State v. Setien

State v. Setien (2000-548); 173 Vt. 576; 795 A.2d 1135

[Filed 07-Jan-2002]

[Motion for Reargument Denied 08-Feb-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-548

                             DECEMBER TERM, 2001


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 3, Washington Circuit
Charles L. Setien	               }
                                       }	DOCKET NO. 1579-12-99 WnCr

                                                Trial Judge: Mark J. Keller

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

       Defendant Charles Setien appeals his conviction for larceny from the
  person, 13 V.S.A. §  2503, attempted assault and robbery, 13 V.S.A. §§ 9,
  608, and as a habitual offender, 13 V.S.A. § 11,  claiming that (1) he was
  denied his right to testify because the trial court ruled in limine that
  the State  could impeach defendant with evidence of his past criminal
  convictions; (2) he was convicted of two  crimes but committed only one;
  (3) the habitual offender conviction was improperly based on his  change of
  plea in two cases for which no transcripts were available; and (4) the
  jury's determination  that defendant was a habitual offender may not have
  been unanimous.  We affirm.

       Defendant's convictions arose from events occurring in Barre, Vermont
  on March 15, 1999.   On that date, Viola and Victor Aldrich, both in their
  seventies at the time, were home watching  television when defendant
  entered their home looking for Victor.  Victor and Viola collected, bought 
  and sold coins for many years, and kept some of their collection at home. 
  Defendant told Victor,  who was disabled and could not get out of his
  chair, that he wanted to buy some coins.  Victor told  defendant that they
  did not sell coins from their home at night.  Although Victor told
  defendant that  the coins were at the bank in a vault, defendant insisted
  that the couple had coins in their home.   Viola became nervous, called to
  her grandson who lived upstairs, and asked him to call the police.  

       Meanwhile, the couple gave defendant permission to use their telephone
  so he could call for a  ride.  After hanging up the phone, defendant again
  tried to persuade Victor to sell him some coins.   Victor refused. 
  Defendant then ordered the couple to open their safe, threatening to kill
  them with a  gun he said he possessed if they did not comply.  When the
  couple continued to refuse defendant's  demands, he reached under the top
  of Viola's nightgown and ripped off a chain and a gold coin she  wore
  around her neck, saying, "I will have one gold piece anyway."  Defendant
  also took some  foreign coins from a glass candle holder in the couple's
  home, and then he left.  He was later arrested  after a coin dealer
  identified him as the person who sold him the coin stolen from Viola.

 

       Although neither Victor nor Viola identified defendant as the
  perpetrator immediately, they  were familiar with him because he had worked
  on their home some time previous to March 15.  At  that time, the couple
  allowed defendant to eat lunch in their home, and they discussed coin
  collecting  with him.  Defendant has a distinctive lisp, but again neither
  Victor nor Viola mentioned that to the  police right after the crime took
  place.  They also failed to identify him by name after a photo lineup. 
  Eventually, the couple were able to tell the police that defendant was the
  person who entered their  home that evening.  Defendant was thereafter
  convicted, and he appealed to this Court.

       Defendant first argues that he was denied his right to testify because
  the court ruled  unfavorably on his motion in limine to exclude impeachment
  evidence consisting of his prior  convictions for false pretenses and
  attempt to defraud.  In response, the State argues that defendant  failed
  to preserve this claim for review because he did not testify at trial;
  therefore, the evidence was  never admitted.  The State asks us to adopt
  the United States Supreme Court's decision in Luce v.  United States, 469 U.S. 38 (1984), requiring a criminal defendant to testify in order to raise
  and  preserve for appellate review a claim of improper impeachment through
  evidence of prior  convictions.  Because the record in this case is
  sufficient for us to find no abuse of discretion in the  court's in limine
  ruling, we do not reach the State's request regarding Luce v. United
  States.

       Whether to admit evidence of prior convictions for impeachment
  purposes is within the trial  court's discretion.  State v. Emerson, 149
  Vt. 171, 178, 541 A.2d 466, 470 (1987).  The standard for  exercising that
  discretion appears in V.R.E. 609 as well as State v. Gardner, 139 Vt. 456,
  433 A.2d 249 (1981).  Rule 609(a)(1) allows the State to attack a criminal
  defendant's credibility with evidence  of a prior conviction for a crime
  "whose statutory elements necessarily involve untruthfulness or 
  falsification," unless the court determines that the probative value of
  such evidence is "substantially  outweighed by the danger of unfair
  prejudice."  V.R.E. 609(a)(1).  Although subsection (a)(1) of  Rule 609
  shows a preference for admitting prior convictions involving falsification
  or untruthfulness,  1989 Reporter's Notes, V.R.E 609, the court must assess
  probative value and prejudice in accordance  with a variety of factors set
  out in State v. Gardner.  See State v. Ashely, 160 Vt. 125, 129, 623 A.2d 984, 986 (1993) (failure of trial court to adequately consider Gardner
  factors is grounds for reversal).  Those factors include the nature of the
  proceeding, the nature of the crime to be used for  impeachment, the length
  of defendant's criminal record sought to be admitted, the age of the prior 
  convictions, defendant's age and circumstances, and the relative importance
  of defendant's testimony  and the State's need to use the prior convictions
  to impeach.  Gardner, 139 Vt. at 460-61, 433 A.2d  at  251-52.  

