State v. White

State v. White (2000-211); 172 Vt. 493; 782 A.2d 1187

[Filed 31-Aug-2001]


       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. 2000-211


State of Vermont	                         Supreme Court

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

Robert L. White	                                 May Term, 2001 



Theresa S. DiMauro, J.

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

Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.   Defendant Robert White appeals his conviction for
  second degree murder  following a jury trial in Rutland District Court, and
  the subsequent imposition of a sentence of life in  prison without parole. 
  Defendant claims that the conviction and sentence should be vacated, and
  the  case remanded for a new trial, on the grounds that (1) the evidence
  presented does not support a  finding of defendant's guilt beyond a
  reasonable doubt; (2) the failure of the police to photograph and  preserve
  certain evidence required either dismissal of the charge against him or
  suppression of the  evidence in question; (3) the court erred in allowing
  testimony regarding defendant's marital  difficulties and his earlier
  discharge from employment at the business where the murder took place; 

 

  and (4) the trial court's imposition of the sentence of life without
  parole, based upon aggravating  circumstances, was unjustified and
  therefore error.  We perceive no error in regard to defendant's  arguments,
  so we affirm the conviction and sentence.

       On April 18, 1998, shortly before 11:00 p.m., Jane Desmarais arrived
  at the Econo Lodge  Motel in Rutland to begin her overnight shift as the
  front desk clerk.   Around 1:00 a.m., a couple  checked into the motel,
  where they observed Desmarais speaking with a man in the motel lobby.   The
  man addressed the couple, acting as if he was participating in the check-in
  process.  Defendant  had been employed as a night clerk at the motel the
  previous fall and was familiar with the nighttime  check-in procedures and
  where cash was kept on the premises.    

       At 2:15 a.m., a long-distance telephone call was made to the front
  desk of the motel by a  person trying to get in touch with one of the
  motel's customers.  When no one answered, the person  tried again four or
  five times within the following half-hour, but was unable to reach anyone
  at the  front desk.  At 6:00 a.m., Desmarais' mother telephoned the motel,
  and when no one answered, went  to the motel to check on her daughter. 
  When she arrived, the entrance was locked, but inside all the  lights and
  the television were on.  After no one responded to her knocking on the door
  and a window,  she contacted the owner of the motel, Patrick Abatiell, Sr. 
  Abatiell then drove to the motel,  unlocked the door, and entered with
  Desmarais' mother.  They discovered Desmarais deceased, her  body lying on
  the floor of the lobby in a location not visible from the front door. 
  Blood spots on the  floor and the arrangement of the victim's clothes
  suggested that the body had been moved to that spot  from a more visible
  location.  The body had been disfigured by the application of chemical
  solvents,  including paint remover and commercial drain opener, and
  appeared to have been burned 

 

  as well.  An autopsy indicated that the cause of death had been asphyxia
  due to strangulation.  There  was over $400 in cash missing from the motel
  office area. 

       While processing the crime scene, the police took into evidence two
  advertising flyers, one  8« by 11 inches in size, and the other 8« by 5«
  inches.  The larger flyer had reddish-brown stains  on the back, unprinted
  side that appeared to be consistent with blood and that resembled a palm 
  print.  The smaller flyer had on it what appeared to be a fingerprint made
  in blood.  The flyers were  submitted to the state police forensic
  laboratory for identification of the reddish-brown stains as well  as to
  make an identification of the prints.  In the course of processing the
  larger flyer to identify the  palm print, the document was sprayed with
  ninhydrin, a chemical used to reveal more of the full  hand print on the
  flyer.  The ninhydrin treatment revealed latent fingerprints as well. 
  After  determining that the reddish-brown substance was indeed blood, a
  portion of the palm print was cut  out by the crime lab in order to
  preserve it for any future testing which might be necessary.  The palm 
  print and fingerprint impressions on both flyers were subsequently
  identified as matching those of  the defendant, and a sample of blood taken
  from the palm print was identified as that of the victim. 

