State v. Muscari
Annotate this Case
State v. Muscari (2000-562); 174 Vt. 101; 807 A.2d 407
[Filed 05-Jul-2002]
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. 2000-562
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Vincent Muscari November Term, 2001
David Suntag, J.
Dan M. Davis, Windham County State's Attorney, and Christopher C. Moll
and Tracy Kelly Shriver, Deputy State's Attorneys, Brattleboro, for
Plaintiff-Appellee.
William E. Kraham, Brattleboro, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J. Defendant appeals his convictions for unlawful trespass,
first degree aggravated domestic assault, simple assault by mutual combat,
and unlawful mischief. Defendant contends the trial court erred by: (1)
permitting a charge of aggravated domestic assault; (2) admitting the tape
of the victim's 911 call in evidence; (3) erroneously instructing the jury
on serious bodily injury and the relevance of expert medical testimony; (4)
considering defendant's silence to the pre-sentence investigator at
sentencing; (5) denying him equal access to the crime scene; (6) engaging
in experimental trial procedures; (7) denying him the right of
confrontation by limiting the
scope of cross-examination of the victim; and (8) improperly admitting
evidence of prior bad acts. We affirm.
On the evening of February 5, 1999 defendant let himself into the
Westminister, Vermont home of his former girlfriend, Ellyn Benson, and went
up the stairs to her bedroom where he discovered Ms. Benson with her
boyfriend, Chad Simpson. Defendant claimed that he and Ms. Benson had
scheduled a date to have dinner at her residence that night. Defendant and
Ms. Benson came face to face at Ms. Benson's bedroom door and began to
argue. When defendant pushed Ms. Benson down to the floor, Mr. Simpson
intervened, and the two men fought. After Mr. Simpson and defendant
temporarily stopped fighting, all three individuals went downstairs to the
living room and kitchen. While it is disputed whether defendant
accompanied or dragged Ms. Benson down the stairs, the evidence at trial
indicated that shortly after Ms. Benson arrived downstairs, defendant
punched her in the face. After being hit, Ms. Benson tried to defuse the
situation by urging Mr. Simpson to leave. With Mr. Simpson's departure,
however, defendant's violent behavior escalated; he smashed Ms. Benson's
plates and other breakables, threw them into the air, and hit Ms. Benson in
the face with at least one broken piece of dishware. Defendant then
punched Ms. Benson in the face again.
Ms. Benson ran outside to escape. Mr. Simpson, who was in the process
of leaving, saw that Ms. Benson was bleeding from her cheek and returned to
the scene to physically engage defendant. As the two men fought, Ms.
Benson called 911. She spoke with the 911 operator, left the telephone
line open, and went back outside. Defendant fled the scene before the
police arrived. Several hours later, from the house of his attorney,
defendant surrendered himself to the police.
The 911 response team administered first-aid and photographed Ms.
Benson's injuries before taking her to the hospital for further treatment.
The police took photographs of the crime scene and interviewed Ms. Benson
the night of February 5th, and again the following day. Although the
defense wanted to take its own photographs, Ms. Benson would not allow them
into her home. Ms. Benson's injuries as documented by the police
photographs and affidavit, and by Ms. Benson's testimony at trial,
consisted of a black eye, a three-centimeter long and one-centimeter deep
laceration on her face that required stitches, an additional small
laceration to the forehead, numerous small bruises and superficial
abrasions, and back pain. The larger laceration has developed into a
permanent scar and the back pain continues.
Defendant was charged with unlawful trespass, first degree aggravated
domestic assault, simple assault by mutual combat, and unlawful mischief.
After a three-day trial, on June 30, 2000, a jury convicted defendant of
all counts. Defendant appeals, alleging several different errors at trial.
Defendant's first claim of error is that there was insufficient
evidence to support a finding of serious bodily injury, and thus the charge
of aggravated assault. Defendant brought motions for judgment of acquittal
under V.R.Cr.P. 29 at the close of the State's case and after trial. The
court denied both motions. On review of a court's denial of a motion for
judgment of acquittal we must consider "whether the evidence, when viewed
in the light most favorable to the State and excluding any modifying
evidence, fairly and reasonably tends to convince a reasonable trier of
fact that the defendant is guilty beyond a reasonable doubt." State v.
Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999) (internal quotations
omitted). We conclude that there was sufficient evidence that victim
suffered serious bodily injury.
Title 13 V.S.A. § 1021(2) defines "serious bodily injury" as "bodily
injury which creates a substantial risk of death or which causes
substantial loss or impairment of the function of any bodily member or
organ or substantial impairment of health, or substantial disfigurement."
The term "substantial loss" replaced "serious permanent disfigurement, or
protracted loss" and "substantial disfigurement" was added when the
Legislature amended the aggravated assault statute in 1993. Compare 1993,
No. 95, §3, with 1971, No.222 (Adj. Sess.), § 1. Our primary objective in
construing a statute is to give effect to the legislative intent. State v.
Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996). We deduce from the
amendment that the Legislature intended that a conviction for aggravated
assault can now be sustained on evidence of "substantial disfigurement"
that need not be "serious, permanent disfigurement." See Jones v. Dep't of
Employment Sec., 140 Vt. 552, 555, 442 A.2d 463, 464 (1982) (amendment of
statute shows legislative intent to change effect of existing law).
In this case, the evidence showed that the victim sustained a black
eye, numerous bruises and abrasions, injury to her back, and two facial
lacerations - one resulting in a permanent scar. Although the permanent
facial scar was not perceivable by the jury from across the courtroom, and
the other injuries were temporary, the evidence was sufficient for the jury
to conclude the victim sustained "substantial disfigurement." Neither
visibility from a distance nor permanency are requisite to substantial
disfigurement. See State v. Carlson, 369 N.W.2d 326, 327-28 (Minn. Ct.
App. 1985) (two black eyes, facial bruises, bruises on neck and head, and
scratches on arm were sufficient for jury to conclude victim sustained
substantial bodily harm); State v. Ashcraft, 859 P.2d 60, 66 (Wash Ct. App.
1993) (bruises and bite mark show "temporary but substantial
disfigurement"); see also State v. Jennings, No. CX-96-2093, 1997 WL
292162, at *1 (Minn. June
3, 1997) (holding that victim suffered "substantial bodily harm" from
"temporary but substantial disfigurement" resulting from "swelling and a
cut in the area of the right eye that required six stitches").
Defendant further argues that the jury's determination of substantial
disfigurement should have been supported by expert medical testimony.
Whether a proof of an element of a crime meets the standard of
"substantial" however, is not a medical determination but is a question of
fact for the jury. State v. Blakeney, 137 Vt. 495, 500, 408 A.2d 636,640
(1979). Indeed, the jury is free to make this determination even in the
absence of medical testimony. See State v. Sorrel, 152 Vt. 543, 547, 568 A.2d 376, 378 (1989) (holding that medical testimony was not necessary for
a jury to determine whether the defendant's choking of the victim put her
in "substantial danger of death"). In this case both the emergency room
doctor and the victim's personal physician testified to the extent of
victim's injuries. The jury viewed the scar and was shown photographs of
the temporary injuries. This evidence provided ample support for the
jury's guilty verdict on the aggravated assault charge. That the
physicians chose not to characterize the disfiguring injuries as
"substantial" is of no consequence.
Defendant's second claim is that the trial court erred in admitting a
recording of the 911 telephone call the victim placed during the incident.
Defendant claims that the tape, which was played for the jury several
times, was not properly authenticated, was not the best evidence, and
contained inadmissible hearsay evidence. A trial court's evidentiary
rulings are left to its sound discretion, and we will not reverse absent an
abuse of that discretion. State v. Corliss, 168 Vt. 333, 337, 721 A.2d 438, 442 (1998).
A tape recording is authenticated for admissibility "by evidence
sufficient to support a finding that the matter in question is what its
proponent claims." V.R.E. 901(a). In this case, the State could
authenticate the recording by "[i]dentification of a voice, . . . by
opinion based upon hearing the voice at any time under circumstances
connecting it with the alleged speaker." Id. 901(b)(5). "The
identification and authentication of the tapes is an issue to be ruled upon
by the trial court on the basis of relevance and reasonable certainty."
