State v. Gorbea

State v. Gorbea  (97-465); 169 Vt. 57; 726 A.2d 68

[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. 97-465


State of Vermont	                      Supreme Court

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

Joseph C. Gorbea, III	                      November Term, 1998


Edward J. Cashman, J.

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

       Charles S. Martin of Martin & Associates, Barre, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse and Johnson, JJ.


       AMESTOY, C.J.   Defendant appeals his convictions for burglary,
  assault, and robbery.  He contends the trial court erred by: (1) failing to
  conduct an evidentiary hearing to determine  whether extraneous information
  improperly influenced the jury; and (2) considering defendant's  lack of
  remorse at sentencing without granting him judicial immunity.  We affirm.

       On November 13, 1996 two individuals entered the home of Yolanda
  Phillips wearing  masks and brandishing a shotgun.  They struck a visitor
  in the mouth and stole Phillips's rent  money.  Although the victims could
  not identify the assailants, they suspected that one of the  perpetrators
  was Tim Flood because Flood had been expected to visit Phillips's house
  that  evening.  Moreover, Flood's car was seen pulling into Phillips's
  driveway about the time of the  incident.


       The following day, Flood was questioned by the police about an
  unrelated crime in which  he was a suspect.  During the questioning, the
  police asked Flood about the Phillips incident.   Flood admitted his role
  in the offense, received a grant of immunity from the state's attorney, 

 

  and recounted the events of that evening.  Flood implicated James Lucero in
  the offense, who later  confessed to his involvement and implicated
  defendant. 

       On the second day of trial, the court officer informed the judge that
  a juror, whom he did  not identify, had expressed concern about the
  presence of spectators in the courtroom who might  be related to defendant. 
  The officer did not present a note to the judge or suggest that the juror 
  was attempting to send the judge a message.  The court understood the
  officer's statement as an  observation, or as something the officer had
  overheard.  The court informed the officer that the  issue would be taken
  up with the sheriff at a security meeting previously scheduled for the noon 
  break.  

       During the meeting, the court raised concerns about the safety of
  jurors leaving the  building after reaching a verdict, noting that family
  members of defendant, a victim, and a State  witness had all attended the
  trial.  Moreover, defendant's mother and aunt had been involved in  an
  altercation with Flood outside the courtroom after his testimony on the
  first day of trial.   Accordingly, the sheriff agreed to supply a security
  detail to escort jurors to their cars after the  verdict, which was
  expected the next day.  The court decided not to inform counsel of the
  security  plans until they were fully formed.

       When trial resumed after the noon break, the court learned that the
  parties expected to  conclude and send the case to the jury that day,
  rather than the next.  The court did not inform  counsel of the additional
  security measures at this time because it was unclear whether they could 
  be put into place on such short notice.  However, the additional security
  arrived shortly after jury  deliberations began.  During deliberations, the
  sheriff informed counsel that the court had  requested additional security
  to assuage any jury concerns about defendant's family.  Defense  counsel
  did not at that time object to the court's actions.


       Following the verdict, however, defense counsel objected to not being
  informed earlier of  the juror's concern, and subsequently filed a
  post-trial motion seeking a new trial based on the  court's "ex parte
  communication with the jurors."  Defense counsel also requested an

 

  evidentiary hearing, and indicated that she intended to call the judge as a
  witness at the hearing.  The court denied the motion for a new trial and
  denied the request to call the judge as a witness,  but agreed to allow the
  parties to submit proposed questions to be sent to the jurors. 

       The parties filed a joint letter with the court outlining nine
  questions which they proposed  to ask the jurors at an evidentiary
  hearing.(FN1) After reviewing the questions, however, the  court
  concluded that no prejudicial extraneous information or influence had been
  conveyed to the  jury prior to the verdict.  There was no evidence that any
  of the trial spectators had conducted  themselves improperly or had called
  attention to themselves other than by their mere presence.  The court also
  noted that there was no allegation or evidence that any of the jurors had
  observed  or heard of the incident involving the alleged assault against
  Flood earlier in the trial.   Accordingly, the court concluded that the
  allegations did not warrant an inquiry into the jury's  deliberative
  process. 


       Prior to the sentencing hearing, defense counsel filed a letter with
  the court advising that  defendant could not make a statement at sentencing
  without immunity.  At the hearing, the court  sentenced defendant to five
  to fifteen years.  In imposing sentence, the court noted that defendant 
  had not "face[d] up to [his] problems."  The court rejected counsel's
  argument that defendant 

 

  could not accept responsibility for his actions without a grant of
  immunity.  This appeal followed.

                                     I.

       Defendant first contends the court erred in failing to conduct an
  evidentiary hearing to  determine whether extraneous influences improperly
  influenced the jury's verdict.  Determining  whether a verdict was affected
  by extraneous influences "`is a fact-driven exercise'" that turns  on the
  particular facts and circumstances of each case.  State v. McKeen, 165 Vt.
  469, 472, 685 A.2d 1090, 1092 (1996) (quoting United States v. Sanders,
  962 F.2d 660, 668 (7th Cir. 1992)).  "Because the trial judge develops a
  relationship with the jury during the course of a trial he or she  is in
  the best position to make that determination."  Id., 685 A.2d  at 1092-93. 
  Therefore, we  accord the trial court's ruling every reasonable presumption
  in its favor.  See id., 685 A.2d  at  1093.  Absent a showing of abuse or
  withholding of discretion, the trial court's decision will be  upheld.  See
  id, 685 A.2d  at 1092.  

