State v. Karov

State v. Karov (99-225); 170 Vt. 650; 756 A.2d 1236

[Filed 10-May-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-225

                              MARCH TERM, 2000


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Addison Circuit
                                       }
Thomas N. Karov	                       }	DOCKET NO. 472-9-97 Ancr

                                                Trial Judge: Dean Pineles, J.

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


       Defendant  appeals from a jury trial convicting him of first-degree
  aggravated domestic assault,  aggravated assault, two charges of kidnaping,
  and a violation of an abuse prevention order.   Defendant claims that the
  convictions for aggravated domestic assault and aggravated assault violate 
  the Double Jeopardy Clause of the United States Constitution and that the
  trial court erred in  sustaining an objection to defendant's closing
  argument and in denying defendant's motion to  suppress.  We affirm.

       In the evening of September 11, 1997, defendant Thomas Karov went to
  the home of his ex-wife,  Robin Karov.  He was angry about statements she
  made in their divorce case, on appeal to this Court.  He was waving a sheaf
  of papers and began hitting her with them and yelling at her.   She told
  him  he was not supposed to be there, as she had a restraining order
  preventing him from having any  contact with her, and he pulled out a gun. 
  He pointed it at her, saying God had told him to kill her,  and when she
  pushed it away from her head, it went off.  She dashed outside and he came
  outside  after her.  He told her to stop, that he could kill her there just
  as easily as in the house.  She stopped  running.  

       He then dragged her back to the house and began beating her.  He hit
  her on the left side of her head  with the gun, and continued hitting and
  kicking her when she fell to the floor.  At some point, her  friend Eunine
  Bailey arrived.  Defendant grabbed Bailey and dragged her inside the
  trailer.  Bailey  testified that she saw Robin sitting on the couch with a
  bloody nose, blood matted in her hair and  blood running down the left side
  of her face.  Defendant then held the two women hostage for  several hours,
  threatening to kill them and to kill himself.  Eventually, Bailey convinced
  defendant to  give her the firing mechanism of the gun, then the gun
  itself, and finally, to let both of them leave.   At about 12:30 a.m, they
  called Bailey's husband and asked him to call the police.  The women went 
  to the hospital, where Robin's injuries were treated.  

 

       Defendant was charged with five crimes arising out of the incident,
  which lasted approximately four  hours.  He was charged with kidnaping both
  Robin and Bailey and he was charged with violating the  abuse prevention
  order, as well as aggravated assault and aggravated domestic assault.  The
  amended  information charged him with first-degree aggravated domestic
  assault for the act of threatening to  kill a family member, Robin, while
  armed with a gun, and with aggravated assault for the act of  causing
  bodily injury to Robin with a gun.  His case was tried to a jury, and he
  was convicted of all  five counts.  

       On appeal, defendant first argues that the convictions for aggravated
  domestic assault and aggravated  assault violate the Double Jeopardy Clause
  of the United States Constitution. (FN1)   That clause  provides that no
  person may "be subject for the same offence to be twice put in jeopardy of
  life or  limb."  U.S. Const. Amend. V.  This provision has been
  incorporated into the Fourteenth  Amendment and applies to the states.  See
  Benton v. Maryland, 395 U.S. 784, 795 (1969).  The  clause prevents
  multiple prosecutions for the same crime, "as well as the imposition of
  multiple  punishments for the same offense."  See State v. Grega,  168 Vt.
  363, 382, 721 A.2d 445, 458 (1998)  (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).  

       As best we can discern, defendant is making a facial challenge to the
  validity of the aggravated  domestic assault and aggravated assault
  statutes.  He argues that aggravated assault is a lesser-included offense
  of aggravated domestic assault and therefore, when he was charged under
  both  statutes, he was put in double jeopardy.  Defendant claims that his
  convictions fall into the second  category of double jeopardy, because the
  convictions for "using his firearm to threaten and cause  serious bodily
  injury to his ex-wife violate[] his constitutional right to be free from
  double jeopardy  for the same offense."   

