied to second search that was
  conducted for same purpose within brief, reasonable period of time, where
  there was no evidence that defendant ever withdrew or limited consent).

                                     IV.

       We now turn to defendant's claim that the trial court improperly
  excluded evidence that, according to defendant, supported his theory that
  another person murdered his wife.   At trial, defendant tried to show that
  two other men, Bryant Comi and Michael Carpenter, may have been responsible
  for raping and murdering his wife.  The two men were working as painters in
  the condominium complex on the day of the murder.  Both were incarcerated
  for other offenses at the time of the trial.

       As both Comi and Carpenter were called as witnesses at trial, along
  with Carpenter's wife, some evidence about the two men and their activities
  on the day of the murder did come before the jury.  Carpenter first stated
  that he currently resided at the state correctional facility in St.
  Alban's.  He then explained that he had been working at the condominium
  complex with Comi the day of the murder.  He admitted that he had given
  police an incorrect address when he was interviewed the day after the
  murder.  He also admitted that he may have been smoking Marlboro cigarettes
  the day of the murder.  He denied murdering or raping the victim. 
  Carpenter's wife, Daisy Carpenter, testified that Carpenter came home late
  on the evening of September 12, around 8:00 or 8:30 pm.  This contradicted
  Carpenter's testimony that he arrived home no later than 7:30 pm.

       Comi also testified that he currently resided in a correctional
  facility.  He admitted that he made up an address that he gave police when
  he was questioned.  He denied sexually assaulting or killing the victim,
  and specifically denied telling a former girlfriend that he and

 

  Carpenter had broken into a woman's home and choked her.  He admitted,
  however, that he may have joked about sexually assaulting a woman in the
  condominium unit.  He further admitted that he might have joked with
  Carpenter about killing a woman, in his girlfriend's presence.  His
  testimony on this point was inconsistent, however; he later stated that he
  never said that he had killed a woman.  Comi denied smoking Marlboro
  cigarettes but admitted that at the time in question, he typically bought
  Marlboros for his girlfriend.

       Defendant argues, however, that he was unable to fully pursue his
  theory because the trial court excluded other evidence that would have
  pointed to Comi and Carpenter as the perpetrators.  These evidentiary
  issues were largely resolved by the court prior to trial, when it granted
  the State's motion to exclude certain evidence relating to Comi and
  Carpenter's alleged sexual practices and claimed history of assaults,
  threatening behavior, and theft.  Defendant argues that this ruling,
  together with the court's subsequent exclusion of the two men's criminal
  records, exclusion of a hearsay statement by Comi in which he allegedly
  claimed responsibility for the crime, and refusal to grant immunity to a
  defense witness, denied defendant the right to present a defense.  

       Defendant is correct that as part of his defense he is permitted to
  introduce evidence implicating others in the crimes for which he is
  accused.  Such evidence, however, must conform to the rules of evidence,
  and may be excluded when the danger of unfair prejudice or confusion
  substantially outweighs its probative value.  See State v. Gilman, 158 Vt.
  210, 214, 608 A.2d 660, 663 (1992) (defendant entitled to call witnesses
  and present evidence on his behalf, but evidence must be otherwise
  admissible); see also V.R.E. 403 (relevant evidence may be excluded if
  probative value substantially outweighed by danger of unfair prejudice). 
  We have previously stated the test for relevance of such evidence:
  "evidence tending to show a third party's involvement in a crime should be
  admitted `as long as motive and opportunity have been shown and . . . there
  is also some evidence to directly connect [the] third person to the crime
  charged.'"  Gilman, 158 Vt. at 214, 608 A.2d  at 663 (quoting State v.
  Denny, 357 N.W.2d 12,

 

  17 (Wis. Ct. App. 1984)); see generally D. McCord, `But Perry Mason Made It
  Look So Easy!': The Admissibility of Evidence Offered By a Criminal
  Defendant to Suggest That Someone Else Is Guilty, 63 Tenn. L. Rev. 917
  (1996) (discussing "direct connection" standard for alleged
  alternative-perpetrator evidence).

       We first note that some of the evidence that defendant claimed would
  "directly connect" Comi and Carpenter to the crime was rejected by the
  court because the actual evidence did not support the allegations made by
  defense counsel.  Defendant claimed that one of Comi's girlfriends would
  testify that Comi repeatedly attempted to force her to have anal sex, and
  threatened to kill her if she did not comply with his demands.  In fact, in
  her deposition the woman recounted one request by Comi for anal
  intercourse, unaccompanied by violence, force or compulsion.  She
  acknowledged that Comi had threatened to kill her, but stated that those
  threats were based on the possibility of her cheating on him or leaving
  him.  Defendant claimed that another girlfriend of Comi's would confirm his
  propensity for anal intercourse.  Defendant could provide no evidence to
  support this claim, however, because the woman denied that she and Comi
  engaged in anal intercourse. 