       Prior to trial, defendant moved the court to exclude the evidence
  obtained from the larger  flyer, or to dismiss the charges, arguing the
  physical evidence had been destroyed by the forensic  laboratory's cutting
  of the flyer and chemical treatment.  During the trial, defendant filed a
  motion to  exclude the testimony of Patrick Abatiell, Jr., manager of the
  Econo Lodge, regarding the  circumstances surrounding defendant's
  termination from the motel.  Defendant also objected during  trial to the
  introduction of testimony regarding the marital difficulties he was
  experiencing at the  time of the murder.  The court denied the motions and
  the objection, and at the conclusion of the trial 

 

  the jury entered a verdict of guilty.  On April 27, 2000, after the
  sentencing hearing, the court issued  its findings and sentence.  

       Defendant first argues that the evidence presented was insufficient,
  as a matter of law, to  support a finding of guilt beyond a reasonable
  doubt.  During the trial, defendant moved the court  once to dismiss for
  lack of a prima facie case, twice-at the conclusion of the prosecution's
  and the  defense's case-for acquittal, and once for acquittal
  notwithstanding the guilty verdict.  All of these  motions were denied.  

       We review all of these motions under the same standard-we must
  determine "whether,  taking the evidence in the light most favorable to the
  state and excluding modifying evidence, the  state has produced evidence
  fairly and reasonably tending to show the defendant guilty beyond a 
  reasonable doubt."  State v. Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37 (1995)
  (internal quotations and  citations omitted); see also V.R.Cr.P. 12(d)
  (motion to dismiss), 29 (motion for judgment of  acquittal).  The evidence
  presented must be considered together, not separately, State v. Grega, 168 
  Vt. 363, 380, 721 A.2d 445, 457 (1998), and thus even if each piece of
  circumstantial evidence  presented may be explained in some way that does
  not link the defendant to the murder, this does not  mean that an acquittal
  must be entered.  A judgment of acquittal is proper "only if the
  prosecution  has failed to put forth any evidence to substantiate a jury
  verdict."  State v. Couture, 169 Vt. 222,  226, 734 A.2d 524, 527 (1999). 
  Under this standard, we conclude that the court's denial of the  motions
  was proper.

       Defendant claims that there is no direct evidence that he killed the
  victim, and that the  circumstantial evidence presented does no more than
  create a suspicion or conjecture that defendant  murdered the victim.  See
  State v. Durenleau, 163 Vt. 8, 12-13, 652 A.2d 981, 982 (1994) (evidence 

 

  presented must add up to more than mere speculation) (citing State v.
  Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378 (1991)); cf. State v. Miller,
  146 Vt. 164, 169, 502 A.2d 832, 835 (1985)  ("Circumstantial evidence will
  sustain a conviction if it is sufficient to convince a reasonable trier of 
  fact that the defendant is guilty beyond a reasonable doubt.").  We
  disagree.  The State presented  circumstantial evidence that included
  physical evidence of defendant's palm print, made in the  victim's own
  blood by transferring the blood upon contact from his hand to the flyer
  before the blood  dried, therefore linking the defendant to the crime scene
  at or near the time of the murder; evidence  of the opportunity provided by
  his advance knowledge of the nighttime routine and operation of the  motel;
  evidence that the defendant had recanted his original story to the police
  regarding his  whereabouts on the night of the murder; and testimony as to
  defendant's expressing possible inside  knowledge of the crime to an
  off-duty police officer.  This evidence, in conjunction with the rest of 
  the evidence presented by the State, was sufficient to allow a reasonable
  trier of fact to conclude  beyond a reasonable doubt, and not merely
  suspect, that defendant was guilty of Desmarais' murder.

       Defendant next argues that the State failed to properly preserve the
  evidence used against him  when they cut out a piece of the advertising
  flyer with a bloody palm print for testing. (FN1)  He  claims that the
  investigating officers were negligent in failing to photograph the fliers,
  and that the  question of whether the blood got on the paper via a bloody
  hand, or if a clean hand was placed on  already-

 

  bloodied paper, has been "forever eliminated" by the absence of a
  photograph of the untreated and  uncut flyer.  Defendant asserts that this
  "missing" exculpatory evidence warranted dismissal of the  charges against
  him, based upon our decision in State v. Bailey, 144 Vt. 86, 475 A.2d 1045
  (1984)  (adopting three-prong test from United States v. Bryant, 439 F.2d 642, 653 (D.C. Cir. 1971) to be  applied in determining whether to dismiss
  indictment because of State's failure to preserve evidence).