State v. Mecier, 138 Vt. 149, 152, 412 A.2d 291, 294 (1980). At trial, the
court held a foundational hearing out of the presence of the jury in which
the victim identified her own voice on the 911 tape. The court ruled that
this identification was sufficient to authenticate the tapes.
In reviewing the trial court's decision, we note that the test for
authenticating evidence is not a demanding one, and that some questions
regarding a piece of evidence's origin or chain of custody are permissible.
"The test for a foundation for admissibility is not absolute certainty. It
only requires that the evidence be of demonstrable relevance and of
sufficient meaningful substance to be justifiably relied upon as a fact by
the jury, rather than an insubstantial invitation to conjecture." Id., 412 A.2d at 293 (internal quotations omitted). In Mercier, we upheld the
authentication of tapes made by a sheriff of telephone conversations with
the defendant while he was barricaded in his house after shooting his wife
and daughter. At trial, the sheriff testified that he was familiar with
the defendant's voice and that the tapes were continuous despite several
gaps within. We held that under these circumstances the tapes were
identified with "reasonable certainty." Id. at 153, 412 A.2d at 294.
Here, defendant points out that there are unexplained stops and starts in
the tape, and that there are unidentified voices on the tape (i.e. the 911
operator). These aspects of the tape, however, do not diminish the
relevance of the victim's statements made in the course of the attack, or
cast any
doubt on the victim's identification of the voice on the tape as her own.
Similarly, although defendant highlights some circumstances that may give
rise to doubts about the 911 tapes, "the defects in proof here are such
that a jury could have found the tapes believable for the accuracy of their
contents beyond a reasonable doubt." Id., 412 A.2d at 294; see also State
v. Connarn, 138 Vt. 270, 274-75, 413 A.2d 812, 815 (1980) ("The identity of
the specimen need not be proved beyond a possibility of doubt, but the
circumstances must be such as to establish a reasonable assurance of the
identity of the specimen although all possibility of tampering is not
excluded."). The tape was properly authenticated by the victim's
identification of her own voice. Thus, the court did not err in admitting
the tapes.
Defendant also objects to the admission of the tape on the grounds
that there was no explanation offered as to why the original recording was
not offered. In admitting the tape, the trial court did not determine
whether the tape was the original or a duplicate. In this case, however,
there is no need for the State to produce evidence that the tape played was
the original, because whether it was the original or a duplicate is
inconsequential in light of the fact that V.R.E. 1003 allows for the
admission of duplicates. See Mills v. Mills, 167 Vt. 567, 568, 702 A.2d 79, 81 (1997) (mem.) (holding that "[t]he best-evidence rule did not
require plaintiff to introduce the original tape, nor did it require
plaintiff to show that the proffered tape was a duplicate"). V.R.E. 1003
states that duplicates are admissible to the same extent as an original
unless there is a question as to the authenticity of the original or it
would be prejudicial to admit a duplicate. As we held above, there is no
question as to the authenticity of the original. Nor does defendant
identify any prejudice that he would suffer if the tape admitted was a
duplicate. Therefore, V.R.E. 1003's elements were met, and the tape was
properly admitted.
Finally, defendant argues that the tape recordings, even if authentic,
contain inadmissible hearsay evidence. The court ruled that the victim's
statements, which were being admitted for their content, fell clearly
within the excited utterance exception to the hearsay rule. V.R.E. 803(2).
That rule allows "[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the
event or condition" to be admitted despite the hearsay rule. Id. Given
that the 911 telephone call was made while defendant's attack was ongoing,
the court's conclusion that these statements were excited utterances, and
therefore trustworthy, is reasonable. See In re Estate of Peters, 171 Vt.
381, 391, 765 A.2d 468, 476 (2000) ("rationale for [excited utterances]
exception lies in the assumption that a person's powers of reflection and
fabrication will be suspended when she is subject to the excitement of a
startling event"). There was no error in admitting the 911 tape.