       Moreover, although defendant claims that the trial court "quashed" his
  right to present a defense, in fact much of the evidence he sought to
  present was simply inadmissible.  For example, several statements that the
  defense sought to introduce were properly excluded by the court as
  inadmissible hearsay.  The first is Bryant Comi's alleged statement to his
  girlfriend that he and Carpenter broke into a woman's house near Mt. Snow
  and strangled her.  Defendant was permitted to ask Comi about this
  statement.  The court, however, properly excluded testimony on the issue
  from Comi's girlfriend's social worker as hearsay not within any exception. 
  See V.R.E. 804.  The same is true of Comi's alleged statement to a State
  investigator that he may have joked about the killing.  The statements do
  not fall under V.R.E. 804(b)(3), the exception for statements against
  interest, because Comi was available as a witness and indeed, testified at

 

  trial.  Moreover, defendant did not show that "corroborating circumstances
  clearly indicate[d] the trustworthiness of the statement," as required by
  Rule 804(b)(3).

       Defendant similarly sought to introduce, through the testimony of one
  of Comi's former girlfriends, alleged statements by Comi in which he
  discussed his involvement in two other murders.  Defendant also offered
  testimony from Daisy Carpenter relating a comment in which Comi bragged
  about his girlfriend walking like "she has a corn cob up her ass,"
  presumably a reference to anal sexual intercourse.  Again, both of these
  statements were hearsay not falling within any exception, and were properly
  excluded by the court.

       Much of the evidence defendant sought to introduce about Comi and
  Carpenter was of the sort generally labelled "propensity evidence" -- that
  is, evidence offered to show that because Comi and Carpenter had a history
  of violent and criminal activity, they were probably involved in Mrs.
  Grega's murder.  Such evidence is barred by V.R.E. 404(a), which states
  that "[e]vidence of a person's character or a trait of his character is not
  admissible for the purpose of proving that he acted in conformity therewith
  on a particular occasion."  The rule further provides that "[e]vidence of
  other crimes, wrongs, or acts is not admissible to prove the character of a
  person in order to show that he acted in conformity therewith."  V.R.E.
  404(b). 

       Defendant argues that the proffered evidence is admissible, however,
  because it tends to prove identity.  See V.R.E. 404(b) (propensity evidence
  may be admissible for other purposes, including proof of identity). 
  Specifically, defendant argues that Comi's inclination for anal
  intercourse, and his history of violent behavior are together so
  distinctive as to constitute Comi's criminal signature.  See State v.
  Bruyette, 158 Vt. 21, 29-30, 604 A.2d 1270, 1273-74 (1992) (in prosecution
  for sexual assault, evidence that defendant engaged in same distinctive
  sexual conduct with his girlfriend that he forced upon victim admissible to
  show identity).  Defendant's proffer was quite different from the
  substantial, detailed evidence of specific sexual acts, words and phrases,
  role-playing, bondage, illegal drug use during sex, and sexual fantasies of
  the defendant that was admitted in Bruyette.  See id. at 25, 604 A.2d  at
  1271-72.  At best, defendant could show (1) that Comi occasionally engaged
  in or sought to engage in anal

 

  intercourse; and (2) that on a prior occasion, Comi had grabbed his
  girlfriend by the windpipe and squeezed hard enough to cut off her air and
  leave finger marks on her throat.  The latter incident did not occur in the
  context of sexual activity.  This evidence is not nearly strong enough or
  distinctive enough to show that forced anal intercourse with an object
  accompanied by choking constituted Comi's "signature."  Id. at 27, 604 A.2d 
  at 1272-73 (when prior-act evidence is offered to show identity, test for
  relevance is demanding; pattern and characteristics of prior acts must be
  so distinctive as to constitute defendant's signature).

       Defendant further claims that the court's exclusion of character
  evidence about Comi and Carpenter violated his rights under the Sixth
  Amendment to the United States Constitution and Article 10 of the Vermont
  Constitution.  One commentator has argued that strict application of Rule
  404 and other rules of evidence may impair the right of a defendant to
  present a defense, and suggested that courts should give defendants some
  leeway in presenting, for example, propensity evidence that may point to
  another person as the perpetrator of the crime.  See McCord, supra, 63
  Tenn. L. Rev. at 977-79, 985-86.  Assuming exclusion of evidence that is
  inadmissible under the Rules of Evidence could in some circumstances impair
  a defendant's right to present a defense, that did not happen here.  Much
  of the evidence that defendant sought to introduce was weak, and often
  entirely unrelated to the facts of Mrs. Grega's death.  Such is the case,
  for example, with evidence that allegedly showed that Comi and Carpenter
  had a tendency to steal.  Defendant sought to introduce testimony from a
  supervisor at the condominium development about a pair of hiking boots that
  had disappeared from a unit that was being painted.  The supervisor
  mentioned this to Comi, and told him to let the crew know that if the boots
  reappeared, the incident would be forgotten.  The boots did reappear a few
  hours later.  There was no direct evidence that either Comi or Carpenter
  actually stole the boots.  Moreover, nothing was stolen from the Gregas'
  condominium, so there is no reason why evidence tending to show that the
  two men were thieves would be relevant. 

