State v. Bacon

State v. Bacon (98-089); 169 Vt. 268; 733 A.2d 50

[Filed 14-May-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. 98-089


State of Vermont	                           Supreme Court

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

Christopher Bacon	                           March Term, 1999


Paul F. Hudson, J.

Dan M. Davis, Windham County State's Attorney, and James E. Maxwell, Deputy
  State's Attorney, Brattleboro, for Plaintiff-Appellee.

Robert R. Bent of Zuccaro, Willis and Bent, St. Johnsbury, for
  Defendant-Appellant.


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


       JOHNSON, J.   Defendant appeals his sentence for felony murder arguing
  that: (1) the  disparity between defendant's sentence and that imposed on a
  co-perpetrator violates defendant's  right to equal protection of the laws,
  (2) the victim's standing in the community was improperly  considered by
  the sentencing judge, and (3) juror testimony was improperly excluded.  We
  affirm.

  

                                     I.


       Defendant was convicted of felony murder (FN1) and sentenced to life
  imprisonment  without possibility of parole.  Defendant's co-perpetrator,
  Charles Gundlah, was sentenced by a  different judge to sixty years to life
  with the possibility for parole for his participation in the same  crime. 
  See State v. Gundlah, 166 Vt. 518, 520, 702 A.2d 52, 53 (1997).  Defendant
  claims that  the disparity between these two sentences violates defendant's
  right to equal protection of the law  under the United States Constitution,
  asserting that the sentencing judge knew of Gundlah's lesser  sentence but
  provided no explanation for the disparity.

       Defendant argues that he and his co-perpetrator, Gundlah, are
  similarly situated with  respect to their participation in the same
  criminal act and that therefore it was irrational to impose  different
  sentences.  To the extent that there are any differences between
  defendant's  circumstances and those of his co-perpetrator, Gundlah,
  defendant argues that they suggest that  defendant should have received the
  lesser of the two sentences.  

       At trial, defendant maintained that it was Gundlah who actually
  murdered the victim.   Furthermore, defendant argues on appeal that the
  interrogatories returned by the jury in this case,  indicating that it
  premised its finding of guilt on defendant's "reckless and wanton disregard
  for  human life" rather than an "intent to kill or do great bodily harm,"
  implied that the jury accepted  that Gundlah rather than defendant had
  actually brandished the murder weapon.  Thus, defendant  argues that he had
  a lower degree of participation in the crime which was recognized by the
  jury  and that it was unfair to subject him to a lengthier sentence than
  his co-

 

  perpetrator.

       The State concedes that defendant and Gundlah were similarly situated
  for purposes of  equal protection analysis, but contends that the rational
  basis for the disparate sentences is simply  the judge's discretion in
  imposing an individualized sentence that falls within the statutory limits. 
  See 13 V.S.A. § 2303(a).

       Federal courts have generally rejected equal protection claims based
  on disparate  sentencing so long as the sentences imposed are within
  statutory guidelines.  See, e.g., Williams  v. Illinois, 399 U.S. 235, 243
  (1970) ("Sentencing judges are vested with wide discretion in the 
  exceedingly difficult task of determining the appropriate punishment in the
  countless variety of  situations that appear.  The Constitution permits
  qualitative differences in meting out punishment  and there is no
  requirement that two persons convicted of the same offense receive
  identical  sentences."); United States v. Bokun, 73 F.3d 8, 12 (2d Cir.
  1995) ("Absent extraordinary  circumstances, a defendant has no
  constitutional or otherwise fundamental interest in whether a  sentence
  reflects his or her relative culpability with respect to his or her
  codefendants."); United  States v. Perez, 904 F.2d 142, 147 (2d Cir. 1990)
  ("[D]isparities in sentences among co-defendants are generally not
  reviewable."); United States v. DiStefano, 555 F.2d 1094, 1102 (2d  Cir.
  1977) (disparity in sentences of co-conspirators generally not reviewable
  when sentence  imposed is within statutory limitations).

       The majority of state courts interpreting the federal right to equal
  protection have reached  the same conclusion: that disparate sentences are
  not reviewable for equal protection violations  as long as they fall within
  statutory limitations.  See, e.g., People v. Bruebaker, 539 P.2d 1277, 
  1279 (Colo. 1975) ("Due to the individualized nature of sentencing, there
  is no rule that

 

  confederates in crime must receive equal sentences, nor that failure to
  impose equal sentences  violates equal protection of the law under the
  Colorado or United States Constitutions."); State  v. Candito, 493 A.2d 250, 253 (Conn. App. Ct. 1985) ("Co-defendants are not without variance, 
  and need not, in terms of punishment, be treated similarly because they are
  rarely, if ever, exactly  similar."); State v. Hansen, 877 P.2d 898, 904
  (Idaho 1994) (requirements of equal protection not  violated merely because
  disparate sentences are imposed on co-defendants); State v. Baker, 636 A.2d 553, 565 (N.J. Super. Ct. App. Div. 1994) (disparate sentences do not
  offend equal  protection where defendant's sentence was within statutory
  limitations and there was no evidence  of invidious or arbitrary action by
  the prosecutor or the court).

