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

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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.

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).

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.

Defendant's conviction for aggravated sexual assault is vacated.

FOR THE COURT:

_______________________________________
Associate Justice

-------------------------------------------------------------------------------
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.

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