 

       Defendant paints a picture of a compelling defense pointing to Comi
  and Carpenter as the actual perpetrators, and faults the court for
  excluding persuasive evidence that would have created a reasonable doubt as
  to his guilt.  In fact, as the court recognized, much of this story falls
  apart when defendant's concrete evidence is examined.  Defendant
  established no direct link between the two men and the crime of which he
  was accused.  Instead, as the court noted, he merely gathered together "a
  number of remote acts, unsubstantiated statements, and unconnected
  activities or proclivities" in an unsuccessful attempt to implicate Comi
  and Carpenter.  We conclude that the court did not abuse its discretion in
  granting the State's motion in limine and excluding the evidence discussed
  above.  

       Defendant's other evidentiary claims are also without merit. 
  Defendant has not shown that the court abused its discretion in barring his
  use of Comi and Carpenter's criminal records as impeachment evidence.(FN1) 
  See V.R.E. 609(a)(2) (witness may be impeached with evidence of felony
  conviction, where court determines that probative value substantially
  outweighs prejudicial effect).  During his cross-examination, defense
  counsel attempted to impeach Carpenter with his criminal record.  The court
  correctly sustained the State's objection, because defense counsel had not
  given notice of his intent to do so.  See V.R.Cr.P. 26(c) (at least seven
  days before trial, party intending to offer evidence of criminal offenses
  to impeach witness must furnish to other parties written statement of acts
  or offenses it intends to offer); cf. State v. Edwards, 153 Vt. 649, 649,
  569 A.2d 1075, 1076 (1989) (in appropriate circumstances, exclusion of
  witnesses as discovery sanction does not offend defendant's Sixth Amendment
  rights).  Defense counsel then filed late notice of his intent to use prior
  convictions to impeach Comi.  The court acted within its discretion in
  barring the use of this evidence, on the grounds that (1) the probative
  value of Comi's theft, burglary, and battery convictions did not

 

  substantially outweigh their prejudicial effect, see V.R.E. 609(a)(2), and
  (2) defense counsel's failure to comply with the notice requirements of
  V.R.Cr.P. 26(c) required exclusion of Comi's forgery convictions.

       Finally, defendant argues that the court should have granted immunity
  to a prospective defense witness, a girlfriend of Comi's.  He maintains
  that the court had inherent judicial authority to grant immunity to protect
  his right to present exculpatory evidence.  Cf. State v. Hamlin, 146 Vt.
  97, 108, 499 A.2d 45, 53 (1985) (declining to consider whether court has
  authority to grant immunity to defense witness in certain circumstances). 
  Leaving this issue aside, we agree with the State that the immunity
  question is not properly raised in this case.  As defense counsel did not
  call the witness, she did not invoke her right against self-incrimination
  on the stand, in response to specific questions.  See State v. Couture, 146
  Vt. 268, 275, 502 A.2d 846, 851 (1985) (witness may only assert privilege
  against self-incrimination regarding specific incriminating answers).  The
  trial court thus did not have the opportunity to determine the scope of the
  privilege on a question-by-question basis.  See id. at 275-76, 502 A.2d  at
  851 (court should exercise discretion in limiting assertion of privilege to
  questions raising a real danger of injurious disclosure; reversal of
  conviction not required where court did not have opportunity to
  "understandingly pass" on immunity question).  

                                     V.

       Having rejected defendant's procedural arguments, we now turn to his
  substantive claim: that the evidence presented at trial was insufficient to
  support his conviction.  He argues that the trial court erred by denying
  his motion for judgment of acquittal pursuant to V.R.Cr.P. 29.  Relying on
  our decision in State v. Durenleau, 163 Vt. 8, 652 A.2d 981 (1994),
  defendant maintains that the evidence presented by the State must be deemed
  insufficient, because it amounted to nothing more than suspicion and
  conjecture.  