       The central flaw in defendant's argument is that he misunderstands the
  nature of his crimes.  He  insists that he is being punished twice for the
  "same offense."  In fact, he received two sentences for  two different
  crimes.  Defendant was not charged under these two statutes for the same
  act; he was  charged under these statutes for two different acts.  The
  aggravated domestic assault conviction  resulted from his threat to kill
  his family member, Robin, made while he was holding a loaded gun.   The
  aggravated assault conviction, in contrast, resulted from his striking her
  in the head with the gun.  These are two separate acts, charged as separate
  crimes.  A single criminal goal may be effected by  multiple criminal acts,
  and those multiple criminal acts may be separate and distinct offenses. 
  See  State v. Fuller, 168 Vt. 396, 399, 721 A.2d 475, 479 (1998) (holding
  that multiple sexual assaults  were not one continuous event but rather
  separate crimes). 

 

  See also Jordan v. State, 2000 WL 190003, at *2 (Ga. App. Ct. 2000) (where
  victim was robbed at  gunpoint,  briefly escaped but was grabbed and beaten
  to prevent escape, offenses of kidnaping and  attempted armed robbery "were
  two separate, distinct, and sequential crimes against the victim.").  

       Defendant committed several crimes on September 11, 1997; he has been
  convicted of five of them,  including threatening to kill Robin and
  striking her in the head with a gun.  The Legislature may  criminalize
  multiple, separate acts that take place in a criminal episode, such as
  kidnaping and  assault, or multiple sexual assaults.  See Fuller, 168 Vt.
  at 401-02, 721 A.2d  at 480.  Defendant's  convictions for aggravated
  assault and aggravated domestic assault do not place him in double 
  jeopardy; the Legislature has chosen to penalize several acts that
  defendant committed as separate  crimes. He has simply been convicted for
  two distinct crimes among several that he committed.   Thus, the problem he
  claims exists between the aggravated domestic assault and assault statutes
  is,  with respect to him, hypothetical. 

       He lacks standing to raise the hypothetical problem he suggests
  because he himself has not been  charged in a way that creates double
  jeopardy.   Defendant's right not to be placed in double jeopardy  is
  personal.  See State v. Maunsell, ___ Vt. ___, ___, 743 A.2d 580, 584
  (1999); State v. Duval, 156  Vt. 122, 130, 589 A.2d 321, 326 (1991)
  (Dooley, J., dissenting).  Such personal constitutional rights  "may not be
  vicariously asserted."  See State v. Wood, 148 Vt. 479, 484, 536 A.2d 902,
  905 (1987)  (quoting Alderman v. United States, 394 U.S. 165, 174 (1969).  
  Therefore, despite the fact that the  parties litigated this case by
  applying the standard analysis under Blockburger v. United States, 284 U.S. 299, 304 (1932), such analysis is inapposite because defendant is not
  in one of the two  situations giving rise to double jeopardy concerns.  He
  is not subject to a second prosecution for the  same crime, nor prosecuted
  for multiple crimes arising out of the same act.  See Grega, 168 Vt. at 
  382, 721 A.2d  at 458.  He does not meet the threshold test.  
  
       Defendant also suggests that double jeopardy could arise if he had
  been charged under both  subsections of the aggravated domestic assault
  statute, similar to the situation in State v. Ritter, 167  Vt. 632, 714 A.2d 624 (1998) (mem.).  There, the defendant was charged with two counts
  of second-degree aggravated domestic assault for committing an assault on
  a family member with two  aggravating conditions.  We held in Ritter that
  the Legislature had clearly intended the two  subsections of the
  second-degree aggravated domestic assault statute to be alternative ways of 
  committing domestic assault, such that one act should not be punished by
  two counts of second-degree aggravated domestic assault.  See id. at
  633-34, 714 A.2d  at 625-26.  Therefore, we vacated  one of the defendant's
  convictions. See id. at 634, 714 A.2d  at 626.   In the instant case,
  defendant  analogizes to Ritter by theorizing that he could have been
  convicted of two counts of first-degree  aggravated domestic assault, one
  count under each subsection: (1) attempting or causing serious  bodily
  injury to a family member and (2) threatening a family member.  Defendant
  was not charged  in this way, however, and therefore, whatever the result
  for such a hypothetical defendant might be,  this defendant lacks standing
  to challenge the statute vicariously.  See Wood, 148 Vt. at 484, 536 A.2d 
  at 905.