       In this case, the State argued below that the credibility of its only
  two eyewitnesses, Viola and  Victor Aldrich, was essential to its case. 
  The need to impeach defendant's credibility, should he  decide to testify
  and deny he was present in the Aldrich home on March 15, was therefore
  critical.   Defendant responded that the State had a strong circumstantial
  case against him, defendant was the  only witness who could possibly
  counter the State's numerous witnesses, and the prior crimes would  be
  unduly prejudicial because they were similar to the crimes at issue in the
  present case.  On appeal,  defendant's argument centers on the trial
  court's alleged failure to adequately consider his need to  testify. 
  Defendant never made an offer of proof concerning what his testimony might
  have been, 

 

  however, had he decided to testify.  Also, defendant does not dispute that
  false pretenses and attempt  to defraud are crimes involving
  untruthfulness, and therefore are highly probative of credibility. 

       We agree with the trial court that the probative value of the prior
  convictions was not  substantially outweighed by the danger of unfair
  prejudice in light of the defense's expected attack on  the ability of the
  elderly eyewitnesses to recall and correctly perceive the events, and to
  recognize the  perpetrator.  At trial, defendant's cross examination of the
  Aldrichs focused on their failure to  immediately identify defendant when
  the police arrived at their home, Viola's failure to identify  defendant by
  name during a photo array, Viola's ability to see and to correctly recall
  what happened,  Victor's apparent failing memory, and the fact that the
  couple knew defendant from previous  encounters. 

       Defendant is correct that the State offered other incriminating
  evidence implicating defendant,  but that evidence was primarily
  circumstantial.  Moreover, defendant vigorously impeached that  evidence
  where possible.  The credibility of the State's only eyewitnesses was
  therefore crucial to the  State's case.  Under the circumstances, there was
  a greater need to explore all avenues which would  help the jury determine
  whether to believe the victims or defendant, assuming defendant decided to 
  testify.  See State v. DeJoinville, 145 Vt. 603, 606, 496 A.2d 173, 175
  (1985) (where outcome  largely depends on credibility of witnesses, Court
  recognizes greater need to use prior convictions to  help jury determine
  which witness is more believeable).  The trial court exercised its
  discretion  appropriately, particularly where defendant failed to make an
  offer of proof supporting his asserted  need to testify in his own defense.

       Defendant next argues that if he committed any offense, it was a
  single crime and he was  erroneously charged and convicted of two.  He
  believes only one crime occurred because his acts all  took place in a
  single location, within a few minutes and with a partially fulfilled,
  single purpose - to  steal gold coins.  There were two victims on the
  evening of March 15, 1999, however - Victor and  Viola Aldrich - and the
  crimes against each were supported by different facts.  Cf. Jackson v.
  State,  432 S.E.2d 649, 650-51 (Ga. Ct. App. 1993) (two separate robberies
  occurred during same course of  events where property stolen from pawn shop
  in front of shop's owner and property taken from   person of owner's wife);
  Hatcher v. State, 410 N.E.2d 1187, 1190 (Ind. 1980) (three robberies 
  occurred because defendant and his accomplice took property from three
  separate victims even  though in same course of events).  Defendant
  committed larceny from the person of Viola Aldrich by  ripping a necklace
  with a coin off of her neck. (FN1)  See 13 V.S.A. § 2503 (larceny from the
  person  means stealing or attempting to steal "from the person and custody
  of another").  The second crime  was the attempted assault and robbery of
  "Victor and/or Viola Aldrich," as the State provided in its

 

  information, by threatening to shoot them to gain access to their safe and
  its contents.  See 13 V.SA.  § 608 (defining robbery) and § 9 (defining
  attempt).  After the jury rendered its guilty verdict, the  court asked
  each juror to identify the victim of defendant's attempted assault and
  robbery.  Each juror  answered that defendant victimized both Victor and
  Viola Aldrich.  Thus, Victor was a second  victim that evening of a
  different crime with different facts than the larceny offense against
  Viola.   Defendant's two convictions were therefore proper.