       In reviewing a denial of a motion for acquittal, we look at the
  evidence presented by the State, viewing it in the light most favorable to
  the prosecution and excluding any modifying

 

  evidence, and determine whether that evidence sufficiently and fairly
  supports a finding of guilt beyond a reasonable doubt.  See id. at 10, 652 A.2d  at 982.  As we explained in Durenleau, "The evidence must be examined
  both for its quality and strength; evidence `that gives "rise to mere
  suspicion of guilt, or [leaves] guilt uncertain or dependent upon
  conjecture" is insufficient.'"  Id. (quoting State v. Robar, 157 Vt. 387,
  391, 601 A.2d 1376, 1378 (1991) (quoting State v. Partlow, 143 Vt. 33, 37,
  460 A.2d 454, 456 (1983))).

       Defendant attacks the State's case against him, arguing that each
  piece of circumstantial evidence may be explained in a way that does not
  link defendant to the murder.  We agree with the State, however, that the
  evidence presented must be considered together, not separately.  See State
  v. Benneig, 146 Vt. 391, 395, 505 A.2d 1192, 1195 (1985) (bits of
  circumstantial evidence of marijuana use by defendant, considered together,
  serve as evidence that she had power and intent to control marijuana found
  in her home).  For our purposes here, we do not repeat each item of
  evidence, but recount only the most critical facts.

       We begin by noting that the State presented evidence of both motive
  and opportunity.  Defendant and his wife were having marital problems that
  were at least in part related to his drinking.  Defendant admitted he had
  been drinking that day; moreover, the police found beer cans, some empty
  and some full, in the trash.  The Gregas' suitcases were neatly and tightly
  packed.  From this evidence, the jury could infer that the Gregas had
  fought over defendant's drinking and that Mrs. Grega was planning to leave. 
  Defendant's own statements established that he was present at the
  condominium that evening.

       Further, the physical evidence at the scene implicated defendant as
  the guilty party.  Two facts in particular stand out: (1) the clothes in
  the washing machine, and (2) the unusual cleanliness of the crime scene. 
  These facts indicate that the person who raped and murdered Mrs. Grega took
  time to clean and wipe down surfaces in the condominium, and to place the
  bloody clothes in the washing machine, let the machine fill up, and stop
  the machine mid-cycle so the clothing would soak in the soapy water.  Only
  defendant would have been free to take his

 

  time cleaning up the scene, secure in the knowledge that no one else would
  be returning to the condominium.  Defendant's isolated fingerprint on the
  washing machine was also evidence that he had placed the bloody clothes in
  the washer.  

       Defendant's own statements to the police were also strong evidence
  against him.  Although he claimed that he took his son to a local
  playground, he was not seen by other people at the playground, including
  one person who had a habit of looking for out-of-state plates.  His claim
  that he returned to the condominium around 7:00 pm, or at dusk, leaves
  unexplained a substantial period of time between his return and the call to
  police at 8:30.

       Perhaps most damaging to defendant was his attempt to explain his
  wife's death as an accident.  He tried to provide innocent explanations for
  the injuries to her head and throat, and claimed that the unusual size of
  his penis might have caused her to bleed following anal intercourse.  In
  fact, as the forensic evidence showed, the victim's injuries were much too
  serious to have been caused accidently, or during consensual intercourse. 
  Defendant presumably recognized this at trial, when he sought to shift
  blame to Comi and Carpenter, and abandoned the theory that his wife's death
  was accidental.  The jury could infer, however, that defendant gave police
  explanations for his wife's injuries because he was trying to cover up the
  murder as an accident.  See Durenleau, 163 Vt. at 12, 652 A.2d  at 983 (in
  assessing circumstantial evidence, fact-finder may draw rational inference
  to determine whether disputed ultimate facts occurred).

       Finally, despite defendant's claims to the contrary, the evidence was
  not consistent with the defense theory that Mrs. Grega was killed by a
  stranger who broke into the condominium.  There was no sign of forced entry
  or of a struggle.  Assuming that such a person would have taken the time to
  clean up the crime scene, defendant cannot explain why the person would
  have washed defendant's clothes as well as the victim's, or why a bloody
  sanitary pad was thrown away together with cans of beer from the
  condominium.  Defendant also points to the piece of cardboard from a carton
  of Marlboro cigarettes found in the toilet at the condominium.  He

 

  emphasizes that both Comi and Carpenter had access to Marlboro cigarettes,
  while neither of the Gregas smoked.  The evidence showed, however, that the
  piece of cardboard was closely adhered to the side of the toilet, and not
  part of the wad of towels clogging the toilet.  The jury could have
  reasonably concluded that the cigarette package was disposed of long before
  the paper towels, and was in no way related to the Gregas or to the murder.
  Taken together, the State's evidence clearly identified defendant as the
  man responsible for his wife's death.  Looking at the evidence in the light
  most favorable to the State, we conclude that it was sufficient to support
  a finding of guilt beyond a reasonable doubt.  The trial court did not err
  in denying defendant's motion for judgment of acquittal.