Defendant next argues that the court's instructions to the jury on
"serious bodily injury" and regarding the expert medical testimony were
erroneous. Defendant asserts that the court erred when it included only
two of the four disjunctive elements of "serious bodily injury." Defendant
also claims that the court's instruction diminished the value of the
medical expert testimony regarding the victim's injuries, which undermined
the defense's theory of the case. As discussed above, 13 V.S.A. § 1021(2)
defines "serious bodily injury" as one of four elements: "bodily injury
which creates a substantial risk of death or which causes substantial loss
or impairment of the function of any bodily member or organ or substantial
impairment of health, or substantial disfigurement" (emphasis added). The
court instructed the jury on only two of these elements as follows:
"serious bodily injury means any bodily injury which, in pertinent part,
creates or causes at least one of the following two. One, a substantial
impairment of health; or, two, substantial disfigurement."
Defendant claims that by failing to instruct on the other two elements,
namely "substantial risk of death" or "substantial loss . . . of the
function of any bodily member or organ," 13 V.S.A. § 1021(2), the court
relieved the State of part of its burden of proof on elements of the crime.
We must review the jury instructions in their entirety to determine
whether they sufficiently guided the jury without a prejudicial impact on
deliberations. Couture, 169 Vt. at 230, 734 A.2d at 530. Thus, the
standard of review is whether the instructions taken as a whole breathe the
true spirit of the law, such that the jury has not been misled. See State
v. Roy, 151 Vt. 17, 24, 557 A.2d 884, 889 (1989). Even if the instructions
are not as well-worded as we or defendant might desire, we will not reverse
a conviction for error in the instructions if that standard has been met.
State v. Dann, 167 Vt. 119, 132, 702 A.2d 105, 113 (1997).
There was no error in the instructions. Section 1021(2)'s definition
of "serious bodily injury" was written in the disjunctive, meaning that the
State must prove only one of the elements to meet the definition, rather
than all four. State v. Carpenter, 155 Vt. 59, 63, 580 A.2d 497, 500
(1990). In this case, there was no allegation that defendant's actions
created a "substantial risk of death" or caused the substantial loss of
function of a body part. These elements were never part of the State's
case, and no evidence was presented that would have allowed a jury to
conclude that these elements were met. To omit these elements of the
definition from the instruction, therefore, was a valid decision designed
to avoid confusing the jury. The trial court was not required to instruct
the jury on all four disjunctive elements of "serious bodily injury" where
there was no evidence to support two of those elements.
Defendant also complains that the trial court's instruction on the
medical expert testimony undermined that testimony and encouraged the
jurors to disregard it. The complained of instruction was as follows:
You should distinctly understand that whether or not an
expert has given an opinion about whether an element of any
charged offense or claim existed, it remains your
responsibility to determine whether such an element has been
proven in this case. For example, you should not simply
substitute the medical opinion of a doctor as to whether Ms.
Benson suffered an injury which created substantial
impairment of health or substantial disfigurement for your
own judgment based upon all the evidence and the legal
definitions of such terms which I will give you. Rather, you
should consider the opinions and conclusions of any expert as
you would any witness in the case and reach your own
determinations in accordance with the facts you find from all
the evidence and the law as I am now instructing you.
Defendant contends that this instruction harmed his case, because his
defense at trial hinged largely on the medical testimony, which did not
characterize the victim's injuries as "serious bodily injury."
The instruction was proper. The purpose of the instruction was to
inform the jury that what is "serious bodily injury" is for the jury to
decide, not anyone else. Although V.R.E. 704 allows an expert to testify
as to the ultimate issue to be decided, that testimony is not entitled to
any particular reverence. Rather it is the province of the jury to
determine what weight to accord expert witness testimony. Keus v. Brooks
Drug, Inc., 163 Vt. 1, 5, 652 A.2d 475, 478 (1994). A doctor's conclusion
about what is a serious bodily injury is a separate matter from what is a
"serious bodily injury" according to 13 V.S.A. § 1021(2). Moreover, we
have made clear that expert testimony may not be used to allow a witness to
give legal conclusions. Riess v. A.O. Smith Corp., 150 Vt. 527, 531, 556 A.2d 68, 72 (1988). Because of the possible prejudice that results from
expert testimony
regarding the ultimate issue to be decided, "careful instructions to the
jury" are required. Id. at 532, 556 A.2d at 72. The court's instruction
served precisely this cautionary function.