 

       Defendant next contends that the trial court committed reversible
  error by sustaining the State's  objection to speculation in defendant's
  closing argument.  Defense counsel argued in closing that  defendant was
  paranoid, saying that defendant viewed every moment, including the closing 
  arguments, through his paranoia, thinking that everyone was plotting
  against him, even defense  counsel and the jurors.  The State objected, and
  the court sustained the objection.  On appeal,  defendant argues that his
  expert testimony established that he suffered from paranoia and thus that 
  the closing argument simply drew reasonable inferences from the evidence. 
  We have held that  counsel "should confine argument to the evidence of the
  case and inferences that can properly be  drawn from it."  See State v.
  Blakeney, 137 Vt. 495, 504,  408 A.2d 636, 641-42  (1979).  Control of 
  closing arguments is committed to the trial court's discretion and is
  reviewed only for abuse of that  discretion.  See Arnold v. Cantini, 154
  Vt. 142, 147, 573 A.2d 1193, 1195-96 (1990).

       Defendant's expert, Phillip Kinsler testified about two meetings he
  had with defendant in the fall of  1997.  Kinsler repeatedly described
  defendant's behavior and thinking during these interviews as  paranoid. 
  After discussing various disorders and conditions, defense counsel asked
  Kinsler to apply  those concepts to defendant in particular.  Counsel then
  clarified that he meant for Kinsler to talk  about defendant's state
  "[b]ack in September."  Kinsler then analyzed the events of September 11, 
  1997, in the context of his observations of defendant in the month
  following the incident.  Therefore,  the expert's testimony was explicitly
  addressed to defendant's state of mind at the time of the crimes,  and did
  not provide a basis for counsel to infer, in closing argument, what
  defendant's state of mental  health was at the time of the trial.  Defense
  counsel's argument was indeed speculative, and therefore  properly
  restricted.  See State v. Davis, 165 Vt. 240, 252, 683 A.2d 1, 8 (1996)
  (holding defense may  not invite jury to speculate about exculpatory
  evidence); State v. Roberts, 154 Vt. 59, 72-73, 574 A.2d 1248, 1254 
  (1990)(demeanor of defendant who did not testify was not relevant evidence
  and  defense counsel could not urge jury to make speculative inferences
  about it).  Moreover, defendant's  state of mind at the time of trial is
  irrelevant to his state of mind at the time of the crimes; therefore, 
  defendant cannot have been prejudiced by the restriction of closing
  argument on an irrelevant point.

       Finally, defendant contends that the court erred in denying his motion
  to suppress statements made  by defendant to police officers while being
  taken from his ex-wife's home to the police barracks.   Defendant had not
  yet been given Miranda warnings.  He made comments to the police to the
  effect  of "I admit she got thumped last night" and "a higher power told me
  to do it."  Defendant concedes  that Miranda warnings are required only
  when a person is subjected to custodial interrogation.  See  Miranda v.
  Arizona, 384 U.S. 436, 444 (1966). The United States Supreme Court has
  defined  interrogation as limited to "words or actions . . . that the
  police should know are reasonably likely to  elicit an incriminating
  response."  See Rhode Island v. Ennis, 446 U.S. 291, 301 (1980). 

       Although defendant was in custody at the time, there is no evidence
  that he was being interrogated.   He was being transported to the police
  barracks and the trial court found that his statements were  spontaneous
  and voluntary.  Where there is no evidence that the police elicited

 

  the comments, much less that they were conducting a custodial
  interrogation, the trial court properly  admitted the statements.  


       Affirmed. 	



                                       BY THE COURT:



                                      _______________________________________
                                      Jeffrey L. Amestoy, Chief Justice

                                      _______________________________________
                                      John A. Dooley, Associate Justice

                                      _______________________________________
                                      James L. Morse, Associate Justice

                                      _______________________________________
                                      Denise R. Johnson, Associate Justice

                                      _______________________________________
                                      Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  13 V.S.A. § 1043(a)(2) provides, "[a] person commits the crime of
  first degree aggravated  domestic assault if the person . . . is armed with
  a deadly weapon and threatens to use the deadly  weapon on a family or
  household member."  The evidence showed that he told Robin he would kill 
  her while he was holding a gun. 13 V.S.A. § 1024(a)(2) provides, "[a]
  person is guilty of aggravated  assault if he . . . purposely . . . causes
  bodily injury to another with a deadly weapon."  The evidence  showed that
  he struck Robin in the head with the gun.