                                     VI.

       Finally, defendant argues that the trial court erred when it denied
  his motion to preclude the imposition of sentence for his conviction of
  aggravated sexual assault because aggravated sexual assault is a
  lesser-included offense of aggravated murder.  The court subsequently
  sentenced defendant to a term of fifty years to life for the aggravated
  sexual assault conviction, and ordered the sentence to run concurrently
  with his sentence for aggravated murder.  Defendant now contends that his
  conviction and sentence for aggravated sexual assault is impermissible
  under the Double Jeopardy Clause of the Fifth Amendment to the United
  States Constitution.  

       The Double Jeopardy Clause provides that no person may "be subject for
  the same offense to be twice put in jeopardy of life or limb."  U.S. Const.
  amend. V.  This provision is made applicable to the states through the
  Fourteenth Amendment.  See Benton v. Maryland, 395 U.S. 784, 795 (1969). 
  The guarantee against double jeopardy prevents a second or subsequent
  prosecution for the same offense after either conviction or acquittal, as
  well as the imposition of multiple punishments for the same offense.  See
  North Carolina v. Pearce, 395 U.S. 711, 717 (1969).  

 

       When a defendant is tried in a single trial for two statutory offenses
  that criminalize the same conduct, whether or not a conviction and sentence
  may be had under each statute is a question of legislative intent, not
  constitutional prohibition.  See Missouri v. Hunter, 459 U.S. 359, 367
  (1983).  The Legislature is free to impose multiple punishments, but its
  intent to do so must be clear.  When it is not, the United States Supreme
  Court has applied a rule of statutory construction, first enunciated in
  Blockburger v. United States, 284 U.S. 299, 304 (1932), to divine whether
  the legislature intended to punish two separate offenses or one.  Under the
  Blockburger test, the double jeopardy clause does not prevent multiple
  punishment if "each provision requires proof of a fact which the other does
  not."  Id. at 304.

       The State in the instant case charged defendant with aggravated murder
  pursuant to 13 V.S.A. § 2311(a)(8), alleging as the aggravating factor that
  the murder was committed while defendant was perpetrating a sexual 
  assault.(FN2)  To obtain a conviction, the State was required to

 

  prove each of the elements of both crimes beyond a reasonable doubt.  See
  id. § 2311(b).  The State also charged defendant with aggravated sexual
  assault pusuant to 13 V.S.A. § 3253(a)(1), alleging as the aggravating
  factor that defendant inflicted serious bodily injury during the
  perpetration of a sexual assault.  Defendant was convicted of both
  aggravated murder and aggravated sexual assault.  He argues, however, that
  serious bodily injury is always proved by proof of death.  Defendant
  contends, therefore, that aggravated sexual assault is a lesser-included
  offense of aggravated murder because the lesser offense required no proof
  beyond that required of the greater offense.  The State argues, however,
  that aggravated murder is not the same offense as aggravated sexual assault
  under the Blockburger test, because the crimes require proof

 

  of different facts.  Aggravated murder requires proof of death; aggravated
  sexual assault requires proof of serious bodily injury.

       The aggravated sexual assault statute defines serious bodily injury as
  "bodily injury which creates a substantial risk of death or which causes
  substantial loss or impairment of the function of any bodily member or
  organ, or substantial impairment of health, or substantial disfigurement." 
  Id. § 3251(4).  We agree that under this definition, proof of death will
  always include proof of serious bodily injury.  Nor are we persuaded by the
  State's argument that the offenses are distinct because there was evidence
  at trial supporting a finding of serious bodily injury that was separate
  from the evidence of the victim's death.  The Blockburger test focuses on
  the statutory elements of the offenses; the evidence and proof offered at
  trial are immaterial to the analysis.  See Grady v. Corbin, 495 U.S. 508,
  521 n.12 (1990), overruled on other grounds, United States v. Dixon, 509 U.S. 688, 705 (1993).  Proof of the elements of aggravated murder under §
  2311(a)(8) necessarily proves every element of aggravated sexual assault as
  it is defined under § 3253(a)(1).  Aggravated sexual assault under §
  3253(a)(1) is a lesser-include offense of aggravated murder under §
  2311(a)(8).  See State v. Savva, 159 Vt. 75, 93, 616 A.2d 774, 784 (1992)
  ("`An offense is a lesser-included offense of another if it is composed of
  some, but not all, elements of the greater offense and does not have any
  element not included in the greater offense.'" (quoting State v. Forbes,
  147 Vt. 612, 616-17, 523 A.2d 1232, 1235 (1987))); see also State v. Bourn,
  139 Vt. 14, 16, 421 A.2d 1281, 1282 (1980) (þThe lesser offense is included
  in the greater only if each of its elements `is always a necessary element
  of' the greater offense." (quoting Illinois v. Vitale, 447 U.S. 410, 419
  (1980))).  Because the two provisions set forth the "same" offense under
  the Blockburger test, we must presume that the Legislature did not intend
  for the imposition of cumulative punishment for

 

  aggravated murder and aggravated sexual assault as they are charged in the
  instant case.(FN3)  See Whalen v. United States, 445 U.S. 684, 694-95 (1980)
  (Double Jeopardy Clause offended if defendant is separately sentenced for
  felony murder and for rape, where rape was predicate crime required to be
  proved as element of felony murder).

