State v. Onorato

State v. Onorato (99-537); 171 Vt. 577; 762 A.2d 858 

[Filed 17-Oct-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-537

                            SEPTEMBER TERM, 2000

State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Bennington Circuit
                                       }
William Onorato	                       }	DOCKET NO.1448-9-98 Bncr

                                                Trial Judge: William D. Cohen

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


       After receiving a citation to appear in court on charges of sexual
  assault of a minor, defendant  William Onorato was found semi-conscious on
  the floor of his bedroom with a gun and what  appeared to be a suicide
  note.  Defendant filed a motion in limine to suppress evidence of the
  alleged  suicide note.  The trial court granted the motion, concluding that
  the note was not relevant and that  any probative value was "substantially
  outweighed by the danger of unfair prejudice and confusion of  the issues." 
  The trial court denied the State's interlocutory appeal and request for a
  stay.  A single  justice granted the State's request for a stay of the
  court's ruling and permission for this appeal under  V.R.A.P. 5.1. (FN1)
  The State contends that: (1) evidence of attempted suicide is relevant as a
  matter  of law to show consciousness of guilt; and (2) the judge abused his
  discretion in excluding the  alleged suicide note.  We agree that evidence
  of attempted suicide may be relevant to show  consciousness of guilt, but
  decline to disturb the trial court's discretionary ruling that its
  probative  value in this case is outweighed by the danger of unfair
  prejudice and confusion.  We affirm.

       On September 9, 1998, defendant was questioned by a Bennington police
  detective on charges  of sexual assault of, and furnishing alcohol to, a
  minor.  After questioning, defendant was issued a  citation to appear in
  court on the following day.  Defendant failed to appear.  On the next day
  police  responded to a report that defendant had been seen with a gun. 
  When police arrived at defendant's  home, defendant's son stated that he
  feared his father had shot himself, as the butt of a rifle and his 
  father's feet were visible through the bottom of the bedroom door.  The
  police forced open the bolted  door and found defendant passed out on the
  floor. The defendant was arrested, brought into court,  and arraigned later
  that same day.  The police seized, inter alia, the rifle and what appeared
  to be a  suicide note.

 

  The note read, in pertinent part:

    Told you I couldent do jail time.  Im 47 years old.  If I got
    twenty years Ide  be 67 years old man.  I don't plan to retire in
    jail and please don't hold a  grudge on guns.  There is many ways
    to do this. . . . Im very sorry for  leaving you like this but
    rember Im in peace with myself now. . . . I know  this is hard but
    this is better than visiting between bars and is mutch   quicker .
    . . . Sorry to leave you kids this way.

       In granting defendant's motion in limine to exclude evidence of his
  alleged suicide attempt,  and his motion to suppress the alleged suicide
  note, the trial court's entry order stated "Letter is not  relevant and
  thus not admissible.  Further, any probative value is substantially
  outweighed by the  danger of unfair prejudice and confusion of the issues." 
  The trial court subsequently denied the  state's interlocutory appeal and
  request for a stay.   This appeal followed.

       The State first contends that, as a matter of law, evidence of
  attempted suicide is relevant to  show consciousness of guilt.  "'Relevant
  evidence' means evidence having any tendency to make the  existence of any
  fact that is of consequence to the determination of the action more [or
  less] probable  . . . ." V.R.E. 401.  "With a single exception, courts have
  unanimously held that an accused's attempt  to commit suicide is probative
  of a consciousness of guilt and is therefore admissible." Annotation, 
  Admissibility of Evidence Relating to Accused's Attempt to Commit Suicide,
  73 A.L.R.5th 615, 624  (1999) (internal citations omitted); see also
  Commonwealth. v. Sheriff, 680 N.E.2d 75, 83 (Mass.  1997) (evidence of
  defendant's attempted suicide was admissible, even if the defendant were
  able to  present plausible alternative explanations for his conduct); State
  v. Mann, 625 A.2d 1102, 1106-7  (N.J. 1993) (evidence of defendant's
  attempted suicide prior to police interrogation was admissible in  sexual
  assault prosecution to show consciousness of guilt). 