       Defendant presented the trial court with several theories as to the
  exculpatory value of the  evidence at issue.  He argued that without a
  photograph of the flyer, taken before the application of  the ninhydrin and
  the removal of a portion for blood analysis, it was impossible to prove or
  disprove  the existence of marks, stains, or other information on the
  flier, the time the blood was deposited on  the flier relative to the death
  of the victim, or whether the palm print was fabricated or planted on the 
  crime scene.  However, defendant did not argue before the trial court the
  one argument he presents to  this Court-that the lack of a direct,
  pre-ninhydrin application, pre-cutting photograph of the flier  could have
  indicated whether the print was made by a bloodied palm pressing on the
  flier, or whether  the blood was already on the flier when the palm touched
  it.  At trial, the State presented two experts  who testified that their
  examination of the flier indicated that the blood was transferred to the
  flier by  the hand making the print.  The defense cross-examined the
  witnesses, but did not challenge their  conclusion on the transfer of the
  blood to the paper.  By failing to raise this claim before the trial 
  court, defendant failed to preserve this issue for our review on appeal. 
  Nor does defendant claim  plain error in the court's denial of his motion. 
  Therefore, we decline to address this issue on appeal.   See State v.
  Devine, 168 Vt. 566, 568-69, 719 A.2d 861, 864 (1998) (declining to address
  claim  which was not raised before the trial court).					

 

       Defendant next challenges the admission of testimonial evidence
  regarding his marital  difficulties and the circumstances surrounding the
  termination of his employment at the motel.  He  argues that the former
  testimony had no relevance to any of the issues before the court, and that,
  in  the case of both, the prejudicial effect outweighed their probative
  value.  The determination as to  whether evidence one party seeks to admit
  is relevant is committed to the "sound discretion of the  trial court," and
  we will not disturb its decision absent a showing of an abuse of
  discretion.  State v.  Streich, 163 Vt. 331, 351, 658 A.2d 38, 52 (1995). 
  To support a claim of abuse of discretion, the  complaining party has the
  burden to show that the trial court withheld its discretion or exercised
  its  discretion upon grounds clearly untenable or unreasonable.  State v.
  Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988).  We apply the same
  abuse of discretion standard of review in claims that the  trial court
  erred in its determination of whether the prejudicial effect of the
  evidence at issue  substantially outweighed its probative value.  State v.
  Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332  (1996).  "This Court will not
  interfere with discretionary rulings of the trial court that have a 
  reasonable basis, even if another court might have reached a different
  conclusion," nor will we  interfere with the judgment of the trial court
  simply because a different court might have reached a  different
  conclusion.  Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (internal
  quotations and citations  omitted). 
	
       The evidence of marital difficulties consisted of testimony by a
  witness who was defendant's  co-worker at the time of the murder, and who,
  eight days after the murder, was told by defendant that  he was getting a
  divorce.  At trial, this testimony was solicited from the witness just
  after he had  testified that, around the time of the murder, defendant had
  offered to work any of the witness' shifts  for him because defendant
  "needed the money."  Upon defendant's objection to the testimony 

 

  concerning his pending divorce, the prosecution stated that the evidence
  was being offered to show  the state of mind of the defendant at the time
  of the murder.  Defendant claimed at trial, and now  before this Court,
  that the evidence was offered to show a financial motive for the crime
  based upon  "building an inference upon an inference."