       The Blockburger presumption may be overcome, however, by a "clear
  indication of contrary legislative intent."  Albernaz v. United States, 450 U.S. 333, 340 (1981).  Thus, when the legislature has specifically
  authorized cumulative punishment for the same act, the Blockburger
  presumption must yield, and the imposition of such punishment does not
  violate double jeopardy.  See Garrett v. United States, 471 U.S. 773,
  778-79 (1985); accord Hunter, 459 U.S.  at 368.  The Legislature did not,
  however, include a provision in the aggravated murder statute expressly
  resolving whether it intended courts to impose multiple punishment for
  aggravated murder and its applicable predicate offenses.  Moreover, we
  cannot conclude from the language, structure, or legislative history of the
  statutes that the Legislature intended to authorize separate punishment
  under each.

       We turn first to the statutory scheme defining murder and aggravated
  murder and the penalties for homicide, which was comprehensively amended by
  the Legislature in 1987.  See State v. Ashley, 161 Vt. 65, 67, 632 A.2d 1368, 1370 (1993) (when interpreting criminal statutes, "[w]e will read
  operative sections of [the] statutory scheme in context and the entire
  scheme in pari materia").  The crimes of first-and second-degree murder
  are defined by 13 V.S.A. § 2301, and the sentence for a crime under § 2301
  is set forth in § 2303.  A new crime,

 

  the crime of aggravated murder, was added in § 2311.  The language of both
  the penalty provision (§ 2303) and the aggravated murder statute (§ 2311)
  is modeled after the Model Penal Code's death penalty provision.  See
  American Law Institute, Model Penal Code § 210.6 (1980).

       Section 2303 enumerates various aggravating and mitigating factors
  that courts should consider when imposing sentences for first-and
  second-degree murder.  See 13 V.S.A. § 2303(d), (e).  The statute provides
  for penalties ranging from life in prison with a minimum term of ten years,
  to life in prison without the possibility of parole.  The Legislature also
  incorporated the Model Penal Code's provision for a bifurcated trial by
  separating the penalty phase from the merits phase of a first-or
  second-degree murder proceeding.  See id. § 2303; M.P.C. § 210.6.  Under
  this provision, the trial court considers the aggravating and mitigating
  factors at a separate sentencing hearing, rather than at trial.  See 13
  V.S.A. § 2303(c).  Thus, the aggravating factor is not proved as an element
  of the underlying offense in the merits phase of the prosecution.  

       When the statute is structured in this manner, there is no violation
  of double jeopardy.  Criminal conduct can be used to enhance a sentence at
  a sentencing hearing regardless of whether the defendant has been charged
  with, convicted of, or even acquitted of the conduct, as long as it has
  been proven at the hearing by a preponderance of the evidence.  See United
  States v. Watts, 117 S. Ct. 633, 638 (1997) (court may consider conduct for
  which defendant has been acquitted provided that conduct is proven by
  preponderance of evidence); accord State v. Rock, No. 96-478, slip op. at 2
  (Vt. Feb. 5, 1998); State v. Pellerin, 164 Vt. 376, 383, 670 A.2d 255, 259
  (1995) (trial court at sentencing hearing may consider prior convictions of
  defendant); State v. Drake, 150 Vt. 235, 236, 552 A.2d 780, 781 (1988)
  (court may consider prior crimes for which defendant was not tried).  The
  Double Jeopardy Clause is not offended as long as the sentence is within
  the range authorized by the Legislature because the resulting sentence is
  considered punishment only for the offense of conviction.  See Witte v.
  United States, 515 U.S. 389, 403-04 (1995).

 

       In contrast, the Legislature did not follow the Model Penal Code with
  respect to the penalty provisions for aggravated murder.  Unlike the
  statutory scheme for first-and second-degree murder, the Legislature did
  not bifurcate the merits and penalty phase of an aggravated murder
  proceeding.  See 13 V.S.A. § 2311(c).  Rather, the Legislature required the
  State to prove the aggravating factor beyond a reasonable doubt, as an
  element of the offense of aggravated murder.  The statute is not unlike
  that for the crime of felony murder considered in Whalen, 445 U.S.  at
  693-94, in which the United States Supreme Court held, consistent with the
  Blockburger analysis, that when proof of rape is a necessary element of
  proof of felony murder, rape is a lesser-included offense for purposes of
  the Double Jeopardy Clause and may not receive a separate sentence.  

