State v. Cyr

State v. Cyr  (97-450); 169 Vt. 50; 726 A.2d 488

[Filed 29-Jan-1999]


  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. 97-450


State of Vermont	                      Supreme Court

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

Ronald Cyr	                              September Term, 1998



Edward J. Cashman, J.

       William H. Sorrell, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for Plaintiff-Appellee.

       Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
  Montpelier, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse and Johnson, JJ., and Cheever,
          S. J., Specially Assigned.


       MORSE, J.,  Defendant Ronald Cyr was convicted of first degree
  aggravated domestic  assault under 13 V.S.A. § 1043(a)(1) arising from an
  altercation that occurred during the early  morning hours of February 8,
  1997.  On appeal, he claims the trial court erred by: (1) allowing  the
  State under V.R.Cr.P. 7(d) to amend its single-count information during
  trial; (2) denying his  motion at sentencing to redact statements he made
  during the pre-sentence investigation (PSI); and  (3) refusing to grant him
  use immunity before allocution.  We affirm.

       At trial, evidence was introduced that defendant and his girlfriend
  returned to her  residence after the two spent an evening drinking in a
  Barre bar.  An argument ensued and  defendant attacked her.  She described
  the attack as one of repeated closed blows to the face,  choking,
  smothering, and tearing of her facial skin with his fingers.  During this
  attack, defendant  said he would kill her.  She escaped to a neighbor's
  home and called the police.  

 


       Defendant did not take the stand and offered no evidence to dispute
  his girlfriend's version  of the event.  In the PSI report prepared after
  trial, however, defendant's version of the attack  differed substantially
  from hers.  According to him, after the two returned from the bar they 
  started arguing, and she grabbed and twisted two of his fingers, breaking
  one of them.  He pushed  her away, and she hit a doorway.  She then smacked
  him in the face, whereupon he hit her in the  back.  She dug her
  fingernails deep into his neck, at which point he scratched her in the
  face.   Defendant estimated that the entire episode lasted sixty seconds.

       The State charged in a single-count that defendant "did attempt to
  cause or willfully or  recklessly caused serious bodily injury to a family
  or household member."  At the close of the  State's case, defendant moved
  for acquittal under V.R.Cr.P. 29 (requiring judgment of acquittal  if
  evidence insufficient to sustain conviction), arguing that the information
  was impermissibly  vague and that State's failure to elect "what exactly it
  is they are charging" warranted dismissal. 
 	
       Addressing defendant's motion, the court stated: "I think the State
  has got to develop a  theory of the case . . . . I think [the State] can
  charge it the way they've charged it but . . .  they've got to marry up the
  charge with the facts.  So I need to know what [the State's] factual 
  theory [is] to support the charge."  The court gave the State until the
  next day to amend its  information to articulate "what the specific act or
  acts are."  

       In response to the court's direction, the State filed an amended
  information, charging in  one count that defendant

       willfully caused or attempted to cause serious bodily injury by 
       creating a substantial risk of death by smothering and choking; or 
       willfully caused or attempted to cause serious bodily injury by 
       substantial disfigurement by the entire course of conduct culminated 
       by clawing-digging her face; or recklessly caused serious bodily 
       injury by creating a substantial risk of death by smothering and 
       choking; or recklessly caused serious bodily injury by substantial 
       disfigurement by the entire course of conduct culminated by 
       clawing-digging her face, to a family or household member.

       The defense again moved to dismiss on the basis that the amended
  information charged defendant  with multiple alternative offenses, and the
  State had failed to elect a theory of the case.

 


       The trial court denied the motion but instructed the jury to consider
  a variety of possible  verdicts.  The court submitted a total of twelve
  different verdict forms to the jury, which required  jurors to choose among
  different combinations of elements potentially sufficient for a conviction. 
  Specifically, in order to return a verdict of guilty, jurors had to choose
  one of three types of  culpability -- willfully caused bodily harm,
  willfully attempted to cause bodily harm, or recklessly  caused bodily
  harm.  They also had to choose between the State's two factual theories,
  i.e.,  whether the assault was accomplished by "smothering or choking" or
  by "the entire course of  conduct culminated by clawing-digging [the
  victim's] face."  Finally, because defendant had  requested instructions on
  the lesser-included offense of domestic assault, jurors had to choose 
  between harms resulting in bodily injury or "serious" bodily injury, the
  former being sufficient  for a non-aggravated domestic assault conviction. 
  The court instructed the jury that it could return  a guilty verdict on
  only one of the twelve possible theories.  