Defendant next claims that the trial court violated his privilege
against self incrimination by improperly considering his silence in the
sentencing process as a basis to enhance his sentence. Upon advice of
counsel, defendant remained silent at the interview conducted as part of
the pre-sentence investigation (PSI). Defendant asserts that the PSI was
flawed because it contained impermissible inferences based on his silence,
in that the investigator concluded that defendant showed no remorse for the
crimes. After receiving the PSI, the trial court sentenced him to a term
of two to six and one-half years in prison. Defendant argues the court
erred by accepting the PSI, and by holding defendant's silence at the
sentencing itself against him.
The first flaw in defendant's argument is his contention that the
court's refusal to grant him probation in lieu of jail time is a sentence
enhancement. We do not accept this characterization. The trial court's
sentence was within the statutory guidelines for the crime for which he was
convicted. See 13 V.S.A. § 1043(b) (first degree agravated domestic
assault punishable by not more than fifteen years prison, or $25,000 or
both). It is settled law that a trial court's denial of a sentence
reduction does not constitute sentence enhancement. In State v. Sims, 158
Vt. 173, 189, 608 A.2d 1149, 1158 (1991), we stated that "we are
unprepared to equate the possibility of leniency with impermissible
punishment . . . . If we were to characterize the denial of a reduction as
a penalty, it would be to say that defendants who express genuine remorse
for their actions can never be rewarded at sentencing." (internal citations
omitted). That defendant was sentenced to a prison term, rather than
probation, is not an improper enhancement.
Defendant's claim that the trial court erred by considering his
silence at the PSI and the sentencing hearing is also without merit.
Defendant cites the United States Supreme Court's decision in Mitchell v.
United States, 526 U.S. 314 (1999), as support for his proposition that a
trial court may not draw an adverse inference from defendant's silence at
sentencing. In Mitchell, however, the issue was whether a trial court may
draw an adverse factual inference from a defendant's silence at sentencing
after she has voluntarily entered into a guilty plea. Id. at 316-17.
Here, the court did not rely upon defendant's silence at the PSI to draw a
negative inference about the facts or circumstances of his criminal
behavior, but rather considered defendant's silence at the PSI as one
factor in determining whether defendant had accepted responsibility and
expressed remorse for his violent criminal behavior. See id. at 330
(expressly not reaching the question of whether a defendant's silence may
bear upon the determination of a lack of remorse, or upon acceptance of
responsibility for purposes of downward sentencing adjustments).
Indeed, it is entirely proper for a court to consider whether a
defendant has accepted responsibility for the offense at sentencing without
violating his privilege against self-incrimination. In State v. Gorbea,
169 Vt. 57, 61, 726 A.2d 68, 71 (1999), we affirmed "the general rule . . .
that a sentencing court may properly consider a defendant's failure to
accept responsibility for the offense without violating a defendant's
privilege against self-incrimination." A key element in a claim that the
privilege against self-incrimination was violated is whether the testimony
was compelled. McKune v. Lile, __ U.S. __, __, No. 00-1187, 2002 WL
1270605, at *8 (U.S. June 10, 2002). That determination, however, is
mitigated by the context in which the "testimony" is sought. Thus, a
"broad range of choices that might infringe constitutional rights in free
society fall within the expected conditions . . . of those who have
suffered a lawful conviction." Id. Given the sentencing
court's broad discretion in imposing sentences, State v. Moquin, 138 Vt.
160, 162, 411 A.2d 1355, 1357 (1980), whether defendant spoke at the PSI
would not necessarily have had a direct effect on the determination of the
duration and type of defendant's sentence. Rather, whether defendant
admits responsibility for his crime is but one factor among many that the
court considers. Therefore, the choice faced by defendant at the PSI is
not one that requires defendant to produce "compelled" testimony. In this
situation, the court's responsibility to ensure proper sentencing based on
statutory factors overrides any perceived right not to speak at various
sentencing proceedings, to the extent that the court may consider whether
defendant accepted responsibility for his actions. See McKune, __ U.S. at
__, 2002 WL 1270605, at *9-10 (privilege against self-incrimination not
violated where the defendant refused to admit responsibility for his crimes
in mandatory sexual abuse treatment program); see also Ohio Adult Parole
Auth. v. Woodard, 523 U.S. 272, 286 (1998) (voluntary clemency interview
does not violate privilege against self-incrimination even though adverse
inferences may be drawn against the defendant because no testimony is
compelled). Therefore, defendant's protections against self-incrimination
were not violated when the court accepted the recommendations of the PSI.