       We recognize that the offenses at issue in this case are not
  lesser-included offenses in the traditional sense.  See Whalen, 445 U.S.  at
  708-09 (Rhenquist, J., dissenting) ("[T]he Blockburger test, although
  useful in identifying statutes that define greater and lesser-included
  offenses in the traditional sense, is less satisfactory, and perhaps even
  misdirected, when applied to statutes defining `compound' and `predicate'
  offenses.").  Traditionally, greater and lesser-included offenses reflect
  a "`continuum of culpability'" in which each offense along the continuum
  "`serves to vindicate the same social norm.'"  People v. Harding, 506 N.W.2d 482, 492 (Mich. 1993) (quoting People v. Wilder, 308 N.W.2d 112, 125
  (Mich. 1981)).  For example, first-degree murder and murder in lesser
  degrees are themselves lesser-included offenses of aggravated murder
  because each of these offenses serves to vindicate the commission of a
  homicide.  The offenses along the continuum are logically related.  See id. 
  The progression along this continuum reflects increasingly culpable acts of
  homicide warranting increasingly severe punishment.  This relationship does
  not exist between the compound and predicate crimes in this case.  Rather
  than being related by logic, these offenses are related only by the
  decision of the Legislature.  See id.  Nevertheless, "we are unpersuaded
  that this case should be treated

 

  differently from other cases in which one criminal offense requires proof
  of every element of another offense."  Whalen, 445 U.S.  at 695.(FN4)

       In view of the manner in which the Legislature has constructed the
  aggravated murder statute, we cannot find any evidence that the Legislature
  intended to permit separate penalties for aggravated murder and aggravated
  sexual assault in the circumstances presented by this case.  In the absence
  of clear legislative intent, courts are restrained from guessing whether
  the Legislature would impose two sentences.  See id. at 695.  Moreover,
  settled law requires that "`ambiguity concerning the ambit of criminal
  statutes should be resolved in favor of lenity.'"  United States v. Bass,
  404 U.S. 336, 347 (1971) (quoting Rewis v. United States, 401 U.S. 808, 812
  (1971)).  "`This policy of lenity means that the Court will not interpret a
  . . . criminal statute so as to increase the penalty that it places on an
  individual when such an interpretation can be based on no more than a guess
  as to what [the Legislature] intended.'"  Whalen, 445 U.S.  at 696 n.10
  (quoting Ladner v. United States, 358 U.S. 169, 178 (1958)).  

       Our conclusion is buttressed by the character of the penalty imposed. 
  A conviction for aggravated murder carries with it the maximum sentence
  permitted under Vermont law, and the sentence is mandatory.  A defendant
  convicted of this crime is not eligible for probation, parole, work
  release, or noncustodial furlough "except when serious medical services
  make custodial furlough inappropriate."  13 V.S.A. § 2311(c).  Considering
  the severity of this sentence, where aggravated murder and aggravated
  sexual assault criminalize the same conduct, as it does in this case, we
  conclude that the Legislature intended to consolidate the punishment for
  murder and aggravated sexual assault into one sentence for aggravated
  murder.  Accordingly, defendant's

 

  sentence for aggravated sexual assault is impermissible under the Double
  Jeopardy Clause.

                                    VII.

       In conclusion, we must address defendant's claim that the trial judge
  failed to exhibit an impartial and unbiased judicial demeanor.  We have
  examined the transcripts of this trial, and have found no support for
  defendant's claims that Judge DiMauro was "extremely sensitive" to the
  cross-examination of law enforcement officers and hostile to defendant's
  theory of the case.  Nor are we impressed with defense counsel's unfounded
  speculation that the judge's marital relationship with a law enforcement
  officer affected her conduct of this trial.  See State v. Putnam, 164 Vt.
  558, 564-65, 675 A.2d 422, 426 (1996) (judge permitted to preside over
  criminal trial where officers from her husband's police barracks were
  involved in investigation and as trial witnesses).

       In short, defendant's trial was in all respects proper and fair. 
  Indeed, defendant made no successful claim of error on appeal. 
  Accordingly, defendant's claim that Judge DiMauro's role as presiding judge
  in this case requires reversal of his conviction has no basis.    

       Affirmed, except defendant's sentence for aggravated sexual assault is
  vacated.