       In determining whether a disparate sentence implicates the equal
  protection clause,  defendant urges the Court to adopt the test applied in
  State v. Handley, 796 P.2d 1266 (Wash.  1990).  In that case, the court
  described two circumstances in which a disparate sentence may  violate
  equal protection: where two defendants similarly situated with respect to
  their participation  in a crime receive different sentences, and there is
  no rational basis for that difference; and where  a defendant is a member
  of a suspect class and receives disparate treatment on that basis.  See id. 
  at 1274-75.  Defendant asserts that the facts of the instant case satisfy
  the first scenario.

       In Handley, the defendant challenged his sentence because, while his
  sentence was an  exceptional sentence outside of the statutory range, a
  co-defendant was given a sentence within  the statutory range.  See id. at
  1268.  In that case, "[t]he actual acts of robbery and murder were 
  committed by persons other than the defendant," who was convicted of
  possession of stolen  property, rendering criminal assistance, and
  conspiracy to commit robbery.  Id.  Nonetheless, 

 

  the trial court imposed an exceptional sentence because it found the
  relevant aggravating factors  were present, and in particular the court
  noted that the victim was defendant's employer.  See id.  at 1269.  The
  Washington Supreme Court upheld the sentence in the face of an equal
  protection  challenge, reasoning that "no equal protection claim will stand
  unless the complaining person can  first establish that he or she is
  similarly situated with other persons."  Id. at 1274.  In Handley,  the
  defendant was not present at the scene of the crime, had an employment
  relationship with the  victim, and was not charged with the same crimes as
  his co-defendants.  See id. at 1275.  Thus,  because the co-defendants'
  roles differed slightly, the defendant could not establish that he was 
  similarly situated.  The relevant differences could be interpreted as
  implying a lower degree of  culpability -- an argument defendant makes in
  the instant case as well.  Nonetheless, the nature  of the difference
  between co-defendants is irrelevant because any difference in circumstances 
  defeats an equal protection analysis.  The Washington court furthermore
  emphasized that  "culpability is only one factor to be considered" in
  sentencing.  Id.

       The case law makes clear that there is no right to equivalent
  sentencing of co-defendants  under the federal Equal Protection Clause. 
  Defendant would not prevail even under the test he  advocates (set forth in
  the Handley opinion), because, like the defendant in that case, he is not 
  similarly situated with his co-perpetrator due to different manners of
  participation in the crime.  Furthermore, even if we were to accept that
  defendant and his co-perpetrator were similarly  situated in terms of their
  participation in the crime, their individual histories and relative levels 
  of remorse provide a rational basis for the court's sentencing decision.

       We hold that, because sentencing is an individualized determination,
  disparate sentences  for co-perpetrators do not implicate federal equal
  protection so long as there is no showing of 

 

  invidious discrimination and the sentences imposed are within the statutory
  limitations.

                                     II.


       Defendant further argues that the trial court erred by considering the
  victim's standing in  the community as an aggravating factor for sentencing
  purposes.  He argues that consideration of  this factor led to passion and
  prejudice in the sentencing, pointing out that defendant was  effectively
  prevented from presenting rebuttal evidence because it would be unseemly
  for a  defendant to suggest that the victim was not in fact valued by the
  community, was a person of low  character, and so on.  Defendant contends
  that the statute setting out the factors to be considered  in imposing a
  sentence limits the court to considering the character of the defendant and
  the  character of the offense.  He furthermore cites In re Morrill, 129 Vt.
  460, 464, 282 A.2d 811,  814-15 (1971), for the proposition that the
  character of the defendant is the only appropriate basis  for a sentence.

       The aggravating factors to be considered in sentencing are enumerated
  in 13 V.S.A. §  2303(d), and include characteristics of the defendant, the
  nature of the offense, and traits of the  victim (i.e., whether the victim
  was particularly weak, vulnerable, or helpless).  The statute itself, 
  therefore, makes clear that the scope of valid considerations is broader
  than that articulated in  Morrill.