Moreover, defendant was not silent at his sentencing hearing.
Instead, the transcripts reveal that defendant spoke to the court about his
work habits, family life, personal generosity, and his past feelings toward
the victim. Most notably, defendant specifically asserted to the court, "I
am very sorry that somebody got hurt in the long run because I don't want
nobody to get hurt." The trial court considered these statements and
concluded that they did not sufficiently express remorse, and did not
indicate that defendant had accepted the consequences of his own actions.
See Sims, 158 Vt. at 188, 608 A.2d at 1158 (a sincere demonstration of
remorse constitutes an important step
toward rehabilitation). In addition to considering the extent of
defendant's remorse, the trial court considered other factors, including
the seriousness of the crime, the nature of the victim's injuries, and
defendant's past criminal history. Based on an evaluation of all those
factors, the court concluded that defendant was not a good candidate for
probation. Because the court's sentence was within the statutory limits,
and the court properly considered the PSI, there is no error.
Defendant next claims that the trial court erred when it denied his
request for access to the private residence that was the crime scene.
Defendant filed a motion seeking a court order compelling the current
occupants to allow him access to their home. At the time of the hearing on
the motion, the victim no longer lived in the home where the crime occurred
and the current occupants did not want defendant or defense counsel
inspecting their home or their property. Defendant argues that because the
victim previously allowed the state to inspect her home and to take
photographs, the court should have ordered the current occupants to allow
him similar access. We disagree.
Under V.R.Cr.P. 16(a)(2) when the prosecutor has custody of or
controls a crime scene he must permit the defense access. The rule,
however, imposes no duty on the prosecutor who does not have control of the
crime scene. (FN1) Id. In this case, defendant does not dispute that the
victim, her family, and the subsequent occupants of the house,
respectively, had and maintained control of the crime scene - the
prosecutor had neither the duty, nor the authority, to grant the defense
access.
A defendant's need for access to a crime scene controlled by a private
third party must be balanced against the property occupants' right to
privacy. Courts have generally struck that balance by requiring a
defendant to make some showing that the requested intrusion is relevant and
material to the defense. See Bullen v. Superior Court, 251 Cal. Rptr. 32, 34 (Cal. Ct. App. 1988) (defendant must show plausible justification and
good cause to warrant intrusion into private home); People v. Poole, 462 N.E.2d 810, 812-13 (Ill. App. Ct. 1984) (defendant's request to enter
private home to take pictures denied where defendant could not establish
that pictures would be probative); People v. Nicholas, 599 N.Y.S.2d 779,
783 (N.Y. Sup. Ct. 1993) (denying right to inspect private property where
no showing that investigation "would yield relevant" information different
from that already received from photographs of the scene); State ex. rel.
Beach v. Norblad, 781 P.2d 349, 350 (Or. 1989) (court did not have
authority to order third party to open her home to defense counsel and
expert); Henshaw v. Commw., 451 S.E.2d 415, 419 (Va. Ct. App. 1994)
(defense counsel must make prima facie showing on requested inspection's
relevance and materiality). Here, defendant offered no reason or
justification why the court should order the occupants to allow him to
enter their home. Defendant claims that requiring him to show that
inspection of the crime scene would yield relevant material evidence
violates attorney work product privilege. (FN2) It is quite possible,
however, that defendant could have given the court some indication as to
why he needed to inspect the premises without revealing attorney work
product. See Killington, 153 Vt. at 647, 572 A.2d at 1379 ("The
work-product exemption is a narrow one."). It is telling that even before
this Court, defense counsel has not indicated what information he hoped to
gain from access. Given the need for the court to consider a property
owner's right to privacy, defendant may not hide behind the attorney work
product privilege to relieve himself of the burden of making a showing of
relevance and materiality.