       On reargument, defendant contends that, under the Double Jeopardy
  Clause, we must vacate the conviction for aggravated sexual assault, not
  simply the sentence on the conviction.  We agree that the conviction for
  aggravated sexual assault cannot stand.  The United States Supreme Court
  rejected the contention that multiple convictions could stand to provide a
  backup conviction in the event that the conviction on the greater offense
  is reversed.  See Rutledge v. United States, 517 U.S. 292, 305-06 (1996). 
  Instead, the Court approved a procedure where courts have directed "entry
  of judgment for a lesser included offense when a conviction for a greater
  offense is reversed on grounds that affect only the greater offense."  Id.
  at 306.  In view of Rutledge, we vacate the conviction for aggravated
  sexual assault.  See United States v. Rosario, 111 F.3d 293, 301 (2d Cir.
  1997) (Rutledge disapproved previous practice in Second Circuit of entering
  concurrent convictions on lesser and greater offenses).

       Defendant's conviction for aggravated sexual assault is vacated.




                              FOR THE COURT:



                              _______________________________________
                              Associate Justice





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                                  Footnotes


FN1.  Defendant claims that he sought to introduce the convictions not
  only to impeach Comi and Carpenter, but also as support for the defense
  theory that Comi and Carpenter murdered the victim.  As we have already
  discussed, however, such propensity evidence is barred by V.R.E. 404(a).

FN2.  The aggravated murder statute provides that:

  (a) A person is guilty of aggravated murder if he or she commits a
  first or second degree murder, as defined in section 2301 of this title,
  and at the time of his or her actions, one or more of the following
  circumstances was in fact present:
          
       (1) The murder was committed while the defendant was in custody under
  sentence for murder or aggravated murder.
          
       (2) The defendant had, prior to commencement of the trial for
  aggravated murder, been convicted of another aggravated murder or murder in
  any jurisdiction in the United States and territories.
          
       (3) At the time of the murder, the defendant also committed another
  murder.
          
       (4) At the time of the murder, the defendant knowingly created a great
  risk of death to another person or persons.
          
       (5) The murder was committed for the purpose of avoiding or preventing
  lawful arrest by a law enforcement officer of any person, or effecting an
  escape by any person from lawful custody of a law enforcement officer.
          
       (6) The murder was committed by a person hired for such purpose in
  return for anything of value.  Both the person hired and the person hiring
  him or her are guilty of aggravated murder.
          
       (7) The victim of the murder was known by the person to be a person
  employed in any capacity in or about a correctional facility or a law
  enforcement officer, and was performing his or her official duties.
          
       (8) The murder was committed in perpetrating or attempting to
  perpetrate sexual assault or aggravated sexual assault.
          
  (b) In a prosecution for aggravated murder, the state shall allege and
  prove beyond a reasonable doubt one or more of the circumstances enumerated
  in subsection (a) of this section.
          
  (c) The punishment for aggravated murder shall be imprisonment for
  life and for no lesser term.  The court shall not place on probation or
  suspend or defer the sentence of any person convicted of aggravated murder. 
  A person sentenced under this section shall not be eligible for parole
  during the term of imprisonment imposed herein and shall not be eligible
  for work-release or noncustodial furlough except when serious medical
  services make custodial furlough inappropriate.

  13 V.S.A. Sec. 2311.

FN3.  The Legislature has defined the crime of aggravated murder as
  first-or second-degree murder under any one of the eight enumerated
  circumstances.  See 13 V.S.A. § 2311(a)(1)-(8).  Thus, aggravated murder
  does not in all cases require proof of sexual assault or aggravated sexual
  assault because there are seven other aggravating circumstances.  Where
  aggravated murder is based on an aggravating circumstance other than sexual
  assault, cumulative punishment for aggravated sexual assault and aggravated
  murder is permissible under the Blockburger analysis.  Aggravated murder
  would require proof of the victim's death, but not proof of a sexual act. 
  Aggravated sexual assault requires proof of a sexual act, but not proof of
  the victim's death.  Thus, each offense would require proof of a fact that
  the other does not.


FN4.  In Whalen, the Supreme Court held that dual convictions for rape
  and felony murder predicated on the rape violated double jeopardy.  See
  Whalen v. United States, 445 U.S. 684, 694-95 (1980).  The felony-murder
  statute at issue listed several predicate felonies other than rape.  If the
  Court had applied the Blockburger test to the entire felony-murder statute,
  it would have concluded that rape and felony murder were separate offenses. 
  Rape did not require proof of a killing, and felony murder did not require
  proof of rape -- any of the other predicate felonies was sufficient.  The
  Court instead applied the Blockburger test to the felony-murder statute
  after incorporating the predicate felony as a required element of proof. 
  See id. at 695.  The Court then concluded that rape was a lesser-included
  offense.  This result obtained notwithstanding the fact that the criminal
  statutes were aimed at separate social evils.