State v. LeClaire

State v. LeClaire (2001-411); 175 Vt. 52; 819 A.2d 719

2003 VT 4

[Filed 24-Jan-2003]


       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.

       	
                                  2003 VT 4

                                No. 2001-411


  State of Vermont	                         Supreme Court

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

  Walter LeClaire	                         November Term, 2002


  Brian L. Burgess, J.

  Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
    Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


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

       ¶  1.  AMESTOY, C.J.   Defendant appeals his conviction after a jury
  found him guilty of murder in the second degree for causing mortal head
  trauma to a sixteen-month-old child left in his care.  Defendant argues
  that he is entitled to a new trial because the Chittenden District Court
  erred by:  (1) denying his motion to dismiss in which he claimed that the
  State failed to collect and preserve potentially exculpatory evidence; (2)
  prohibiting him from introducing certain evidence at trial in his defense;
  (3) admitting as evidence the statements he made to the police while on
  furlough; (4) denying his request for a presentence investigation report;
  and (5) failing to hold an evidentiary hearing on his motion for a new
  trial.  We affirm. 
   
       ¶  2.  On March 3, 1999, a call was made from defendant's home to
  911, reporting that a sixteen-month-old girl was not breathing.  Within one
  minute and a half, a rescue team arrived.  The rescue team found the child
  not breathing, with no heartbeat and no electrical activity.  A medical
  expert testified at trial that this condition indicates that at least ten
  minutes must have elapsed from the time the child was injured to the time
  the rescue team arrived and was unable to detect electrical activity.  A
  CAT scan performed at the hospital revealed that the child had endured
  significant trauma to her brain with enough force to cause bleeding in
  several areas, dramatic retinal hemorrhages, and retinal detachment.  One
  retinal specialist testified that he had examined thousands of eyes and had
  never witnessed a more dramatic example of an injury consistent with a baby
  who had been shaken.  When defendant was interviewed at the hospital that
  day, he told police that his dog knocked the child over and that she struck
  her head on a toolbox.
        
       ¶  3.  The medical testimony presented at trial directly contradicted
  defendant's claim that the dog pushed the child.  For instance, one medical
  expert, who treated the child at the hospital, testified, "[T]his dramatic
  presentation, that is bleeding within the brain serious enough to cause a
  cardiac arrest, was not consistent with the stated mechanism of injury." 
  The doctor went on to say that the child's injury instead "would be
  consistent with a head injury with forces seen in moderate to high speed
  motor vehicle accidents. . . . from children who have been ejected from
  cars and strike their head on the ground or trees . . . ."  The medical
  experts agreed: defendant's explanation that the child was knocked over by
  a dog onto the toolbox was inconsistent with the multiple injuries to the
  child's head and the extreme retinal bleeding found in the child's eyes. 

       ¶  4.  In its decision denying defendant's motion for acquittal, the
  trial court found,
   
    The evidence was essentially uncontroverted that the total fatal
    head trauma could not be accounted for, and was plainly
    inconsistent with, defendant's explanation for the death of the
    child.  The dog's push and the infant's less than two-foot fall
    onto the toolbox, as described and demonstrated by defendant, was
    not nearly equivalent to the high speed collision, long fall or
    severe shaking described by the physicians as necessary to cause
    the combined sub-dural, sub-arachnoid and retinal bleeding.  If
    the dog's push could have caused the torque required for the
    tissue-tearing hematoma, it did not appear to account for all
    three injuries, or for the necessary velocity and force to cause
    death.  If the impact from the dog's push could have caused
    retinal bleeding, the doctors agreed that it did not account for
    the extraordinary degree of hemorrhaging in this case.

  The court explained that most of the medical experts testified, and none
  disagreed, that the child's injuries were consistent only with 'shaken
  infant' or 'shaken impact' syndrome.

       ¶  5.  An autopsy was done on the child's body, in March 1999, at
  which a small blood sample was collected but not a hair sample.  Also in
  early March 1999, police collected physical evidence from defendant's home,
  including the toolbox.  One to two months after the autopsy and burial of
  the body, hairs were found on the toolbox collected from defendant's home.  

       ¶  6.  On May 17, 1999, defendant filed a motion with the district
  court to preserve, test, and/or provide duplicate material to the defense. 
  In his motion, defendant requested the State to "preserve and provide to
  the defendant for independent testing hair samples of the decedent" and
  also requested "an adequate comparison sample from [police] evidence . . .
  [which] contains hair."  The State filed a letter, on May 26, 1999, in
  which it responded that hair samples were not collected from the victim but
  that a mitochondrial DNA analysis could be performed to test the hair
  sample by using an available sample of the victim's blood instead of hair. 
  The judge ruled the motion as moot, stating that "there's nothing to
  preserve here" since the State did not have a hair sample from the victim. 
  The court also pointed out at the hearing that there was "another way . . .
  for you to get hair samples [from the victim] if that were required as a
  last resort," referring to exhumation.
   
       ¶  7.  In April 2000, defendant filed a motion to dismiss in which
  he again argued that the State had failed "to collect and preserve such
  evidence as may be exculpatory in nature" and "to produce such evidence
  after having been requested to do so."  The court held a hearing on the
  motion to dismiss several months later.  At the hearing, a medical expert,
  Dr. Buell, testified that a mitochondrial DNA test could be performed on
  the unidentified hair from the toolbox by using a blood sample, but that
  the mitochondrial DNA test of hair is statistically weaker than a nucleus
  genomic DNA test, especially because a mother and all of her children have
  the same mitochondrial DNA.  Additionally, Dr. Buell testified that a
  microscopic exam of the unidentified hair might show whether the hair "was
  crushed, pulled out or broken."  Following the expert's testimony, the
  judge observed, "I asked the last time whether there was anything in this
  hair to indicate that it was left there other than by pulling it out of the
  sky, and I still don't have an answer to that. . . . is there any evidence
  that the hair was there by virtue of anything other than gravity?" 
  Defendant did not offer anything in response at that time.  Subsequently,
  the State filed a motion in limine to exclude evidence relating to the
  unidentified hair on the toolbox.  The court granted the motion, declaring
  that the evidence proffered by defendant in this regard was irrelevant.  As
  noted, the jury returned a verdict of guilty after the trial, and this
  appeal followed.  

                                     I.
   
       ¶  8.  Citing Brady v. Maryland, 373 U.S. 83 (1963), defendant first
  contends the State had an obligation to produce a sample of the victim's
  hair for testing once defendant requested it and that the State's failure
  to do so denied defendant due process of law.  When the prosecution fails
  to disclose evidence that is favorable to the accused and material to the
  accused's guilt or punishment, the prosecution violates the defendant's due
  process rights.  State v. Goyette, 156 Vt. 591, 597, 594 A.2d 432, 436
  (1991); see Brady, 373 U.S.  at 87 (holding that "the suppression of
  evidence favorable to an accused upon request violates due process where
  the evidence is material either to guilt or to punishment . . . .").  There
  are three elements of a true Brady violation: (1) the State must have
  suppressed evidence; (2) that evidence must be favorable to the defendant
  because it is either exculpatory or impeaching; and (3) the defendant was
  prejudiced as a result.  Strickler v. Greene, 527 U.S. 263, 281-82 (1999).  

       ¶  9.  The purpose of the first element, suppression of evidence by
  the State, and Brady as a whole is "to assure that the defendant will not
  be denied access to exculpatory evidence only known to the Government." 
  United States v. LeRoy, 687 F.2d 610, 619 (2d Cir. 1982).  Therefore, where
  the defendant has notice of the essential facts which would allow the
  defendant to take advantage of any exculpatory evidence, and fails to do
  so, the defendant cannot then argue under Brady that the prosecution
  suppressed or failed to disclose such evidence.  See United States v.
  Zackson, 6 F.3d 911, 918 (2d Cir. 1993).  Here, defendant requested a hair
  sample from the child victim several months after the autopsy and burial
  had occurred.  A hair sample had not been taken during the autopsy, but the
  court made it clear to defendant that he could, if necessary, have the body
  exhumed to obtain a comparison hair sample.  Defendant never requested an
  exhumation order from the court as a method for retrieving a hair sample. 
  Accordingly, he has not established that the State improperly suppressed
  any evidence.   
   
       ¶  10.  Moreover, defendant has not established that the evidence
  would be favorable to him.  He requested a hair sample from the child in
  order to prove that the unidentified human hair on the toolbox came from
  the child during the purported fall.  Despite the court's repeated
  requests, however, defendant failed to show how the unidentified hair found
  on the toolbox, even if it was the child's hair, would have been favorable
  or relevant to his case.  Prior to receiving her fatal injury, the child
  had lived in defendant's home for several weeks.  The court noted that her
  hair could have fallen onto the toolbox at any time during this period. 
  Defendant nevertheless declined to do a microscopic examination of the hair
  to look for any signs that the hair had been pulled out or broken as
  opposed to simply resting there as a result of the child living in the
  home.  All of these options, a microscopic exam for trauma to the hair,
  exhumation, and a mitochondrial DNA test, were available to defendant in
  advance of his trial.  Defendant has not made the requisite showing that
  the evidence would have been favorable to him, nor did he attempt to do so
  through any of these options.

       ¶  11.  Finally, defendant relies on our decision in State v. Goshea,
  137 Vt. 69, 75-76, 398 A.2d 289, 293 (1979), to argue that the State had an
  obligation under Brady to produce the evidence once defendant requested it. 
  In Goshea, a case in which the identity of the victim was a vigorously
  contested issue, we ordered a new trial when the State failed to inform the
  defendant during trial that a witness saw the alleged murder victim alive. 
  137 Vt. at 76, 398 A.2d  at 294.  Significantly, we determined in Goshea
  that the evidence in question was both favorable to the accused and
  relevant.  Id.  Defendant failed to make this essential showing in the
  present case.  Thus, we conclude that the trial court did not err in
  denying defendant's motion to dismiss for a Brady violation.

                                     II.

       ¶  12.  Defendant next argues that his constitutional right to present
  a defense was violated because he was prohibited from introducing evidence
  at trial regarding the hair found on the toolbox, and thus he is entitled
  to a new trial.  The State had filed a motion in limine to exclude any
  testimony that a hair was found on the toolbox or that the State had failed
  to perform a comparative analysis of the child victim's hair and the
  unidentified hair.  The trial court granted the State's motion on the
  ground that the hair and lack of a comparative analysis were not relevant
  under V.R.E. 401.  In its decision, the court explained, 
   
    Absent some indication that the hair reflects traumatic contact,
    or that the child's head reflects traumatic contact with the
    toolbox, or that the infant's death could have resulted from
    striking the box without such traumatic indication appearing, the
    presence of a single hair upon the toolbox is no more relevant
    than household dust.  Absent any proffer by defendant of injury
    consistent with head-to-toolbox contact, the failure of the state
    to conduct comparative analysis of decedent's hair is no more
    relevant than the state's failure to perform comparative analysis
    of the decedent's fingerprints or dental records; all for which no
    apparent reason appeared at the time of investigation or appears
    now.

  Defendant did not proffer any evidence in response to the court's inquiries
  regarding relevance.   
   
       ¶  13.  It is well settled that trial courts have wide latitude in
  determining whether to admit or exclude evidence.  State v. Little, 167 Vt.
  577, 579, 705 A.2d 177, 180 (1997) (mem.); State v. Hooper, 151 Vt. 42, 46,
  557 A.2d 880, 882 (1988) (trial judge has broad discretion in deciding
  questions of relevancy).  While courts enjoy broad discretion in deciding
  evidentiary matters, this discretion is limited in criminal cases by
  defendant's constitutional due process rights and right to confront
  witnesses against him.  State v. Webster, 165 Vt. 54, 56, 675 A.2d 1330,
  1332 (1996). 
   
       ¶  14.  Under V.R.E. 401, relevant evidence is evidence "having any
  tendency to make the existence of any fact that is of consequence to the
  determination of the action more probable or less probable than it would be
  without the evidence."  In State v. Hooper, 151 Vt. at 46-47, 557 A.2d  at
  882, we held that the trial court acted within its discretion in
  determining relevancy when it excluded evidence of the presence of semen on
  the victim of a sexual assault after a laboratory analysis concluded that
  it was scientifically impossible to determine whether or not the semen was
  from the defendant.  The Court found that the evidence was not probative of
  defendant's guilt or any other fact of consequence to the case, and thus
  the court properly excluded the evidence.  Id. at 47, 557 A.2d  at 882. 
  Similarly, the unidentified hair in this case was not relevant without some
  connection or showing that it makes a material fact "more probable or less
  probable than it would be without the evidence."  V.R.E. 401.  In light of
  the applicable standard of review and defendant's failure to show relevancy
  by linking the hair in some meaningful way to his defense, we cannot say
  that the trial court abused its discretion in excluding the evidence. 
  Little, 167 Vt. at 579, 705 A.2d  at 180 (this Court will not reverse a
  decision to exclude evidence absent an abuse of discretion resulting in
  prejudice).  

                                    III.

       ¶  15.  Defendant claims that the court should have granted his motion
  to suppress certain statements he made to police because he was on furlough
  at the time and did not receive Miranda warnings before making the
  statements.  Relying on Miranda v. Arizona, 384 U.S. 436 (1966) and Mathis
  v. United States, 391 U.S. 1 (1968), defendant argues that, as a
  furloughee, he was "in custody" when officers from the Burlington Police
  Department questioned him at the hospital on March 3, 1999, prior to his
  arrest.  Defendant bears the burden of proving that he was "in custody"
  and, therefore, entitled to Miranda warnings.  See Commonwealth v.
  Girouard, 766 N.E.2d 873, 880 (Mass. 2002) ("[T]he defendant bears the
  burden of proving that he was in custody."); State v. Howe, 136 Vt. 53, 59,
  386 A.2d 1125, 1129 (1978) (determining that appellant did not present
  evidence necessary to establish that he was "in custody" for Miranda
  purposes); State v. Garbutt, __ Vt. __, __, 790 A.2d 444, 448 (2001)
  ("Suspects not in custody are not entitled to Miranda warnings.").
   
       ¶  16.  Custody for Miranda purposes has been more narrowly defined
  than custody in other situations, such as federal habeas corpus.  Minnesota
  v. Murphy, 465 U.S. 420, 431 (1984).  Thus, defendant's use of Conway v.
  Cumming, 161 Vt. 113, 116-17, 636 A.2d 735, 737 (1993), to demonstrate that
  a furloughed individual is "in custody" is misplaced in the present
  context.  To determine whether an individual is in custody for Miranda
  purposes, the "ultimate inquiry is simply whether there is a 'formal arrest
  or restraint on freedom of movement' of the degree associated with a formal
  arrest."  California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon
  v. Mathiason, 429 U.S. 492, 495 (1977)).  We must make "an objective
  inquiry into the totality of the circumstances to determine if a reasonable
  person would believe he or she were free to leave or to refuse to answer
  police questioning."  State v. Willis, 145 Vt. 459, 475, 494 A.2d 108, 117
  (1985).  Here, defendant adds nothing to "the totality of the
  circumstances" beyond his argument - not made below - that he subjectively
  believed he was in custody.  The failure to proffer any evidence of
  restraint of movement or any other evidence associated with a formal arrest
  falls short of the defendant's burden to prove custody.  As the trial court
  noted, defendant "relies solely on his furlough status to argue that he was
  in custody."  That reliance is an insufficient basis to require a Miranda
  warning.  There was no error in admitting defendant's statements to the
  officers.

                                     IV.

       ¶  17.  Defendant next claims that the trial court erred in denying
  his request for a presentence investigation report (PSI).  Defendant
  contends that because he was sentenced to a maximum term of life
  imprisonment without parole, the court acted unreasonably in denying his
  request.  The argument is without merit.  

       ¶  18.  The purpose of a PSI is "to give to the sentencing judge the
  fullest possible information concerning the defendant's life and
  characteristics" so that the judge may impose an appropriate sentence. 
  State v. Ramsay, 146 Vt. 70, 78, 499 A.2d 15, 20 (1985).  However, under
  V.R.Cr.P. 32(c)(1), "the court, in its discretion, may dispense with the
  report, in the following situations: 

    (A) if the offense is a misdemeanor; 
    (B) if the defendant has two or more felony convictions; 
    (C) if the defendant refuses to be interviewed by a probation
    officer or requests that disposition be made without a presentence
    report; 
    (D) if it is impractical to verify the background of the
    defendant."
   
  While it may have been the better practice for the court to have ordered a
  PSI, defendant does not challenge the court's finding that defendant had
  "two or more felony convictions" and was, therefore, within the ambit of
  V.R.Cr.P. 32(c)(1)(B).  Moreover, defendant fails to demonstrate - or even
  allege - how the lack of a PSI prejudiced him.  Further, defendant makes
  no claim that he was sentenced on the basis of unreliable or insufficient
  information.  See State v. Patterson, 674 A.2d 416, 422 (Conn. 1996) ("The
  primary risk associated with the lack of a PSI is the possibility that the
  sentence imposed will be based on unreliable and insufficient
  information.").  The trial court did not abuse its discretion or otherwise
  commit error in refusing to order a PSI.  

                                     V.

       ¶  19.  Defendant's final claim is that the court committed reversible
  error by failing to hold an evidentiary hearing on his motion for a new
  trial, which was based upon claims of inadequate representation.  Defendant
  conceded, however, that his motion was filed after the ten-day limit of
  V.R.Cr.P. 33 had expired.  Thus, the court did not err in denying
  defendant's motion.  See State v. Grega, 170 Vt. 573, 575, 750 A.2d 978, 981 (1999) (mem.) (holding that trial court lacked subject matter
  jurisdiction because "motion for a new trial based on grounds other than
  newly discovered evidence must be brought within ten days of the verdict").  

       ¶  20.  A defendant claiming ineffective assistance of counsel may
  file a post-conviction relief action under 13 V.S.A. § 7131.  Should
  defendant decide to pursue this matter, he may properly file for relief
  under this statute.  Finally, due to defendant's ability to seek relief
  under 13 V.S.A. § 7131, we do not reach his coram nobis claim.  See In re
  Stewart, 140 Vt. 351, 354-55 n.1, 438 A.2d 1106, 1107 n.1 (1981) (refusing
  to reach the defendant's coram nobis claim where defendant could file under
  post-conviction relief statute).

       Affirmed.    


                                       FOR THE COURT:


                                       _______________________________________
                                       Chief Justice