Indeed, it is not clear that even had defendant attempted to meet this
prima facie burden, that he would have succeeded in identifying a
sufficient reason for the inspection. The State provided copies of its
crime scene photographs to the defense, the victim testified at trial, and
there was overwhelming evidence of defendant's guilt. On the record there
is no indication how defense strategy would have changed had defense
counsel seen the crime scene firsthand. See Bullen, 251 Cal. Rptr. at 34
(defense counsel's reasons that it was necessary to "view the scene of the
crime, observe spatial distance, [and] investigate possible defense
theories" were "conclusional" and "inadequate" to justify intrusion into
private home). Therefore, the court did not err in denying defendant's
request for access to the crime scene.
Defendant takes issue with three aspects of the trial that he terms
"experimental trial procedures." First, defendant asserts that his jury
was not selected randomly because jurors were selected from a list of all
the jurors in the pool that day. Second, defendant claims that the court
should not have allowed the jurors to take notes during the trial. Third,
defendant claims that the court should have given the jury preliminary
instructions based on the crimes charged before the trial began.
Defendant's arguments are unavailing. First, common sense
demonstrates that, in fact, his jury draw was random. It is uncontested
that the jury pool, that is the forty people selected for duty that day,
was randomly selected from a list of potential jurors. The fact that those
randomly selected
people were then placed on a list, and that list was followed in order does
not disrupt the "randomness" of the panel selected. One randomly created
list is no more fair or impartial than any other. Defendant cites no case
to support his contention that the list of randomly selected jurors must be
reshuffled between each pool selection. Defendant's right to challenge the
jury pool is limited to "a right of rejection, not one of selection . . . .
Thus, defendant does not have a right to any specific juror; his right is
to a fair and impartial juror." State v. Calloway, 157 Vt. 217, 220, 596 A.2d 368, 371 (1991) (internal quotations omitted). Absent any argument
that the jury in this case was unfair or partial, there is no error.
Nor do we find that the "experimental" procedures of juror note-taking
and preliminary instructions were improper. It is becoming increasingly
common for judges to use new practices "to assist the jurors in their
consideration of the evidence and the law, and in carrying out, with
increased confidence and satisfaction, their role and responsibilities as
the ultimate arbiters" of cases. Jury Trial Innovations in Massachusetts,
xvii, (Hon. P. Lauriat ed., 2000). Specifically, juror note-taking has
become widespread, and in fact is specifically authorized by our civil
rules. See, e.g., Ariz. R. Crim. P. 18.6(d); Ma. Super. Ct. R. 8A;
V.R.C.P. 39(e). A similar rule allowing note-taking in criminal trials has
been proposed in Vermont by our Committee on Jury Communications,
Understanding and Deliberation. That the rule has not yet become official,
however, does not indicate error. The trial court was within its
discretion in permitting note-taking. See, e.g., Esaw v. Friedman, 586 A.2d 1164, 1168 n.9 (Conn. 1991) (collecting cases recognizing vast
majority of courts that permit trial judges to allow note-taking within
their discretion). As an added precaution, the court gave the jury an
instruction regarding the appropriate use of their notes to ensure that the
jurors did not accord their notes undue weight. See Lauriat, supra, at
25-26 (sample juror instructions similar to the one issued by this court).
The use of preliminary juror instructions was similarly acceptable.
Preliminary instruction is useful to "help the jury identify, recall, and
evaluate the pertinent evidence [and] enhance[] juror's ability to remember
information presented at trial and to link the evidence to relevant
issues." Lauriat, supra, at 54. In any event, defendant has failed to
demonstrate any prejudice resulting from the preliminary jury instructions.
We disagree with defendant's claim that the "experimental procedures" are
"structural error" that do not require defendant to show prejudice. We
have stated that "structural error" involves a "defect that affected the
framework in which the trial proceeded, and thus, prevented the trial from
serving its function as a vehicle for determining the guilt or innocence of
the defendant." In re Hunt, 163 Vt. 383, 387, 658 A.2d 919, 922 (1995)
(internal quotations omitted). Preliminary instructions do not prevent the
trial court from determining defendant's guilt or innocence, particularly
where there is no claim that the instructions stated the relevant law
incorrectly. Accordingly, there was no error.