       The State argued that the evidence was relevant to show defendant's
  "situation is such that he  may want to stop off someplace overnight rather
  than going home."  The trial court accepted this  reasoning and held the
  evidence admissible to show defendant's state of mind.  Since the jury knew 
  that defendant was married, it was  appropriate to provide them with
  additional information  concerning the state of the marriage, so that
  defendant's activities that night would make more sense,  and thus be "more
  probable ... than it would be without the evidence." See V.R.E. 401
  (definition of  relevant evidence).  We find no error in the trial court's
  decision to admit this testimony. (FN2) 

       The second piece of testimonial evidence challenged on appeal is the
  testimony of Patrick  Abatiell, Jr. regarding the circumstances surrounding
  the termination of defendant's employment at  the motel.  This testimony
  was preceded by a limiting instruction to the jury that the evidence was 
  being offered to show motive, and should not be used to draw a negative
  inference about defendant's  character.  Abatiell testified that on the
  last Sunday morning of October 1997, he commented to  defendant about his
  appearance at work.  When Abatiell arrived at the motel that morning,
  defendant  was on a couch with his feet crossed, hands in his lap, and his
  chin down into his chest, and wearing  jeans and a baseball cap.  After
  again finding defendant in this manner a short time later Abatiell 

 

  asked: "Robert, what's the matter? You can't be like this.  I mean, we need
  to present a good image.   This doesn't look good for customers." 
  Defendant then stood up and said: "I can't take this anymore.  I don't want
  to put up with this crap," at which point defendant collected some
  belongings and left  the motel.  Abatiell testified that he never saw
  defendant at the motel again. 

       In responding to defendant's motion to exclude this testimony, the
  prosecution offered that  this evidence was being presented to provide a
  possible motive for the robbery or the murder, as the  evidence displayed
  an "animus" defendant may have harbored toward the motel, its owners, or
  its  employees.  The trial court accepted this reasoning and admitted the
  evidence.  We disagree with   defendant that the evidence was presented
  with the purpose of making an improper inference that the  crime was a
  result of "former employee rage" and that the impact of this testimony on
  the jury could  do nothing more than "enflame [sic] and appeal to passion." 
  We perceive no abuse of discretion, on  the grounds of relevance or
  excessive prejudicial effect, in the trial court's admission of this 
  testimony.   

       Defendant's final argument is that the trial court erred in concluding
  that the sentence of life  without parole was justified under the
  circumstances of the case.  When we review the sentence  imposed by a
  court, "[a]bsent a showing that the trial court failed to exercise
  discretion at all, or  exercised it for purposes which are clearly
  untenable, or to a degree which is unreasonable, we will  uphold the
  court's decision."  State v. Turner, 150 Vt. 72, 75, 550 A.2d 57 (1988). 
  When an  individual is convicted of second degree murder, the trial court
  must consider the aggravating and  mitigating factors specifically
  enumerated in the sentencing statute or as suggested by the parties. See 
  13 V.S.A. §§ 2303(d)(1)-(8), (e)(1)-(7).  The trial court retains
  discretion to apply or reject the  factors, as well as to interpret the
  meaning of individual factors.  State v. Corliss, 168 Vt. 333, 341, 

 

  721 A.2d 438, 444 (1998).  The trial court's determination of aggravating
  and mitigating factors will  be upheld on appeal if such determination is
  supported by credible evidence, even where there may  be substantial
  evidence in the record to the contrary.  Id.  If the trial court finds that
  the aggravating  factors outweigh any mitigating factors, the court has
  discretion to set the minimum term of  incarceration as high as life
  without parole.  13 V.S.A. § 2303(b). 

       The court evaluated the aggravating and mitigating factors contained
  in 13 V.S.A. § 2303(d),  and concluded that several of the aggravating
  factors were present in this case.  First, it found that the  murder was
  committed while the defendant was engaged in the commission of, or
  attempted  commission of, a felony-in this case, assault and robbery. See
  13 V.S.A. § 608.  The court noted  that several hundred dollars had been
  taken from the Econo Lodge during the shift the victim had  been working,
  and that "it is reasonable to infer that there was a taking of money, or an
  attempted  taking of money, from [the victim] or in her presence"
  constituting an assault and robbery. 