       The jury returned a verdict of guilty indicating that defendant had
  "Recklessly Caused  Serious Bodily Injury by substantial disfigurement by
  the entire course of conduct culminated by  clawing-digging the face of . .
  . a family or household member."  Subsequently, defendant filed  a motion
  for arrest of judgment under V.R.Cr.P 34 ("the court . . . shall arrest
  judgment if the  indictment or information does not charge an offense")
  and, alternatively, a motion for new trial  under V.R.Cr.P 33, arguing that
  the State's amendment of the information during trial violated  V.R.Cr.P.
  7.  The trial court denied the motion.

                                     I.


       Defendant's first claim is that the State violated V.R.Cr.P. 7(d)
  (permitting amendment  of information at trial only if "no additional or
  different offense is charged and if substantial  rights of the defendant
  are not prejudiced") by alleging alternative offenses within a single 
  count.  We agree with the State that the amended information charged merely
  one crime and,  albeit not simply, clarified the alternative means by which
  the offense was alleged to have been  committed.  Rule 7(b) states in part,
  "[t]he indictment or the information shall be a plain, 

 

  concise, and definite written statement of the essential facts constituting
  the offense charged."   V.R.Cr.P. 7(b).  The State's initial information
  satisfied the requirement of Rule 7(b).

       Defendant was charged with assaulting his girlfriend by hitting,
  smothering, choking,  and clawing her.  The acts of defendant were related
  to one attack.  While the amended  information did charge three offenses in
  the disjunctive, two -- attempt and reckless action --  are subsumed within
  the third, willful causation of serious bodily harm.  See State v. Bolio, 
  159 Vt. 250, 253-54, 617 A.2d 885, 887 (1992) (establishing proof of higher
  culpable mental  state necessarily establishes the lower state of
  recklessness); State v. Young, 139 Vt. 535, 542,  433 A.2d 254, 258 (1981)
  (attempt is a lesser-included offense of a completed crime). 

       Statutes may define an offense by two or more separate acts or
  transactions in the  disjunctive, the whole may be charged in the
  conjunctive, and the accused may be found guilty  of any one of the acts
  alleged.  See State v. McDermott, 135 Vt. 47, 50-51, 373 A.2d 510,  513-14
  (1977).  The test is whether the information sets forth charges with
  sufficient  particularity to reasonably indicate the exact offense charged
  and to enable a defendant to  prepare a defense.  See State v. Christman,
  135 Vt. 59, 60, 370 A.2d 624, 625 (1977).  The  information may take
  several forms:  conjunctive or disjunctive pleading of separate offenses 
  within single counts, or pleading each offense in a separate count.  See
  McDermott, 135 Vt. at  51, 373 A.2d  at 513-14.  We have stated that a
  disjunctive pleading is not fatal if "the offenses  were not so separate
  and distinct as to require different evidence in prosecution and defense of 
  them."  Id., 373 A.2d  at 513.  The danger that some jurors may convict on
  evidence of one  act while other jurors will rely on another, see State v.
  Zele, ___ Vt. ___, ___, 716 A.2d 833,  836 (1998), is not present here. 
  Additionally, the concern that jurors may be swayed by the  amount of
  evidence presented as to all the acts when there is inadequate proof on any
  one act  alone, see id., is also absent given the court's instructions.  

       While the amendment to the information and resulting twelve
  alternative verdict forms  was needlessly complicated, defendant brought
  the instruction upon himself by objecting to a 

 

  more simplified presentation.  Here, the trial court gave carefully
  tailored instructions to the  jury, along with special verdict forms.  The
  court made clear to the jury that it could only  return one guilty verdict
  if jurors unanimously agreed with any of the verdicts.  Thus the court 
  eliminated any danger of unfair prejudice.
 
                                     II.


       After receiving the PSI report, but prior to sentencing, defendant
  filed a motion to  redact portions of the PSI.  Defendant requested that
  certain statements made during his  interview with a probation officer be
  stricken because they were obtained in violation of his  right against
  self-incrimination and his right to counsel.  Defendant first claims that
  the  probation officer improperly obtained defendant's statements because
  Miranda warnings were  not given to him before speaking with the officer. 

       At the sentencing hearing, defense counsel referred to Miranda
  warnings during her colloquy with the court.  However, counsel made these
  references without citing any supporting case law as to why Miranda was
  even applicable to a PSI interview.  Moreover, no factual record was
  developed to indicate whether defendant was "in custody," as that term is
  defined in Miranda v. Arizona, 384 U.S. 436 (1966), or the nature of
  questioning at the PSI interview.  Without such a factual record, the issue
  was not adequately presented and supported. 