       Nonetheless, assuming without deciding that it was improper for the
  sentencing judge to  consider the victim's standing in the community
  because it would be practically impossible for a  defendant to effectively
  rebut such evidence, the error in this case was harmless.  The sentencing 
  judge considered each of the aggravating and mitigating factors in turn. 
  The court found that all  of the aggravating factors were present, except
  for multiple victims.  In asking 

 

  whether the murder was "particularly severe, brutal or cruel," see 13
  V.S.A. § 2303(d)(1), the  court noted that defendant participated in the
  murder by "suppl[ying] the horseshoe stake to  Charles Gundlah" and
  "beat[ing the victim] about the head into a state of semi-consciousness and 
  helplessness."  The Court found that none of the mitigating factors
  applied.  In particular, the  court concluded that defendant was not "an
  accomplice in the murder committed by another person  [where] his
  participation was relatively minor."  The court stated that, "[a]s much as
  [defendant]  would ascribe responsibility for this act to Charles Gundlah,"
  defendant in fact planned the  robbery with Gundlah knowing that the victim
  lived alone and was for that reason vulnerable, that  he never broke away
  from Gundlah during the perpetration of the crime, and that he assisted in 
  attempting to hide the body and obscure the fact that a crime had occurred. 
  Also, as previously  noted, though defendant did not deliver the fatal
  blow, he assisted in immobilizing the victim so  that Gundlah could
  strangle and stab her.  The court found that defendant did not operate
  under  coercion or duress and that he had not credibly taken responsibility
  for his participation in the  murder.  The court concluded by stating that
  "I do not yet believe [defendant has] attained that  level of judgment
  where anyone can trust [him] to be safe in society."

       An error is harmless if it does not affect substantial rights of a
  defendant.  See V.R.Cr.P.  52(a).  The harmless error doctrine applies to
  sentencing proceedings.  See State v. Corliss, ___  Vt. ___, ___, 721 A.2d 438, 445 (1998); State v. Baril, 155 Vt. 344, 349-50, 583 A.2d 621, 624 
  (1990).  In this case, defendant did not have any rights adversely affected
  because the court's  analysis of the statutory aggravating and mitigating
  factors provided an independent basis for the  decision to impose a term of
  life imprisonment.  The court properly examined all of the 

 

  statutory factors and concluded that all but one of the aggravating factors
  were present while none  of the mitigating factors were.  Only after
  concluding that all but one of the aggravating factors  were present did
  the court mention the victim's standing in the community.  These
  considerations  provide an independent basis for the sentencing decision;
  therefore, any error in considering the  victim's standing in the community
  was harmless.

                                    III.


       Finally, defendant argues that his due process rights were violated
  when he was unable to  present evidence on his own behalf because the trial
  court would not allow a juror to testify as to  the basis of the jury's
  verdict. 

       Vermont Rule of Evidence 606 provides that a juror may not testify as
  a witness at trial  in a case in which the juror is serving, nor may a
  juror testify as to any matter or statement  occurring during the course of
  deliberations or as to the effect of anything on the minds or  emotions of
  the jurors, though this does not include a situation where improper
  extraneous  information was presented to the jury. (FN2)  The State argues
  that Rule 606 prevents the  sentencing judge from allowing juror testimony
  because it would be virtually impossible to guard  against the juror
  straying into prohibited areas of testimony.
  
       We agree that the sentencing judge committed no error, though for a
  different reason.  A  sentencing judge has broad discretion over what
  information may be considered in imposing a  sentence.  See State v. Cyr,
  141 Vt. 355, 358, 449 A.2d 926, 927-28 (1982).  Here, because 

 

  sentencing is the provence of the court rather than the jury, the court may
  have concluded that the  juror testimony was irrelevant.  There was no
  abuse of discretion.

       Affirmed.

                                        FOR THE COURT:



                                        _______________________________________
                                        Associate Justice



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                                  Footnotes
  FN1.  A previous conviction was overturned in State v. Bacon, 163 Vt. 279,
    658 A.2d 54  (1995) (Bacon I), on the basis of a faulty instruction to the
    jury.  

  FN2.  Defendant was retried with a  cured instruction, and the current
    conviction resulted. Defendant points out that juror testimony was received
    in State v. Woodward, 134  Vt. 154, 353 A.2d 321 (1976); however, the
    Reporter's Notes make clear that Rule 606  changed the law that existed at
    the time Woodward was decided (i.e., the doctrine that a juror  may serve
    as a witness so long as that juror does not participate in any future
    deliberations of  the jury).  See Reporter's Notes, V.R.E. 606.