       Defendant also challenges his conviction as a habitual offender under
  13 V.S.A. § 11, which  authorizes the trial court to impose a sentence of
  up to life imprisonment if the jury concludes  defendant was convicted of
  three prior felonies, including attempts to commit felonies.  13 V.S.A. § 
  11.  The State offered six prior felony convictions: burglary in 1981,
  grand larceny in 1985, felony  retail theft in 1988, attempt to defraud in
  1993, false pretenses in 1994, and escape in 1997.  The  court prohibited
  the State from using the 1985 grand larceny and 1997 escape convictions
  because  the transcripts of the change-of-plea hearings in those cases
  showed noncompliance with V.R.Cr.P.  11 by failing to set forth factual
  bases for the pleas.   Defendant also challenged the use of the 1981 
  burglary and 1988 felony retail theft convictions because no transcripts
  for the change-of-plea  hearings in those cases were available.  The court
  denied defendant's challenge to those convictions,  and he contests that
  ruling on appeal.

       Because convictions are presumptively valid, defendant has the burden
  to prove that his prior  convictions based on guilty pleas were not valid. 
  State v. Riefenstahl, ___ Vt. ___, ___, 779 A.2d 675, 678-79 (2001)
  (mem.).  Transcripts are one way to prove that a plea was not knowing and 
  voluntary, and thus the conviction was invalid; but defendant could also
  challenge the two prior  convictions by testifying that irregularities in
  the plea proceeding demonstrate the convictions'  invalidity.  See State v.
  Brown, 165 Vt. 79, 88, 676 A.2d 350, 355-56 (1996) (defendant need not 
  challenge his prior convictions through court records alone).  Defendant
  argues, however, that a  transcript from one of defendant's other excluded
  convictions suggests that the 1981 plea-based  conviction for burglary was
  invalid because the same judge presided over both proceedings.   Defendant
  also asserts that doubt exists about his 1988 felony retail theft
  conviction because there is  no record that he was counseled about his risk
  of being found a habitual offender if he were later  convicted of another
  crime.  Those contentions do not diminish defendant's obligation to make
  some  showing that the prior convictions were invalid.  He "must do more
  than point to an ambiguous or  incomplete record" by producing some
  evidence that his prior pleas did not meet the requirements of  the law. 
  State v. Delisle, 171 Vt. 128, 132, 758 A.2d 790, 794 (2000).  Moreover, a
  guilty plea is not  unknowing and involuntary simply because defendant did
  not receive advice about the consequences  of recidivism.  State v.
  Pilette, 160 Vt. 509, 511-12, 630 A.2d 1296, 1297 (1993).

       We also reject defendant's suggestion that he should not bear "the
  severe burden imposed for  the unavailability of transcripts" because the
  State did not bring the habitual offender charge at one  of his prior
  felony events when transcripts might have been available.  It is
  defendant's burden to  show that his prior guilty pleas and consequent
  convictions were obtained improperly.  Riefenstahl,  ___ Vt. at ___, 779 A.2d  at 678-79.  Defendant cites no case or other legal authority directing
  the  State to bring habitual offender charges at the earliest opportunity. 
  When to charge defendant as a

 

  habitual offender is a matter of prosecutorial discretion.  Significantly,
  defendant does not allege that  he entered pleas in the cases he contests
  unknowingly and involuntarily, or that there were other  defects in those
  convictions.  Accordingly, we find no error in the trial court's denial of
  defendant's  request to exclude from the jury's consideration the two
  convictions for which defendant could not  obtain transcripts.

       Lastly, defendant seeks reversal of his habitual offender conviction
  claiming that the jury's  verdict may not have been unanimous.  Defendant
  asserts the court failed to inquire of each juror  which of the four prior
  convictions they based their verdict upon.  The record leaves no doubt that 
  the jury unanimously determined defendant was a habitual offender based on
  all four convictions the  State sought to prove.

       The transcript shows the trial court asked the jury if it reached a
  determination on whether  each conviction the State presented - attempt to
  defraud, false pretenses, burglary, and retail theft - were felonies and
  that defendant was the person who committed the offenses.  The jury
  responded  affirmatively to each of the four convictions separately,
  responding that defendant "was the one who  did it."  The court then polled
  each juror individually asking, "do you agree with each one of those 
  decisions," and enumerated each conviction by number.  Each juror again
  responded affirmatively.   Immediately thereafter, the State, apparently
  concerned that the jury's response that defendant "was  the one who did it"
  might not satisfy the requirement that they find he was convicted of each
  offense,  requested that the court inquire whether the jury agreed that
  defendant "had been convicted of three  or more felonies before the
  conviction today?"  The jury responded, "Yes."  The court then asked,  "And
  does each member of the jury agree with that?"  The jury as a group again
  answered, "Yes."   Based on this record, there is no uncertainty about the
  unanimity of the jury's verdict on all four prior  convictions.

       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.  Although the State's information charging larceny from a person did
  not identify the victim  by name, it expressly identified the item stolen
  as "a necklace with coin."  Defendant's claim that the  State sought to
  convict him of a crime not charged by failing to name Viola Aldrich as the
  victim of  defendant's unlawful act on March 15, 1999 is meritless where
  the underlying facts, which were set  forth in a probable cause affidavit,
  left no doubt as to the "person" from whom defendant stole that  evening.