       We note that the majority of courts that have addressed this issue
  under the federal  constitution have held that PSI interviews do not
  require Miranda warnings.  See, United  States v. Hicks, 948 F.2d 877, 885
  (4th Cir. 1991) (probation officer need not give Miranda  warnings prior to
  conducting PSI); Williams v. Chrans, 945 F.2d 926, 951 (7th Cir. 1991) 
  (same); United States v. Cortes, 922 F.2d 123, 126-27 (2d. Cir. 1990)
  (same); United States  v. Rogers, 921 F.2d 975, 979 (10th Cir. 1990) (no
  reason to extend Miranda-type warnings to  pre-sentence interviews); United
  States v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990)  (same); Baumann v.
  United States, 692 F.2d 565, 576-77 (9th Cir. 1982) (same).  The 

 

  rationale for not extending Miranda warnings for routine pre-sentence
  interviews is that  probation officers are not conducting coercive
  interrogations with defendants.  See, Williams  v. Chrans, 945 F.2d  at 951
  (PSI conducted by neutral information gatherer for sentencing  judge rather
  than by police or prosecution); United States v. Cortes, 922 F.2d  at 126 
  (probation officers serve as agents of the court); United States v. Rogers,
  921 F.2d  at 979  (interview with probation officer neither prosecutorial
  nor punitive).  	

       Next, defendant claims that his statements to the probation officer
  violated his Fifth  Amendment right against self-incrimination, citing
  State v. Cox, 147 Vt. 421, 519 A.2d 1144  (1986).  Defendant's reliance on
  Cox is misplaced.  There, the defendant invoked his Fifth  Amendment right
  against self-incrimination by indicating that he did not want to talk to
  the  probation officer conducting his PSI until speaking with an
  investigator from the public  defender's office.  See id. at 422, 519 A.2d 
  at 1145.  The investigator had yet to arrive when  the interview was set to
  begin.  The probation officer told the defendant that she would not  return
  at a later time to conduct the interview, causing the defendant to believe
  that he would  not get an opportunity to consult with the defender's office
  before the interview.  See id. at  424, 519 A.2d  at 1146.  Believing that
  this would be his only chance to tell his side of the  story, the defendant
  reluctantly went ahead with the interview.  See id.   	

       We ruled that the conditions under which defendant continued with his
  PSI were  coercive, rendering his statements involuntary and in violation
  of his Fifth Amendment rights.  See id. at 425, 519 A.2d  at 1147.  Here,
  nothing in the record indicates that defendant's  statements to the
  probation officer were involuntary.  


       Furthermore, defendant failed to claim his privilege against
  self-incrimination.  See  Minnesota v. Murphy, 465 U.S. 420, 425 (1984)
  (Fifth Amendment privilege against self-incrimination is generally not
  self-executing).  "It is quite likely that a defendant will be aware  of
  his Fifth Amendment rights before the pre-sentence interview is conducted,
  and in any  event his attorney knows that there will be a pre-sentence
  interview and can advise the 

 

  defendant accordingly." Cortes, 922 F.2d  at 127.  Such was the case here. 
  Defendant did not  testify at trial, and he was familiar with the PSI
  routine having previously been through it for  prior offenses. 
  Additionally, after the jury found defendant guilty, the trial judge
  announced  in defendant's presence that there would be a pre-sentence
  investigation.

       The defendant also claims his Sixth Amendment right to counsel was
  violated because  his attorney was not present during the PSI.  Again, the
  factual record in this case is  insufficient to evaluate defendant's Sixth
  Amendment claim.  Defendant does not assert that  his counsel was excluded
  from the PSI or that he was forced to proceed without her.  Defense 
  counsel was presumably aware that the court had ordered a PSI, and the
  record is silent as to  why she was not present during the interview. Thus,
  no Sixth Amendment issue arises from  these facts. 

                                    III.


       Finally, defendant contends that the trial court erred when it refused
  to grant his  request for use immunity for his testimony at sentencing
  concerning the current and pending  offenses.  Defendant claims that by
  refusing to grant him use immunity at sentencing, he was  unable to give
  his version of the incident that resulted in his conviction.  Defendant
  makes this  claim although he had previously given his version of the
  attack to the interviewing probation  officer.  Furthermore, although
  defense counsel requested "use immunity for anything  [defendant] says,"
  counsel failed to describe how defendant's testimony regarding the charges 
  might impact the outcome of the sentencing hearing.  Defendant, when asked
  by the court at  his sentencing if he wished to make a statement, said:  "I
  am really sorry for everything that  happened.  And my part in the fight. 
  And I never intended to hurt her.  And any program that  I can get into I
  will get into."  Defendant failed to demonstrate any plausible theory of
  how the  outcome would have been different if he had been able to testify
  with immunity.  See In re  D.C., 157 Vt. 659, 660, 613 A.2d 191, 192 (1991)
  (mem.) (rejecting similar argument  because appellant "failed to present
  the [trial] court with specific grounds for his objection to 

 
  
  proceeding without immunity"). 
 
       Affirmed.


                               FOR THE COURT:



                               _______________________________________
                               Associate Justice