       A defendant is entitled to a fair trial free of extraneous influences. 
  See State v. Wool, 162  Vt. 342, 353, 648 A.2d 655, 662 (1994).   To
  protect against prejudicial extraneous contact, we  have adopted a two-part
  inquiry.  A defendant alleging extraneous influences or juror misconduct 
  must show that an irregularity occurred, and that the irregularity had the
  capacity to affect the  jury's verdict.  See McKeen, 165 Vt. at 472, 648 A.2d  at 1092.  


       Defendant asserts that the mere presence of defendant's family in the
  courtroom and a  juror's expressed concern about their presence
  necessitated an inquiry into whether an extraneous  consideration had
  prejudicially influenced the jury.  See V.R.E. 606(b) (juror may testify on 
  question whether extraneous prejudicial information was improperly brought
  to jury's attention).  The court properly ruled, however, that the
  allegations failed to satisfy the standard for such an  inquiry.  As the
  court observed, none of the spectators had caused a disturbance in the
  courtroom  or exhibited any threatening behavior toward the jurors. 
  Furthermore, there was no allegation,  and no evidence, that any of the
  jurors were aware of the altercation between 

 

  defendant's family and Flood.  These findings are unchallenged.  The court
  was in the best  position to monitor the courtroom proceedings, and observe
  the conduct and demeanor of the trial  participants and spectators.  See
  McKeen, 165 Vt. at 472, 685 A.2d  at 1092.  Having exercised  its broad
  discretion in concluding that the mere expression of concern by a juror
  about the  presence of defendant's family did not rise to the level of an
  extraneous influence capable of  improperly influencing the jury, we cannot
  conclude that the court's decision represented a patent  abuse of
  discretion.  Accordingly, we find no error.

                                     II.

       Defendant also contends the court erred by considering defendant's
  lack of remorse at  sentencing without granting him immunity from any
  admissions of responsibility for the offense.  Defendant relies principally
  on our decision in State v. Loveland, 165 Vt. 418, 684 A.2d 272  (1996), in
  which we reversed a sentence based, in part, on the defendant's failure to
  demonstrate  remorse by admitting guilt to a charge of sexual assault.  On
  remand, we required the sentencing  judge to offer immunity against the use
  of his statements.  See id. at 426-27, 684 A.2d  at 278-79.  Loveland relied
  on the companion case of State v. Cate, 165 Vt. 404, 415-17, 683 A.2d 1010, 
  1018-20 (1996), which held that where a defendant has testified at trial,
  the sentencing court may  not explicitly condition probation upon an
  acknowledgment of criminal responsibility without  eliminating the threat
  of a future perjury prosecution through a grant of judicial use immunity. 
  Loveland extended the reasoning in Cate to sex offenders because of the
  unique requirement that  they admit their responsibility as a condition to
  participation in sex offender treatment programs.  "[W]e want to fashion a
  rule that encourages convicted defendants to accept treatment and 
  rehabilitation, rather than emerging untreated from incarceration." 
  Loveland, 165 Vt. at 427, 684 A.2d  at 278.


       We were careful in Loveland to limit the holding to sex offenders, see
  id. at 427 n.*, and  to reaffirm the general rule, set forth in State v.
  Sims, 158 Vt. 173, 188-89, 608 A.2d 1149, 1158  (1992), that a sentencing
  court may properly consider a defendant's failure to accept 

 

  responsibility for the offense without violating a defendant's privilege
  against self-incrimination.  See Loveland, 165 Vt. at 423, 684 A.2d  at 276.

       This case fits neither of the limited exceptions carved out in
  Loveland and Cate.   Defendant did not testify at trial, and the court did
  not expose him to possible perjury charges by  explicitly conditioning
  probation upon an admission of responsibility.  Nor was defendant charged 
  with a sex offense that might require an admission of responsibility as a
  condition to probation  or parole.  Accordingly, we find no error. 
  Affirmed.

                               FOR THE COURT:



                               _______________________________________
                               Chief Justice


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                                  Footnotes


FN1.  The proposed questions were as follows:

       1. Did you speak to the court officer about feeling intimidated by the
          spectators in  the courtroom?

       2. If so, what did you tell the court officer?

       3. What did the court officer tell you, if anything?

       4. Did you convey these concerns to any other jurors?  If so, to whom?	

       5. If so, was it before the jury deliberations began?

       6. What did you say?

       7. What was/were the other juror(s) response(s)?

       8. Did the presence of the spectators in the courtroom effect [sic]
          your decision to  reach a guilty verdict?

       9. Did the presence of police spectators in the courtroom effect [sic]
          your decision  to reach a guilty verdict?