State v. Crannell

Annotate this Case
State v. Crannell (97-086); 170 Vt. 387; 750 A.2d 1002

[Opinion Filed 28-Jan-2000]
[Motion for Reargument Denied 14-Mar-2000]


       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. 97-086


State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.	                                         District Court of Vermont,
                                                 Unit No. 2, Rutland Circuit

Charles Crannell	                         November Term, 1999



Francis B. McCaffrey, J.

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

Robert R. Bent of Zuccaro, Willis and Bent, St. Johnsbury, Robert
  Appel, Defender General, and William A. Nelson, Appellate Attorney,
  Montpelier, and Charles A. Crannell, pro se, Jarratt, Virginia, for
  Defendant-Appellant.


PRESENT:  Dooley, Morse, Johnson, Skoglund, JJ.,and Teachout, S.J.,
          Specially Assigned.


       JOHNSON, J.   Defendant appeals from a conviction for first-degree
  murder.  He claims  that the trial court erred in failing to suppress
  evidence seized in a consent search after he had  invoked his right to
  counsel and to remain silent.  He also argues that the evidence should have 
  been suppressed because the search warrant was based on privileged
  statements and because the  police executed the warrant improperly.   He
  challenges the admission of two statements he made  and the testimony of
  his ex-wife concerning a prior crime as impermissible character evidence. 
  In  addition, he claims that the trial court improperly disregarded a pro
  se motion he filed, denied his  motion for 

 

  acquittal, and denied him a speedy trial.  Lastly, he claims he was
  improperly permitted to waive an  instruction on lesser-included offenses. 
  We find no error in the trial court's rulings and affirm.

       In the early hours of October 19, 1992, the fire department reported
  to the scene of a fire at  John Kenworthy's house in Castleton, Vermont.
  While investigating the area, the body of John  Kenworthy was discovered
  about twenty-five feet from the house, with his arms bound behind him  and
  an oil-soaked shirt wrapped around one arm.  He had been stabbed
  approximately sixty to  seventy times, his left hand had been fractured,
  and he had been hit in the head with a blunt  instrument like a hammer or
  baseball bat.  

       Police investigating the homicide learned that Kenworthy had been
  married to Sandra  Crannell from 1980 to 1982.  Sandra had recently been
  divorced from defendant, Charles Crannell.  Defendant lived in Johnstown,
  Pennsylvania, and had been attempting to reconcile with Sandra.   He drove
  a 1985 two-tone Corvette that several witnesses reported seeing in
  Castleton during the  hours immediately before and after the murder.  One
  witness saw the car as well as defendant and  described defendant as
  wearing a "watch cap."  Such a cap was discovered near the crime scene.  
  Police learned from Sandra that she had obtained a restraining order to
  keep defendant away from  her house and that he had threatened to beat up
  anyone she was dating.  Sandra also told police that  defendant refused to
  acknowledge the divorce and was depressed.   Based on this and additional 
  information, the Vermont State Police coordinated their investigation with
  Pennsylvania State  Police, and arrested defendant at his home in Johnstown
  on October 21, 1992.  

       After lengthy pretrial proceedings, a jury trial was held in October
  1995.  Defendant was  convicted of the first-degree murder of John
  Kenworthy.  After additional post-trial proceedings,  defendant appealed. 
  On appeal, defendant is represented by counsel and also filed a pro se
  brief.  

 

  Some sections of the pro se brief repeat the arguments capably made by
  counsel, and others are  inadequately briefed.(FN1)  We therefore consider
  the seven issues raised in counsel's brief along  with those issues that
  were adequately briefed by defendant.  

       Defendant, through counsel, argues that the trial court erred by: (1)
  failing to suppress  evidence obtained pursuant to a consent search of his
  home and vehicles in Pennsylvania; (2)  failing to suppress evidence
  obtained in violation of the "knock-and-announce" rule; (3) not 
  suppressing evidence obtained pursuant to the search warrant because it
  included information  subject to a marital privilege; (4) admitting
  evidence of a prior bad act and two statements related to  prior bad acts;
  (5) declining to consider defendant's pro se motion of August 1995; (6)
  failing to  grant defendant's motion for acquittal; and (7) failing to
  grant defendant's speedy-trial motion.   Additionally, in his pro se brief
  defendant claims that the court erred by: (1) failing to suppress the 
  fruits of the Pennsylvania search because police improperly elicited an
  incriminating response; (2)  failing to suppress the fruits of the
  Pennsylvania search because the warrant application contained  false and
  inaccurate information; (3) failing to suppress the fruits of the
  Pennsylvania search  because the identifications supporting the warrant
  application were obtained by a suggestive  procedure; (4) failing to excise
  all Sandra Crannell statements from the search warrant application  because
  the marital privilege applied between August 1992 and 1995; (5) failing to
  grant  defendant's motion for a new trial based on evidence that another
  person admitted to writing some  letters; and 

 

  (6) permitting him to waive an instruction on lesser-included offenses.  We
  address each of these  issues in turn.  (7)  

                            I. The Consent Search

       Defendant first contends that his consent to search his pick-up truck
  on October 21, 1992,  was obtained in violation of his rights under Miranda
  v. Arizona, 384 U.S. 436 (1966), and  Edwards v. Arizona, 451 U.S. 477
  (1981).(FN2)  He claims that because he was asked to consent  after having
  asked for counsel, the evidence seized should have been suppressed.  
  Defendant  separates the information  on the consent to search form into
  two distinct statements: (1) consent to  search and (2) an admission that
  he owned the pick-up truck.  He argues, in essence, that any  question
  asked after a defendant has invoked one of the Miranda rights is improper
  interrogation  and that the request for consent to search violated his
  rights because: (1) it was interrogation, and  (2) it elicited  testimonial
  information that he owned the truck.  

       On October 21, 1992, two days after the murder, the Pennsylvania State
  Police, acting on  information they had gathered, as well as information
  provided by the Vermont State Police,  obtained a warrant to search
  defendant's Corvette and apartment in Johnstown, Pennsylvania.  The  trial
  court found the following facts.  Ten or eleven Pennsylvania police
  officers arrived at  defendant's residence at 9:25 p.m. on October 21.  
  They announced their presence, waited briefly,  and then entered the
  apartment.  Defendant declined to accompany them while they searched.  One 
  of the officers read defendant his Miranda rights from a card.  When asked
  if he understood those  rights, defendant indicated that he did.  Defendant
  was then asked if he wished to waive those  rights; 

 

  he indicated that he did not wish to waive his rights and asked to speak
  with an attorney.  The  Pennsylvania officers did not ask defendant
  questions after he invoked his right to counsel.