       Second, the court found that the victim was particularly vulnerable in
  that she was working  alone at night - a fact known to Defendant  as a
  result of his prior employment at Econo Lodge.  Additionally, because the
  victim knew defendant it was less likely she would call the police when he 
  arrived at the motel;  instead, she would have let him in.  As a result,
  any fear or apprehension the  victim "was sure to have experienced would
  have occurred too late for her to have called for  assistance or taken
  steps to protect herself."    

       Third, the court found that the murder was particularly severe,
  brutal, or cruel, noting the  extent of the injuries to the victim both as
  a result of the strangulation and from the subsequent  mutilation of the
  body by acid and other chemicals and the attempt to burn the body.  
  Fourth,  the  court found that the murder was random, predatory, or
  arbitrary in nature.  In support of this 

 

  conclusion, the court relied upon a definition of predatory which portrayed
  such activities as "marked  by a tendency to victimize or destroy others
  for one's own benefit." 

       The final factor recognized by the court, in accordance with 13 V.S.A.
  § 2303(d)(8), is the  State's proposition that "[d]efendant is aware of his
  strength and is willing to use it against women,  regardless of the
  circumstances."  To support this proposition, the court referred to
  evidence  presented by the State that defendant had previously pushed his
  mother-in-law against a wall and  choked her, and that he had choked
  another woman while engaging in sexual intercourse with her.

       The defense neither argued for, nor presented evidence of,  any
  mitigating factors which it is  authorized to do under 13 V.S.A. § 2303(c),
  (e).  The court itself recognized only one -- the lack of a  significant
  prior criminal history.  The court found that defendant's prior criminal
  history consisted of  a conviction for driving under the influence.  Even
  though the court recognized defendant's lack of a  significant prior
  criminal history as a mitigating factor, it concluded that its value as
  such was  lessened by the fact that defendant had consumed alcohol just
  prior to the murder.

       The court concluded that, based on its review of aggravating and
  mitigating factors, the  aggravating significantly outweighed the
  mitigating and warranted consideration of imposition of a  sentence greater
  than the statutory minimum of twenty years imprisonment.  The court found
  that  there was no prospect for rehabilitating the defendant, and absent
  rehabilitation defendant posed both  a serious threat to public safety and
  a very high risk to reoffend.  The court further noted that  defendant
  "utterly and completely" denied any responsibility for the death, showed no
  remorse, and  cared only about himself;  "[h]e is an extreme danger to the
  public."  The court imposed a sentence  of life imprisonment without
  parole. 

 

       In the trial court's sentencing memorandum, all of the statutory
  aggravating and mitigating  factors were examined by the court.  See 13
  V.S.A. §§ 2303(c), (d).  Review of the sentencing  memorandum shows that
  all the factors which were ultimately relied upon by the court in its 
  sentencing decision were supported by credible evidence.  While we
  recognize that a punishment  must be proportional to the offense charged
  and convicted, a conviction of life imprisonment is not  out of proportion
  to murder.  State v. Bacon, 167 Vt. 88, 97, 702 A.2d 116, 122 (1997) (in
  felony  murder case, "[g]iven the seriousness of the offense for which
  defendant was convicted, no sentence  of imprisonment could be
  disproportionate") (citing Solem v. Helm, 463 U.S. 277, 290 n.15 (1983)). 
  We perceive no error in the trial court's sentencing of defendant to life
  without parole for the  commission of this murder.
 
       Affirmed.  



                                       FOR THE COURT


                                       ________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Defendant also raises on appeal the claim that the evidence should
  have been suppressed,  or the conviction reversed, because the ninhydrin
  treatment applied to the cut-out piece of the larger  flyer rendered
  further DNA testing of that piece impossible.  However, at trial
  defendant's counsel  stated that after further consultation with experts in
  the field, she understood this claim to be  incorrect and explicitly
  retracted it.  This claim is therefore waived for purposes of appeal. 

FN2.  Defendant's brief also challenges the marital difficulties evidence as
  unfairly prejudicial,  but he failed to raise this argument at trial-the
  trial court only heard argument from defendant on  the relevance of the
  evidence.  Therefore, we do not address this argument on appeal.