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
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
PRESENT: Dooley, Morse, Johnson, Skoglund, JJ.,and Teachout, S.J.,
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
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
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
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
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
knock and announce their authority and purpose. Defendant seems to object
solely to the fact that Stephen did not wait until defendant opened the
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
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
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
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
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
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
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
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
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
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
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
FOR THE COURT:
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. § 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.*
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
FN8. Matthews later corrected his statement, identifying the license number
as ZAZ32J, which was defendant's Florida license plate for the Corvette.