       Vermont State Police officers Boutin and Yustin arrived at defendant's
  residence at about  11:00 p.m.  Officer Boutin was advised that defendant
  had been informed of his Miranda rights and  had invoked his right to
  counsel.  Boutin was also told that the Pennsylvania officers had observed 
  an awl in the back of defendant's pick-up truck but that the search warrant
  did not permit them to  search the truck.  Boutin then informed defendant
  who he was and why he was there, and told him  that he wanted to search the
  pick-up truck.  Defendant responded "to the effect that, if he did not 
  agree to the search, the officers would simply obtain a search warrant in
  any event."   Boutin  answered that the police might or might not be able
  to get a warrant.  Defendant then consented to  having the truck searched,
  signing a consent form in the presence of several witnesses.  The consent 
  form as completed by defendant stated: 

     I, Charles Crannell, have been requested by Gary Boutin of the VSP to
     give my  consent for the police officer to search places, item(s) or
     vehicle(s) described above  for the item(s) also described above.  I 
     have been told that I do not have to give my  consent.  I understand 
     that I have the right to refuse, [sic] this request and that the  
     police may not be able to conduct this search without a search warrant 
     unless my  written consent is given, none the less, I voluntarily give 
     my written consent to the  police to conduct this search. I'am [sic] 
     the owner of the vehicle(s) to be searched. 

  Defendant initialed next to the line stating "I'am [sic] the owner of the
  vehicle(s) to be searched."   Police searched the truck and seized the awl,
  which was later admitted into evidence at trial.  

       Defendant moved to suppress the fruits of the search before trial,
  arguing that the request  for consent violated his rights to silence and
  assistance of counsel.  The trial court denied the  suppression motion,
  holding that the request was not custodial interrogation and that the
  consent  given was not testimonial or communicative for purposes of the
  Fifth Amendment.  Defendant 

 

  appeals that denial.  We review the trial court's decision to admit
  evidence for abuse of discretion.   See State v. Powers, 163 Vt. 98, 100,
  655 A.2d 712, 713 (1994). 

       Defendant's argument hinges upon the decision in United States v.
  Taft, 769 F. Supp. 1295  (D.Vt. 1991).  There, the court held that it was
  impermissible to seek consent to a warrantless  search after a suspect had
  asserted his right to counsel. See id. at 1305. While it is true that
  Edwards  prohibits custodial interrogation once a request for counsel has
  been made, see 451 U.S.  at 485, the  United States Supreme Court has
  defined "interrogation" as behavior by police officers that "they  should
  have known was reasonably likely to elicit an incriminating response."  See
  Rhode Island v.  Innis, 446 U.S. 291, 301-02 (1980).  Therefore, the issue
  here is whether either the request for  consent to search, or the question
  about ownership of the truck, was designed to elicit an  incriminating
  response.

       Defendant relies on the Taft decision in asserting that his consent to
  search was improperly  obtained.  This decision is in conflict with the
  overwhelming weight of authority holding that  requests for consent are
  permissible because they do not elicit an incriminating response.  In fact, 
  the Taft court contravened Second Circuit precedent, which holds that a
  request for consent to  search does not violate Fifth Amendment rights. 
  See, e.g., United States v. Faruolo, 506 F.2d 490,  495 (2d Cir. 1974)
  ("There is no possible violation of fifth amendment rights since the
  [defendant's]  consent to search is not 'evidence of a testimonial or
  communicative nature.'" (citation omitted)).   The federal courts of appeal
  agree that a defendant's consent to search is not an incriminating 
  response and therefore a request for consent is not "interrogation" subject
  to limitation by Edwards.  See United States v. McClellan, 165 F.3d 535,
  544 (7th Cir. 1999); United States v. Smith, 3 F.3d 1088, 1098 (7th Cir. 

 

  1993) (collecting cases); see also United States v. Hidalgo, 7 F.3d 1566,
  1568 (11th Cir. 1993);  United States v. Rodriguez-Garcia, 983 F.2d 1563,
  1568 (10th Cir. 1993); Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir. 1985);
  H. Pizzetta, III & A. Gambhir, Twenty-Fourth Annual Review of  Criminal
  Procedure: Custodial Interrogations, 83 Geo. L.J. 802 (1994) (collecting
  cases). We agree  with the trial court that the request for consent to
  search did not violate Edwards.

       Second, defendant claims that his consent to search contained a
  testimonial or  communicative aspect about his ownership of the truck. 
  Defendant argues that he was asked to  acknowledge that he owned the truck,
  that this element of the consent was testimonial, and formed  part of the
  basis to link the awl to him.  

       Assuming, without deciding, that acknowledging ownership of a vehicle
  through a consent  to search form is testimonial information, we hold that
  it is not sufficiently testimonial to create a  Fifth Amendment violation. 
  The prohibition on compelling "testimonial" evidence is subject to a  de
  minimis exception: the compelled act must be "sufficiently testimonial" to
  implicate the  privilege against self-incrimination.  See Fisher v. United
  States, 425 U.S. 391, 411 (1976).  For  example, although "[w]hen an
  accused is required to submit a handwriting exemplar he admits his  ability
  to write and impliedly asserts that the exemplar is his writing," these
  acts are not  "sufficiently testimonial" to invoke the Fifth Amendment. 
  Id.  According to the Fisher Court,  where the relevant testimonial
  component is a "foregone conclusion," then the testimonial aspect of  the
  act of production is not protected by the Fifth Amendment.  Id.  Here, the
  alleged testimonial  value of an acknowledgment of ownership implicit or
  explicit in defendant's consent to search was  not sufficiently testimonial
  to distinguish this case from Fisher.   Defendant's ownership of the  truck
  was a foregone conclusion.

       In the instant case, any acknowledgment of defendant's ownership in
  the consent to search 

 

  was cumulative to properly admitted evidence.  The defense itself elicited
  testimony from Sandra  Crannell that defendant owned a pick-up truck with
  Vermont license plates before any of the State's  witnesses addressed the
  issue.  Where the connection between defendant and the pick-up truck was 
  proven through proper means, the verdict is supported by properly admitted
  evidence, and no  reversal is required.(FN3)  See State v. Fitzgerald, 165 
  Vt. 343, 346, 683 A.2d 10, 13-14  (1996) (even if  error, where defendant's
  statement was cumulative to proper evidence, admission of statement is 
  harmless) .
 
                     II.  The "Knock-and-Announce" Rule
	
       Defendant next argues that the Pennsylvania police failed to comply
  with the "knock-and-announce" rule.  This rule is derived from the Fourth
  Amendment's requirement of reasonableness  and mandates that officers must
  knock and announce their presence before entering a dwelling  pursuant to a
  search warrant.  See Wilson v. Arkansas, 514 U.S. 927, 936 (1995).  The
  trial court  heard defendant's pretrial motion to suppress and made the
  following findings of fact.   Pennsylvania Officer Stephen and nine or ten
  other officers arrived at defendant's residence at 9:25  p.m. on October
  21, 1992, with a search warrant.  Officer Stephen was the lead officer.  He 
  knocked at the door to defendant's basement apartment and announced his
  name.  He said he was  with the state police and that he had a search
  warrant.  Stephen then heard rustling noises and  waited approximately ten
  seconds, then opened the unlocked door.  It is therefore plain that the 
  officers did 

 

  knock and announce their authority and purpose.  Defendant seems to object
  solely to the fact that  Stephen did not wait until defendant opened the
  door.  

       Police officers are, of course, permitted to enter a dwelling to
  execute a warrant where they  have announced their purpose and the
  occupants of the dwelling refuse them entry.  Refusal may  take many forms
  but certainly includes failure to respond to the knock-and-announce within
  a  reasonable period of time.  As many courts have found, a "reasonable
  time is ordinarily very brief."  United States v. James, 528 F.2d 999, 1017
  (5th Cir. 1976).  Several courts have found that a delay  of ten seconds or
  so may reasonably be interpreted by police officers as constructive refusal
  of  entry.  See United States v. Knapp, 1 F.3d 1026, 1031 (10th Cir. 1993)
  (ten-to twelve-second  interval plausibly considered a constructive
  refusal); United States v. Bonner, 874 F.2d 822, 825  (D.C. Cir. 1989)
  (given small apartment and early evening hour, ten-second delay was
  "particularly  probative of refusal").   

       In this case, in addition to hearing no verbal response from
  defendant, the police officers  heard "rustling" noises and testified at
  trial that they feared evidence might be destroyed.  As the  United  States
  Supreme Court acknowledged in Richards v. Wisconsin, 520 U.S. 385, 394
  (1997),  the rule may be dispensed with where the police have a reasonable
  suspicion that delaying entry  would allow the destruction of evidence. 
  Although defendant argues that he could not easily  destroy or dispose of
  the physical evidence such as tools, his hair, or his car, we note that the 
  officers heard noises indicating an occupant was near the door yet had not
  responded.  Those noises  might signal some kind of tampering with or
  destruction of evidence such as clothing or papers.   

       Further, we have previously held that where "[t]he officers . . .
  complied with the knock and  announce rule . . . we fail to see why we
  should go further than the rule requires."  State v. Meyer, 
 
 

  167 Vt. 608, 609, 708 A.2d 1343, 1345  (1998) (mem.) (holding search proper
  where police entered  unoccupied home after knocking and announcing).  In
  the circumstances of this case, where the  police knocked and announced
  their presence, defendant did not verbally respond, and police  officers
  heard rustling noises, we cannot say that the entry was unjustified or
  unreasonable. 
 
                III.  Statements Subject to Marital Privilege
	
       Defendant next claims that the search warrant obtained by the
  Pennsylvania State Police  was based in part on statements made to the
  Vermont State Police by Sandra Crannell that should  have been excised
  because they were subject to a marital privilege.  He relies on V.R.E. 504,
  which  provides that a person has a privilege to prevent his spouse from
  disclosing confidential  communications made while they were lawfully
  married.  He further claims that once those  statements are excised, the
  affidavit fails to provide probable cause for a warrant to issue.  

       Defendant was married to Sandra from October 18, 1990 to August 11,
  1992 (the expiration  of the nisi period for their no-fault divorce).
  Defendant identifies five of Sandra's statements  contained in the search
  warrant application that he claims violated the marital privilege: (1) in
  late  August 1992, defendant refused to acknowledge the divorce and
  threatened to beat up anyone who  was dating her; (2) before the marriage,
  defendant told her he had blown up a car with a bomb and  was apprehended
  only because he failed to destroy evidence;  (3) before the marriage,
  defendant  told her about methods for killing someone and for concealing
  the crime; (4) defendant, when asked  by Sandra if he had ever killed
  anyone, answered "there are just some things you never talk about";  and
  (5) defendant had written to Sandra in August 1992 saying he was depressed
  and that she was  his whole life.  

       Defendant made statement 1 to Sandra in a telephone call during the
  week of August 21, 

 

  1992, after the divorce became final on August 11, 1992.  Defendant points
  to the fact that he  attacked the divorce decree in August 1992 and that in
  September 1993 that decree was set aside.   (The Crannells were later
  divorced a second time.)  He claims that the set-aside divorce decree of 
  August 1992 did not end their marriage and therefore his statements were
  made during a lawful  marriage. This argument would affect only the
  admission of statement 1, made after August 11,  1992.  Since this
  information was also contained in Sandra's application for the restraining
  order  and was therefore public record, we cannot see how the statement is
  privileged.  We think it  determinative that at the time the statement was
  made, the divorce, which defendant had initiated  and sought, had become
  final by order of the Family Court and therefore any reliance on a marital 
  privilege was patently inappropriate.  See Reporter's Notes, V.R.E. 504
  (rule encourages  confidential communications made "in reliance on the
  existence of the [marital] relationship.")  Therefore, no marital privilege
  applies.  Thus, no excision was needed and the statement properly  formed
  part of the probable cause for the search warrant.

       Statements 2 & 3 were found by the trial court to have been made to
  Sandra before the  marriage.  Therefore, these statements were not subject
  to a marital privilege and properly formed  part of the basis for probable
  cause. 

       Because Sandra testified that she could not remember whether statement
  5 was made before  or after the divorce became final, we assume for
  purposes of our analysis that statements 4 and 5  were made during the
  marriage and should therefore have been excised from the search 
  warrant.(FN4)  Exclusion of these statements, however, does not
  automatically render the probable  cause finding 

 

  improper.(FN5)   See State v. Morris, 165 Vt. 111, 129,  680 A.2d 90, 102
  (1996) (where some  evidence in affidavit must be expunged, court may
  determine whether remaining information  established probable cause for
  issuance of warrant). 

       Probable cause to search exists when the information in an application
  for a warrant leads a  judicial officer " [to] reasonably conclude that a
  crime had been committed and that evidence of the  crime will be found in
  the place to be searched."  Id.   In this case, a murder had plainly been 
  committed, and several witnesses saw defendant's car in the area before and
  after the murder.  One  witness described defendant as wearing a watch cap,
  and such a cap had been found near the crime  scene.  Furthermore,
  defendant's conviction for bombing a car in Florida was a matter of public 
  record, as well as the restraining order obtained by Sandra because she
  feared he would hurt her or  someone she dated.  Even absent Sandra's
  statements to the police, the nexus between defendant  and the crime was
  well-supported.  Given that statements 1, 2, and 3 were properly included
  in the  affidavit, the affidavit established probable cause without the two
  statements possibly made during  the marriage.(FN6)  Thus, any error in
  including those statements was harmless.   See State v.  Wright, 154 Vt.
  512, 531, 581 A.2d 720, 731 (1989) (assuming admission of statements
  violated  marital 

 

  privilege, error was harmless as outcome of trial would have been same).   

                  IV. Suggestive Identification Procedures

       Defendant's pro se brief makes a number of arguments, which boil down
  to claims that the  Vermont State Police used improperly suggestive
  techniques when asking witnesses to identify  defendant and defendant's
  Corvette from photographs.  Defendant points out some inconsistencies 
  among statements made by various witnesses and asserts that some witnesses
  fail to state some  information he thinks important.  A number of these
  arguments were not raised before the trial  court and therefore have been
  waived. 

       Specifically, defendant first takes issue with an alleged error in the
  search warrant  application, which revealed that witness Sam McCormick
  stated he pumped gas into a blue  Corvette on October 17, 1992.(FN7) 
  Defendant points out that McCormick's written statement  does not mention
  the color blue.  This claim was not raised below and therefore has been
  waived.   See Morais v. Yee, 162 Vt. 366, 372, 648 A.2d 405, 410 (1994).

       Defendant also argues that McCormick's identification of defendant's
  Corvette was the  result of an impermissibly suggestive identification
  procedure.  The crux of his claim is that the  police should have shown
  witnesses pictures of several Corvettes of different colors.  We can find 
  no support for his claim, either within Vermont or elsewhere.  Courts that
  have considered such a  claim have rejected it.  See Commonwealth v.
  Simmons, 417 N.E.2d 1193, 1196 (Mass. 1980)  (danger of fundamental
  unfairness greater with personal identification, since identification of 
  property is only 

 

  indirect proof of guilt and tangible objects are rarely
  unique);Commonwealth v. Carter, 414 A.2d 369, 373 (Pa. Super. 1979)
  (identification of real evidence does not carry "enormous probative 
  weight" of personal identification, and therefore does not require same
  precautions; any  suggestiveness goes to weight of evidence, not
  admissibility); Inge v. Commonwealth, 228 S.E.2d 563, 567 (Va. 1976)
  (one-on-one identification of a vehicle present questions of weight and 
  credibility, not an admissibility question of constitutional dimensions),
  upheld in pertinent part by  Inge v.  Procunier, 758 F.2d 1010 (4th Cir. 
  1985). Therefore, we decline to create a rule requiring  police to provide
  a photo array of an object such as a car.  

       Next, defendant argues that the identifications of witnesses John
  Alexander and Michael  Bruno should have been excised because the tinted
  windows of defendant's Corvette would have  prevented them from seeing
  inside the car. Alexander saw the Corvette at midnight, pulled off the 
  road near Kenworthy's home.  Bruno saw the Corvette at about 3:00 a.m.,
  being driven away from  Kenworthy's area at high speed.  This issue was not
  raised below and is waived; additionally,  defendant failed to assert that
  the false statement was made knowingly, intentionally or with  reckless
  disregard for the truth.  See State v. Demers, 167 Vt. 349, 353, 707 A.2d 276, 278 (1997).   Defendant further claims that Alexander's and Bruno's
  identification of defendant's Corvette was  prompted by the suggestive
  procedure of showing each witness a single picture of defendant's car.  
  This claim is meritless, as explained above.

       Finally, defendant takes issue with the use of statements by witness
  Timothy Matthews in  the warrant application.  Matthews saw a man and a car
  in a parking lot near Kenworthy's home.   Matthews described the man as
  wearing a long coat, boots and a watch cap.  He described the car 

 

  as a light-blue Corvette with Florida license plates, bearing the number
  ZAZJ29.(FN8)  Defendant  argues that Matthews did not know whether the man
  and the car were connected and therefore did  not establish probable cause. 
  A finding of probable cause is based on the totality of the  circumstances,
  not on a single piece of evidence or a single witness's observations.  See
  id. at 355,  707 A.2d  at 279.  Matthews's observations were but a part of
  the evidence provided to establish  probable cause and, taken in
  conjunction with the other sightings of the Corvette as well as a man 
  matching defendant's description, the application did show probable cause.

                        V. Evidence of Prior Bad Acts

       Defendant claims that three pieces of evidence admitted at trial were
  used as impermissible  character evidence.  He relies on V.R.E. 404(b),
  which 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."  Defendant's argument points to two
  statements he made that were admitted  through the testimony of his
  ex-wife, Sandra, and the testimony of a former co-worker, James  Ramosca. 
  Defendant characterizes the statements as "acts" that were used by the
  State as character  evidence.  In addition, defendant points to Sandra's
  testimony about a car-bombing defendant  claimed to have committed.  We
  address the statements first, which do not require Rule 404  analysis, and
  then turn to the bona fide "bad act" evidence admitted, the testimony about
  the car-bombing.

                         A. The "Hit Man" Statement

       At trial, the State introduced evidence that defendant had written a
  number of letters to  Sandra before, during, and after their marriage.  The
  State used Sandra to authenticate a number of 

 

  handwritten letters by identifying defendant's handwriting and also
  identifying specific letters she  had received.  Dozens of handwritten
  letters were admitted into evidence over the two-day period  of Sandra's
  testimony.  They were not published to the jury at the time; the jury was
  permitted to  review them during deliberations.    

       One of the letters written to Sandra before the marriage and admitted
  into evidence  contained the following statement: "my greed for the all
  mighty dollar might have led me down the  path of a professional hit man. 
  I was on my way."  The context of the statement was defendant's  assertion
  that God, through Sandra, had intervened in his life and kept him from that
  path.    This  statement was never read aloud to the jury; no one ever
  quoted it.  Indeed, it was buried in the many  letters admitted and would
  have required the jury to pick out that single statement and seize upon it. 
  While the State referred to several letters in its closing argument, it did
  not refer to this letter.

       Defendant claims that the admission of the "hit man" letter caused
  irremediable prejudice  and forms ground for reversal.  Defendant claims
  that this statement, along with the ice-pick  statement discussed below,
  were "spun together to portray" defendant as a professional killer. 

       We will reverse a trial court's decision to admit evidence only if the
  court withheld or  abused its discretion.  See State v. Powers, 163 Vt. 98,
  99-100, 655 A.2d 712, 713 (1994).  The  statement at issue is not an "act"
  within the usual meaning of Rule 404; it is merely a statement  defendant
  wrote.  The statement does not reveal any prior misconduct such as Rule 404
  forbids.  It  reflects only defendant's state of mind and not any crime or
  wrong committed by defendant in the  past.  Defendant was commenting on
  what might have been, and attributing to Sandra the power to  help him. 
  Therefore, Rule 404 does not apply.  See United States v. Mixon, 185 F.3d 875, 1999  WL 436269 at *9 (10th Cir. 1999) (Rule 404 argument was "off the
  mark" because statement that  witness 

 

  thought defendant was selling drugs again was not bad act evidence, but
  rather testimony of her  state of mind); Hicks v. State, 690 N.E.2d 215,
  221 & n.11 (Ind. 1997) (where defendant said he  wanted and wished victim
  would die, those statements were admissible because "they are not  evidence
  of 'other crimes, wrongs, or acts'"); Massey v. State, 933 S.W.2d 141, 154
  (Tex. Crim.  App. 1996) (where testimony concerned defendant's thoughts
  rather than conduct, Rule 404 was  not implicated); Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993) (inchoate thoughts  about desire to
  kidnap and kill someone were not excludable under Rule 404(b)).  

       Therefore, the test of admissibility is simply whether the evidence
  was relevant and not  unduly prejudicial.  See V.R.E. 402 & 403.  Overall,
  defendant's letters to Sandra were relevant  because they suggested a
  motive for the killing, by illustrating defendant's desire to reconcile
  with  Sandra and his conviction that they belonged together.  Given that
  the statement about potentially  becoming "a hit man" was buried in one of
  many letters and was not emphasized in any way to the  jury, we cannot
  conclude that its admission was unduly prejudicial. 

                         B. The "Ice-pick" Statement

       James Ramosca, a former co-worker of defendant's, testified at trial
  about statements that  defendant had made to him.  In 1990 or 1991, Ramosca
  testified, defendant had said "he would not  hesitate to take someone out
  if necessary" and that he would "take the ice pick, stick it through 
  someone's brain."  This was the full extent of the "ice-pick"comment.  The
  State did not mention  Ramosca or his testimony in its closing argument. 
  As with the "hit-man" letter, the statement at  issue is not an "act"
  introduced to show the character of defendant in violation of Rule 404; it
  is  simply a statement that defendant made.  The statement does not reveal
  any prior misconduct; it  merely reflects defendant's state of mind. 
  Therefore, Rule 404 does not apply and the trial court 

 

  erred in analyzing the "ice-pick" comment under the stringent requirements
  of whether the prior  comment provided identity evidence or demonstrated a
  "signature" crime.  The test for  admissibility is whether the evidence was
  relevant and not unduly prejudicial.  See V.R.E. 402 &  403.
	
       The State's theory of the case was that defendant was desperate to
  reconcile with Sandra and  jealous of Kenworthy, who had been spending time
  with her.  The State put on evidence that  showed the numerous stab wounds
  inflicted on Kenworthy could have been caused by a slender,  sharp, rounded
  weapon, like an ice-pick or an awl, such as was found in defendant's truck. 
  The  evidence may have shown that the murder was first attempted with the
  quick method of a sharp,  pointed object into the brain, consistent with
  the small stab wounds to the skull.  This method  plainly did not succeed
  and the evidence was consistent with an interpretation that the murderer
  had  become enraged and vindictive, explaining the multiple stab wounds and
  blunt-object trauma to the  head.

       Ramosca's testimony that defendant would not hesitate to take someone
  out with an ice-pick to the brain was relevant as tending to show a
  familiarity with a tool possibly used in the  murder, although the style of
  the murder was not identical to that defendant described to Ramosca.   The
  fact that the murder was not accomplished exactly as defendant suggested
  does not make  irrelevant defendant's professed willingness to use a tool
  such as an ice-pick to kill someone.  As  this evidence was relevant, it
  was properly admitted unless it was unduly prejudicial.  

       We have held that evidence is unfairly prejudicial if its primary
  purpose is to appeal to the  jury's sympathies, arouse a sense of horror,
  provoke its instinct to punish, or cause the jury to base  its decision on
  something other than the established propositions of the case.  See State
  v. Little,  167 Vt. 577, 579, 705 A.2d 177, 180 (1997) (mem.). This
  evidence was not explicit or graphic; it  could not be more disturbing than
  the photographs of wounds caused by an instrument like an ice-pick, 

 

  which were shown to the jury in the autopsy photos.  This evidence does not
  "rise to the level of  provoking a jury to return a verdict based on its
  emotional reaction."  Id.  Thus, the trial court's  admission of the
  statement was not an abuse of discretion.

       Ramosca also testified that defendant had bragged to him about being a
  hit man.  Although  this testimony was immediately struck and the court
  gave a curative instruction, defendant claims in  his pro se brief that
  this statement requires a new trial.  This court has long upheld the
  efficacy of  curative instructions.  See State v. LaBounty, 168 Vt. 129,
  140, 716 A.2d 1, 8 (1998).  In  LaBounty, as in this case, the
  objectionable comment was brief and the court's response was  immediate and
  unequivocal.  See id.  Therefore, we find no abuse of discretion in the
  trial court's  determination that defendant was not unduly prejudiced by
  the stricken evidence. 

            C.  Sandra Crannell's Testimony About the Car-Bombing

       Sandra Crannell testified on the second and third days of trial. 
  Ultimately, she was  permitted to testify about her belief that defendant
  had bombed a truck in Florida some time before  she met him.  The trial
  court originally excluded this evidence but then ruled it admissible on 
  rebuttal. This testimony must be analyzed under Rule 404(b), as the bombing
  is a bona fide "bad  act."  Defendant argues that this testimony should
  have been excluded under Rule 404(b) as  evidence of a prior bad act
  introduced solely to show that defendant acted in conformity with a 
  criminal character, and that he did not invite the evidence by
  cross-examination.  Defendant further  argues that the introduction of this
  evidence was so unduly prejudicial that reversal is the only  remedy.  

       The testimony must be considered in its full context to understand the
  potential influence it  had on the jury.  Sandra testified that on August
  21, 1992, defendant called her from Pennsylvania  and said he was going to
  come to her house in Vermont.   She told him she would not let him in but 

 

  he insisted he was going to see her.  After receiving this telephone call,
  she sought a restraining  order.  John Kenworthy went with her and helped
  her request the order.   She testified that she was  scared, both for
  herself and John, because defendant had threatened to "kick [the] ass of
  anybody  that [she] went with or came around [her] place."  She further
  testified that defendant came to her  house on August 22,  the morning
  after his telephone call.  He came to the door and pleaded with  her to let
  him in.  She refused his repeated pleas, and then he went to the back of
  his pick-up truck.   She suspected he was getting tools from the truck
  because he worked as a telephone lineman. She  called the State Police and
  asked them to come to her assistance, and then the telephone line went 
  dead.   When the police arrived, they found defendant still outside and
  told him he had to leave the  property as Sandra had obtained a restraining
  order.  They may have instructed him to re-connect  her telephone line
  because, defendant called her on the telephone ten minutes later. 
  Defendant was  angry because Sandra had gotten a restraining order. 

       Defense counsel vigorously cross-examined Sandra, asking first whether
  defendant had  been affectionate toward her.  Counsel then asked a series
  of questions asserting that defendant had  never assaulted her before,
  during, or after the marriage.  Defense counsel also cross-examined  Sandra
  about the letters defendant had sent, asking, "they weren't threatening
  letters, were they?"   Then defense counsel asked about the August 22
  incident, insisting defendant "didn't try to come  in, break in, nothing
  like that, correct?"  Counsel continued in the same vein: "Didn't assault
  you,  didn't threaten you, none of that?"  Sandra agreed with his
  questions.   Then defense counsel asked  whether she remembered that
  defendant had called to apologize.  Sandra answered, "He didn't  apologize
  . . . .  He was very angry with me."   

       A few moments later defense counsel returned to the same theme, asking
  "[I]n that 

 

  conversation [when defendant threatened to beat people up], he didn't
  threaten to kill anybody, did  he?"  Sandra said she did not interpret it
  that way.  Then defense counsel asked whether the "I'm  going to kick their
  ass" comment could have been expressed in "a moment of anger? [or a] Moment 
  of dissatisfaction?" Sandra replied, "I thought it was very unfair of him
  to feel that way." 

       In chambers, the State's Attorney argued that the cross-examination
  had painted Sandra as  over-reacting and/or lying about her fear of
  defendant and asked permission to rehabilitate her by  allowing her to
  testify about her knowledge of his involvement in a car-bombing. Defense
  counsel  argued that the information was too prejudicial and that the
  cross-examination had not opened the  door to questions of Sandra being
  unreasonably afraid.   The court concluded that although the  evidence had
  originally been excluded as unduly prejudicial, the cross-examination by
  defendant  had created an incomplete picture that the State was entitled to
  complete.  The court noted the series  of questions asked by defense
  counsel about her fear and defendant's threats.  Therefore, the court 
  admitted the evidence for rehabilitative purposes "to give a complete
  picture of what her state of  mind was and what the reasonableness of her
  fear was."  The court limited the information to what  Sandra had learned
  from defendant and barred any information about whether the bombing
  actually  happened or whether defendant was convicted.   

       Sandra testified that she was frightened of defendant because he had
  told her that he had  been asked to bomb a truck for $5,000 and had done
  it.  The court immediately instructed the jury  that the evidence had been
  introduced only for their consideration of whether Sandra reasonably 
  feared defendant when she obtained the restraining order.  The court
  further instructed "you may  not consider it as tending to show in any way
  the defendant's guilt for the offense for which he is  now on trial."  

 

       After the conclusion of the trial, defendant moved for a new trial
  based on the allegedly  improper admission of Sandra's testimony, as well
  as other errors.  In its order denying a new trial,  the trial court noted
  that evidence of a prior bad act may be admitted, as it was in this case,
  in order  to rehabilitate a witness.  The court went on to explain:

    In this case, Sandra Crannell was a critical witness.  Her testimony
    presented  evidence for the motive of the crime.  Through Sandra Crannell,
    the State sought to  prove that the Defendant was obsessed with continuing
    his relationship with her and  killed John Kenworthy because he believed
    Mr. Kenworthy stood in the way of a  reconciliation.  Sandra Crannell was
    the only witness to the Defendant's behavior  toward her and her testimony
    was important.  The Defense's cross-examination  painted an incomplete
    picture of the Crannell[s'] relationship by making Sandra  Crannell appear
    over-reactive and untrustworthy. 


       In reviewing the trial court's admission of evidence under Rule 404,
  we must decide  whether the admitted evidence satisfied Rule 403, that is,
  was relevant and material, and if so,  whether the introduction of the
  evidence was so prejudicial to defendant as to outweigh its  probative
  value.   See State v.  Bruyette, 158 Vt. 21, 31-32, 604 A.2d 1270, 1275
  (1992).  Although  defendant claims that Rule 404 acts as an absolute bar
  to any evidence of prior bad acts, we have  noted that "[t]he rule
  recognizes that evidence that may be inadmissible for the [purpose of
  showing  propensity] may be admitted for other permissible purposes."   See
  State v. Recor, 150 Vt. 40, 44,  549 A.2d 1382, 1386 (1988).  

       Defendant failed to object to Sandra's testimony about obtaining the
  restraining order.  In  the context of the actual trial, defendant
  apparently did not consider the evidence so prejudicial that  it warranted
  an objection.  Therefore, we cannot accept defendant's argument that the
  prosecution  opened a door by suggesting that defendant assaulted Sandra. 
  Rather, it was the defense cross-examination attacking Sandra's testimony
  about defendant's frightening jealousy that opened the 

 

  door.  Thus, the State appropriately requested permission to complete the
  picture by eliciting  Sandra's basis for fearing defendant.

       In admitting the evidence, the trial court relied on Recor, 150 Vt. at
  44, 549 A.2d  at 1386.    There, a witness alleging that her step-father had
  sexually assaulted her had been instructed not to  mention a previous
  incident of alleged assault.  On cross-examination, the defense suggested
  that  the witness was biased against the defendant and had been for some
  time.  Due to that attack, the  court permitted the State to elicit
  information about the earlier assault to explain that the witness's  bias
  was reasonable. See id. at 45, 549 A.2d  at 1386.   The witness then
  testified that she had hated  the defendant for several years because he
  had sexually assaulted her in 1982.  There, as here,  "[d]efense counsel
  sought to impeach the credibility of the [] witness by painting an
  incomplete  picture of unwarranted bias.  The State's response was to
  complete this picture with appropriate  detail.  The purpose of the
  witness'[s] testimony on redirect, thus, was not to establish the character 
  of the defendant."  Id. at 44, 549 A.2d  at 1386.  See also People v.
  Greenhagen, 433 N.Y.S.2d 683,  685 (N.Y. App. Div. 1980) (affirming
  admission of witness's testimony that defendant tried to  molest her as
  rehabilitating her credibility after cross-examination had accused her of
  bias). 

       The facts in this case are quite similar to those in Recor.  Sandra
  had been instructed not to  mention the Florida bombing and had offered
  other reasons for her fear of defendant's jealousy.   Defense counsel
  attacked her on cross-examination, repeatedly asking her whether defendant
  had  assaulted her, whether he had threatened other people, whether he had
  broken into her house.  The  court, able to gauge the impact of this
  questioning at the time, felt that the defense had depicted  Sandra as
  "over-reactive and untrustworthy."  For the limited purpose of responding
  to the attack on  her credibility, the court allowed her to testify that
  she feared defendant because he had told her he 

 

  had bombed a truck in Florida.  The court then instructed the jury not to
  consider the evidence as  showing defendant's character or propensity to
  commit the crime at issue.  As in Recor, the State's  response was
  necessary to complete the picture painted by the defense.

       Other courts have also held bad-act evidence to be admissible for
  rehabilitative purposes.   See State v. Harris, 560 N.W.2d 672, 677 (Minn.
  1997); State v. McNeill, 700 N.E.2d 596, 603  (Ohio 1998).  Others have
  assumed that it would be admissible in such circumstances.  See State v. 
  Montgomery, 740 A.2d 625, 627 (N.H. 1999) ("Had the defendant, for example,
  'opened the door'  by directly challenging his daughters' inability to
  recall particular details about the charged sexual  assaults, the State may
  well have been able to use the uncharged sexual assaults to rehabilitate
  its  witnesses.").  In this case, the witness whose credibility was
  challenged testified about crucial facts  suggesting a motive for the
  crime.  The testimony was carefully limited in scope and immediately 
  followed by a limiting instruction. We cannot say that the trial court
  abused its discretion in  admitting the evidence for rehabilitation
  purposes. 

                VI.  Defendant's Pro Se Motion of August 1995

       Defendant next claims that the trial court failed to exercise its
  discretion by refusing to  consider a motion filed by defendant pro se.  As
  we have recognized, "'a criminal defendant does  not have an absolute right
  to both self-representation and the assistance of counsel.'"  State v.
  Sims,  158 Vt. 173, 185, 608 A.2d 1149, 1156 (1991) (emphasis in original)
  (quoting United States v.  Halpert, 640 F.2d 1000, 1009 (9th Cir. 1981)).
  Defendant concedes, however, that the trial court has  complete discretion
  in managing hybrid representation.  As a court has the discretionary right
  to  deny hybrid representation, it has the corollary discretionary right to
  control any hybrid  representation it does permit.  Id. (citing United
  States v. Nivica, 887 F.2d 1110, 1121 (1st Cir.

 

  1989)).  The record reveals that the court considered the fact that hybrid
  representation is generally  not allowed, and considered the specific
  circumstances in this case.  The court noted: "[h]ere, the  Defendant is
  represented by counsel.  He has not waived his right to counsel nor has he
  requested to  proceed pro se.  He may not therefore initiate proceedings
  without following standard court  procedure.  In this case, court procedure
  mandates that all motions and pleadings be submitted by  his attorney." 
  The trial court weighed the issues at stake in hybrid representation and
  made a  decision based on the specific facts of the case.  There was no
  abuse or withholding of discretion.

                          VI. Motion for Acquittal

       Defendant claims on appeal that his motion for acquittal was
  improperly denied.  Although  he moved for a judgment of acquittal at the
  end of the State's case, he did not renew this motion at  the close of the
  evidence, thereby waiving his objection.  See  V.R.Cr.P. 29(a); Reporter's
  Notes to  Rule 29 (failure to move for acquittal or to renew motion at
  close of all evidence "forecloses  appellate consideration of all issues of
  sufficiency of the evidence").  Nor did he file a post-verdict  motion for
  acquittal within ten days of the jury's verdict.  See V.R.Cr.P. 29(c), 
  State v.  Brooks,  163 Vt.  245, 254, 658 A.2d 22, 28-29 (1995) (holding
  that where defendant moved for acquittal  within ten days of verdict, issue
  was preserved for appellate review).  Because defendant here  neither
  renewed his Rule 29(a) motion at the close of all the evidence, nor made a
  Rule 29(c)  motion within ten days of the jury's discharge, his objection
  is not preserved for appellate review.

                           VII. Speedy Trial Claim

       Defendant also claims that his right to a speedy trial was violated by
  his thirty-four month  incarceration between arrest and trial.  The four
  factors weighed in assessing a speedy trial claim  are: "the length of the
  delay, the reason for the delay, defendant's efforts at obtaining a speedy
  trial,  and 

 

  the prejudice to the defendant."  State v. Turgeon, 165 Vt. 28, 35, 676 A.2d 339, 343 (1996)  (citations omitted).  "Of these factors, prejudice is
  the most important.  Where there is no prejudice  to the defense at trial,
  a speedy-trial claim cannot prevail."  Id.  The record here reveals that
  the  majority of the delay was caused by defendant.  Defendant twice
  substituted counsel and each new  attorney required several weeks or months
  to become familiar with the complex record.   Defendant  filed dozens of
  pretrial motions; on August 1, 1994, alone, he filed seven motions that
  took months  to resolve.  He requested numerous continuances.  Last but not
  least, defendant obstructed the  State's efforts to obtain both handwriting
  exemplars and hair samples from him, going so far as to  dye his hair while
  in prison, which forced the State to bring contempt actions against him.   
  Although not every month of delay was caused by defendant, he alleges no
  prejudice other than  being incarcerated before trial.  To date, we have
  not recognized pretrial incarceration alone as  prejudice.  See State v.
  Keith, 160 Vt. 257, 269, 628 A.2d 1247, 1254 (1993) ("[W]e have denied 
  lack-of-speedy-trial claims despite the fact that the defendant was jailed
  for a significant period  before trial.").  We decline to do so based on
  these facts.  


                IX.  Instruction on Lesser-Included Offenses

       Finally, defendant claims in his pro se brief that the trial court
  erred in permitting him to  waive a jury instruction on lesser-included
  offenses. The record shows that the court asked  defendant whether he had
  an opportunity to discuss the lesser-included offenses with his attorneys, 
  whether he understood that the lesser-included offenses could conceivably
  be second-degree  murder and manslaughter, whether he desired to forego a
  charge of lesser-included offenses and  simply give the charge as
  first-degree murder, whether he had sufficient opportunity to freely and 
  fairly discuss the issue with his attorneys, whether he was satisfied with
  the advice he received, and  whether his choice 

 

  was a free and voluntary one.  Defendant answered all of these questions in
  the affirmative.  The  court additionally asked the defendant whether
  anyone had exercised undue influence in connection  with the waiver of
  lesser-included offenses and whether he had taken any medication or other 
  substance that would prevent him from understanding the advice given.
  Defendant answered these  questions in the negative.

       We recognize that "it may be a valid defense strategy for defendant to
  forgo an instruction  on manslaughter in a murder case, despite that the
  facts may warrant its inclusion."  In re Trombly,  160 Vt. 215, 219, 627 A.2d 855, 857 (1993).  We also recognize that "where the omission is part
  of  trial strategy and the defendant does not request such charge or object
  to its omission, the court  need not include the charge on its own
  volition."  Id.  Here, the court discussed the issue of waiving  the
  lesser-included offenses instruction with defendant and gave defendant
  ample opportunity to  forgo such waiver.  The record shows that defendant's
  decision to waive the instruction on lesser-included offenses was made
  knowingly, voluntarily, and following sufficient time for discussion  with
  counsel.  Based on the facts, the trial court did not abuse its discretion
  in allowing defendant to  waive the jury instruction on lesser-included
  offenses.

       Affirmed. 
	
						FOR THE COURT:

	
				                ---------------------
						Associate Justice

---------------------------------------------------------------------
                                 Footnotes


FN1.  Defendant also filed a pro se reply brief, which was immediately
  withdrawn by counsel with client's permission.  Although  defendant has
  written a number of letters to this Court claiming he did not want to
  withdraw his brief, we consider strategic  decisions the proper province of
  counsel.  In addition, the arguments defendant claims he made in the reply
  brief have been made  elsewhere and received due consideration.

FN2.  Defendant has not asserted rights under the Vermont Constitution,
  therefore we analyze his claim under federal standards  only. 

FN3.  In his pro se brief, defendant also argues that because the police had
  seen the awl in the back of the truck, they used the  consent form,
  including the statement about ownership, to elicit the incriminating
  information that he owned the truck.  The record  is devoid of any
  indication that the police officers specifically asked defendant to
  complete that section of the form and regardless  of the sequence of events
  of October 21, 1992, defendant's ownership of the truck was indisputable
  and cumulative to evidence  defendant elicited from Sandra. 

FN4.  We further assume that these two statements were confidential, as
  defined by Rule 504, and that the privilege was never  waived, although
  defendant has not demonstrated this in his briefs. 

FN5.  Indeed, a number of states have declined to interpret their
  marital-privilege statutes to apply to probable cause  determinations.  See
  generally  State v. Farber, 314 N.W.2d 365, 367 (Iowa 1982); People v.
  Kemp, 399 N.Y.S.2d 879, 883 (N.Y.  App. Div.1977).  As the Reporter's Notes
  to V.R.E. 504 reveal, however, Rule 504 is based on 12 V.S.A. ยง 1605, which
  is a  unique Vermont provision, and therefore we do not decide at this time
  whether a more narrow reading of the privilege is  appropriate. 

FN6.  Defendant also challenges the trial court's refusal to excise certain
  statements he alleges were false because, as the trial  court decided,
  defendant had failed to show that the false statements were made knowingly
  or with reckless disregard for the truth.  This claim is inadequately
  briefed and therefore we decline to address the issue.  See V.R.A.P.
  28(a)(4); Johnson v. Johnson, 158  Vt. 160, 164 n.*, 605 A.2d 857, 859 n.*
  (1992). 

FN7.  Defendant also argues that McCormack failed to say that the numbers on
  the Corvette's license plate were green and  failed to say that the
  Corvette's gas tank access is behind the license plate.  Neither of these
  facts were included in the warrant  application; defendant's claim seems to
  be that their absence renders the application insufficient.  We cannot
  agree.  

FN8.  Matthews later corrected his statement, identifying the license number
  as ZAZ32J, which was defendant's Florida  license plate for the Corvette.