Defendant further asserts that the court unreasonably limited the
scope of defendant's cross-examination. Defendant identifies a few lines
of questioning of the victim and another witness that the court did not
permit. Specifically, defendant was not allowed to question the victim on
the source of her medical insurance for an unrelated incident, he was
limited in the extent to which he could question the victim on her prior
relationship with defendant, and he was restricted in questions regarding a
business relationship between defendant and another witness. Defendant
argues that these limitations violated his constitutional right to confront
witnesses against him. There was no error.
A defendant's right to confrontation is not absolute, and is limited
by the requirements that evidence must be relevant, V.R.E. 402, and more
probative than prejudicial, V.R.E. 403. State v. Findlay, 171 Vt. 594,
595, 765 A.2d 483, 486 (2000) (mem.). The trial court's resolution of
evidentiary issues is discretionary, and "may impose reasonable limits on
the scope of a defendant's cross-examination if it is based upon concerns
about, among other things, harassment, prejudice, confusion of the issues,
the witness' safety, or interrogation that is repetitive or only marginally
relevant." State v. Fuller, 168 Vt. 396, 404, 721 A.2d 475, 481 (1998)
(internal quotations omitted). In Findlay, we overturned a limitation on
cross-examination where the defendant sought to question a police officer
about the details of the drug purchase that was the criminal transaction at
issue. In this case, by contrast, it is apparent that the trial court
limited cross-examination on issues that were irrelevant or overly
prejudicial to the issue of defendant's guilt or innocence. There was no
abuse of discretion.
Finally, defendant contends that the State violated V.R.Cr.P. 26(c)
when it introduced evidence of defendant's prior bad acts without giving
defendant notice. V.R.Cr.P. 26(c) provides that when the State "intends to
offer evidence of other criminal offenses under Rule 404(b) of the Vermont
Rules of Evidence, . . . at least seven days before the trial [the state]
shall furnish to the [defendant] a written statement of the acts or
offenses it intends to offer." At trial, the State elicited from the
victim several statements that defendant allegedly threatened to kill her
or her dog, and the victim's fear that, on the night of the incident,
defendant would return to the house and burn it down. The State did not
give notice that it would offer these statements in evidence. Defendant
claims that these statements fall within V.R.Cr.P. 26(c), and thus he was
entitled to notice before the State could use them.
Regardless of whether these statements fell within the coverage of
Rule 26(c), defendant has failed to explain how he was harmed by the lack
of notice. The contested statements were ancillary to the incident at
issue, and not central to either the State's prosecution or the defense's
theory of the case. The evidence of defendant's guilt in this case was
overwhelming, and thus whether or not defendant previously threatened her
or her dog is not particularly probative of what happened on the night in
question. We therefore find that any error was harmless. See State v.
Kinney, 171 Vt. 239, 244, 762 A.2d 833, 838 (2001) (an error is not grounds
for reversal if we can determine beyond a reasonable doubt that the result
would have been the same in the absence of the error).
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
-------------------------------------------------------------------------------
Footnotes
FN1. Defendant implies that the prosecution impeded defendant's access to
the crime scene when it explained to the court that the current occupants
did not wish to grant defense counsel access to the property. There is no
merit to this charge. At the hearing on defendant's motion, defense
counsel was unable to tell the court the identity of the current occupants.
The State's Attorney was asked by the court to fill in the factual gaps
that the defense did not have. There is no evidence that the State's
Attorney contacted or advised the property owners to not allow defense
counsel access. V.R.Cr.P. 16 was not violated.
FN2. Defendant's reliance on Killington v. Lash, 153 Vt. 628, 572 A.2d 1368
(1990), to support his proposition that a moving criminal defendant may be
relieved of his prima facie duty to show materiality, before gaining
compulsory access to a private residence, however, is misplaced. In
Killington we dealt with the issue of private access to public records with
respect to the specific status of a public agency and its ability to
exercise both executive privilege and attorney work product privilege.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