       Analogous to the principle of flight evidence, courts have held that
  the attempt to commit  suicide soon after one is charged with committing a
  crime demonstrates both consciousness of guilt  and attempt to escape
  prosecution. See, e.g., State v. Carter, 164 Vt. 545, 548, 674 A.2d 1258,
  1261  (1996) ("[T]he State may introduce evidence of flight by a criminal
  defendant to show consciousness  of guilt.") "At the same time, we have
  questioned the probative value of such evidence."  Id.; see also  State v.
  Perrillo, 162 Vt. 566, 569, 649 A.2d 1031, 1033 (1994) (probative value of
  flight evidence is  questionable); State v. Pelican, 160 Vt. 536, 542, 632 A.2d 24, 28 (1993) ("Evidence of flight . . . is  generally considered to
  have little probative value, and is not sufficient by itself to support a 
  conviction."). Flight evidence is ambiguous in that there may be multiple
  reasons to explain the flight  of an innocent person, such as panic, the
  fear of being apprehended or confronting the police, and the  unwillingness
  to appear as a witness.

       Evidence of attempted suicide to show consciousness of guilt is
  similarly problematic.  The   underlying reasons motivating an attempt to
  take one's life can be both numerous and highly  complex, and may be even
  less indicative of guilt than flight evidence. Recognizing this complexity, 
  courts have cautioned that the possible ambiguity of an accused's suicide
  attempt requires a careful 

 

  consideration of the probative value such evidence offers.  See, e.g.,
  Mann, 625 A.2d  at 1106.    Because it is highly equivocal and
  circumstantial, the admissibility of attempted suicide evidence  may
  introduce remote, secondary concerns that might confuse a jury.

       In this case, the trial court ultimately based its decision to exclude
  evidence of the alleged  suicide note on its prejudicial impact.  Using the
  language of V.R.E. 403, the court stated:

    Based on my review of the letter, and the facts as [] outlined,
    I'm  going to grant the defendant's motion to preclude the
    introduction of the  event and of the letter, based on my view
    that the letter itself is of  questionable relevancy and any
    relevancy that it [has], would be prejudicial  and outweighed by
    any probative effect. 

  The State vigorously contends that the trial court could not have performed
  any meaningful  balancing under V.R.E. 403 because the trial court's entry
  order characterized the evidence of    attempted suicide as "not relevant." 
  We agree that the trial court's relevancy reference is erroneous.   We are
  unable to conclude, however, that the trial court failed to weigh the
  probative value of the  evidence against the danger of unfair prejudice.

       This Court has adopted the balancing test as articulated by V.R.E.
  403:  "Although relevant,  evidence may be excluded if its probative value
  is substantially outweighed by the danger of unfair  prejudice . . ."  See 
  Haynes v. Golub Corp., 166 Vt. 228, 236, 692 A.2d 377, 382 (1997).  The
  rule's  balancing test is a matter within the trial court's discretion.  
  State v. Covino, 163 Vt. 378, 381-82,  658 A.2d 916, 918 (1994). Rule 403
  "gives the trial judge discretion to exclude evidence that is  technically
  relevant if its probative value is outweighed by dangers of prejudice,
  confusion, or delay."  Reporters Notes, V.R.E. 403; see also Covino, 163
  Vt. at 381-82, 658 A.2d  at 918.  In this case, the  trial court's
  determination that the probative value of the suicide note was
  substantially outweighed  by the danger of unfair prejudice and confusion
  of the issues was justifiable.

       Although the trial court provided little amplification of the reasons
  for its decision, it is not  required to state precisely why it found
  probative value to be substantially outweighed by prejudicial  effect.  See
  In re S.G., 153 Vt. 466, 473, 571 A.2d 677, 681 (1990).  We note that the
  State declined  the trial court's offer to delay a ruling on defendant's
  motion until further evidence could be taken  because of the State's
  apparent belief that use of the alleged suicide attempt in opening argument
  was  critical to its case.  

       We will not disturb the trial court's ruling absent a showing of abuse
  of discretion.  See State v.  Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332
  (1996); Ulm v. Ford Motor Co., __ Vt. __, __, 750 A.2d 981, 989 (2000)
  (burden of showing abuse is a heavy one); Covino, 163 Vt. at 382 (heavy 
  burden to show "that the court withheld its discretion or exercised its
  discretion upon untenable or  unreasonable grounds.")  The issue before us
  is not whether we would have ruled differently if we  had the evidentiary
  issue before us as a trial court, but rather, whether the trial judge
  abused his  discretion.  See State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988) (describing strong 

 

  policy against appellate court substituting its judgment for that of trial
  court regarding admission of  evidence under Rule 403).  We conclude that
  he did not.


       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.  Defendant does not argue on appeal that permission to appeal was
  improvidently granted;  therefore, we do not consider that issue.