State v. Roy

State v. Roy (98-162); 169 Vt. 611; 738 A.2d 581

[Filed 13-Jul-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-162

                             JANUARY TERM, 1999

State of Vermont	               }	APPEALED FROM:
	                               }
     v.	                               }	District Court of Vermont
	                               }	Unit No. 2, Chittenden Circuit
Tyron Roy	                       }
	                               }	DOCKET NO. 3716-8-96 CnCr



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

       Defendant Tyron Roy appeals from a sentence of fourteen to fifteen
  years imposed by the  Chittenden District Court on a conviction for
  voluntary manslaughter.  Defendant claims the  State's sentencing argument
  violated the plea agreement.  Defendant also appeals the court's 
  acceptance of contested facts in the presentence investigation report (PSI)
  and the court's findings  and conclusions about defendant's prior cutting
  of the victim.  We affirm.
	
       Defendant was initially charged with first degree murder under 13
  V.S.A.  2301.  By  agreement, defendant pleaded guilty to an amended
  charge of voluntary manslaughter under 13  V.S.A.  2304.  At the change of
  plea, defendant stipulated that the police affidavit on file  provided a
  factual basis for the plea.  The affidavit indicated that the victim,
  Bradley Morris, had  assaulted defendant but was passed out "in bed" when
  defendant crawled over the victim's  female companion and stabbed the
  victim.
	
       On appeal, defendant contends that the State violated the plea
  agreement by arguing at sentencing  that the victim was "defenseless and
  unsuspecting" in bed when defendant stabbed him.   Defendant argues that
  such a scenario is factually analogous to the charge of murder and 
  therefore inconsistent with the amended charge of manslaughter.  The State
  counters that it  reduced the charge from murder to voluntary manslaughter
  on the theory that defendant had not  "cooled off" after the victim had
  assaulted him.  Thus, the State maintains that, even though the  victim was
  defenseless and unsuspecting, defendant nonetheless stabbed him in the heat
  of  passion.

       Defendant argues that the State's implication that the victim was
  asleep when he was killed  suggests a substantial passage of time between
  the victim's assault on defendant and defendant's  stabbing of the victim. 
  Indeed, voluntary manslaughter is a time-sensitive doctrine that applies 
  only where an adequately provoked individual strikes before having an
  opportunity to cool off.   See State v. Turgeon, 165 Vt. 28, 33, 676 A.2d 339, 342 (1996).  That the victim in this  instance may have fallen asleep
  does not necessarily signify the passage of a substantial amount  of time. 
  Evidence presented at the change of plea hearing demonstrated that the
  victim was very  intoxicated and had been passing out during the evening. 
  We further note that the State did not  maintain defendant had cooled off.  

       We conclude that defendant fails to establish the State's argument at
  sentencing went beyond the  bounds of a voluntary manslaughter charge. 
  Voluntary "[m]anslaughter is the unlawful killing of  another, without
  malice . . . as when the act is committed with a real design and purpose to
  kill,  but through the violence of sudden passion occasioned by some great
  provocation."  State v.  McDonnell, 32 Vt. 491, 545 (1860) (emphasis
  omitted), overruled on 

 

  other grounds by State v. Burpee, 65 Vt. 1, 25 A. 964 (1892).  Voluntary
  manslaughter does not  preclude the possibility of a defenseless victim. 
  Rather, it recognizes that a defendant does not  have the requisite mental
  state to be charged with murder.  "The element that distinguishes  murder
  from manslaughter is the presence or absence of malice."  State v. Shaw,     
  Vt.     ,      , 721 A.2d 486, 490 (1998).  The State's limited comments at
  sentencing concerning the  "defenseless and unsuspecting" victim does not
  amount to an argument that the defendant  committed a premeditated murder. 
	
       Defendant also contends that the sentencing judge failed to satisfy
  the requirements of V.R.Cr.P.  32(c)(4) by failing to make specific
  findings on the reliability of contested facts in the PSI.  At  issue were
  statements in the PSI attributed to Delma Reed, Carol Early, and Alicia
  Roy.  Under  the rule, "[t]he court must find by a preponderance of the
  evidence that a contested fact is  reliable or unreliable, or it must
  indicate that it will not take the contested fact into account  during
  sentencing."  State v. Grenier, 158 Vt. 153, 159, 605 A.2d 853, 857 (1992). 
  The State  argues that defendant failed to preserve the objection.  We
  agree.  
	
       Defendant made no express objection to the statements offered.  With
  reference to the contested  statements, defense counsel simply admonished
  the court that there are two sides to every story.   "[A]s far I'm
  concerned, the court is free to consider the comments attributed to Ms.
  Reed and  Ms. Early and Alicia.  I just wanted the court in considering
  those, to understand that there is  another side to the story."  This
  observation does not rise to the level of an objection sufficient to 
  trigger the requirements of V.R.Cr.P. 32(c)(4).  Moreover,  V.R.Cr.P
  32(c)(4) states that "[a]ny  objection to facts contained in the
  presentence investigation report shall be submitted, in writing,  to the
  court at least three days prior to sentencing unless good cause is shown
  for later  objection."  Defense counsel failed to utilize this procedural
  avenue.  The notice provision is  designed to allow the State sufficient
  time to prepare affidavits, subpoena witnesses, or otherwise  demonstrate
  the reliability of the alleged fact.  Reporter's Notes to 1989 Amendment
  V.R.Cr.P.  32. 
	
       As for the contested fact that the victim was lying in bed at the time
  the stabbing  occurred, the  sentencing judge had previously ruled on the
  reliability of the testimony provided by the victim's  female companion
  concerning that fact.  As noted above, in acknowledging the factual basis
  for  his plea of guilty to voluntary manslaughter defendant stipulated to
  an officer's probable cause  affidavit that included this supposedly
  contested fact. 
	
       Finally, defendant contests the district court's finding concerning
  defendant's prior assault of the  victim.  Although the evidence showed
  that defendant cut the victim along the jaw line, the  sentencing judge
  found that "Mr. Roy slit Brad's throat from behind in a very calculated, 
  methodical way."  (Emphasis added.)  The difference is not material for the
  purposes of  sentencing because the location of the wound inflicted in the
  knife cutting incident was not as  significant to the court as the actual
  act itself.  As the judge noted, the incident illustrates that the 
  defendant and victim's relationship was "characterized by drunkenness and
  violence and  domination of Brad by Mr. Roy."  Therefore, the court's
  mischaracterization of the location of  the cut does not warrant
  resentencing. 


 

       Affirmed.


	                               BY THE COURT:


                                       _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
                                       John A. Dooley, Associate Justice
	                              
                                       _______________________________________
                                       James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice