State v. Messier

State v. Messier (2003-482); 178 Vt. 412; 885 A.2d 1193

2005 VT  98

[Filed 19-Aug-2005]


       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.


                                 2005 VT  98

                                No. 2003-482


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 1, Windsor Circuit

  Christopher Messier	                         December Term, 2004


  Theresa S. DiMauro, J.

  Heidi H. Woessner, Windsor County Deputy State's Attorney, White River
    Junction, for Plaintiff-Appellee.

  Matthew F. Valerio, Defender General, Henry Hinton, Appellate Attorney, and
    Dawn Matthews, Montpelier, for Appellant.


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned

        
       ¶  1.  SKOGLUND, J.  Defendant Christopher Messier appeals his
  conviction in the Windsor Circuit Court of reckless endangerment and
  disorderly conduct.  Defendant presents three issues on appeal: (1) whether
  13 V.S.A. § 1025 requires proof of a firearm's operability; (2) whether
  defendant was substantially prejudiced when a witness offered testimony at
  trial regarding defendant's admission to the witness, the content of which
  the State never disclosed to defense counsel; and (3) whether defendant was
  substantially prejudiced when the same witness referred to a prior plea
  agreement.  In sustaining defendant's conviction, we find that any
  prejudice arising from the witness's testimony was cured by the trial
  court's prompt curative instruction to the jury.  We further conclude that
  the State provided sufficient evidence of operability of the gun brandished
  by defendant.  Therefore, we affirm defendant's conviction. 


       ¶  2.  On the evening and early morning of October 5-6, 2002,
  defendant attended a benefit dance in the town of Sharon, Vermont, with his
  wife and a friend, Roberta Nason.  After four to five hours at the dance,
  the party of three and another friend, Fay-Ann Manning, returned to stay
  the night at Nason's home in South Royalton.  Nason went to bed between
  1:30 and 2:00 a.m., shortly after their return.  Manning stayed up to talk
  with defendant and his wife for about an hour until defendant, who had been
  drinking all night, abruptly became angry and went outside.  Manning could
  later hear defendant's voice among several people yelling outside.  The
  noise eventually woke Nason as well.

       ¶  3.  Meanwhile, Richard Whitham and David Slater were returning to
  their cars at Crossroads, a bar in South Royalton, located roughly 100
  yards downhill from Nason's trailer.  From the Crossroads parking lot,
  Whitham heard someone yelling that he wanted to kill Scott Durkee, the
  bar's owner.  Weeks earlier Durkee and defendant had exchanged words at the
  Tunbridge World's Fair; defendant apparently still harbored anger toward
  Durkee, who several years earlier had asked defendant not to return to
  Crossroads after repeated disturbances.

       ¶  4.  Whitham drove his truck up the hill to investigate and saw
  someone standing in the bushes with what looked like a gun pointed toward
  him, so he quickly returned to the bar to report what he had seen.  After
  calling the police, Durkee joined Whitham and Slater in the Crossroads
  parking lot, where they could see someone moving on the hill above and
  could hear a man shouting.  Whitham and Slater decided to confront the man,
  and charged up the hill toward Nason's trailer.
   
       ¶  5.  As they neared the trailer, both men recognized defendant,
  whom they had known for some years.  Both recalled that defendant was
  holding a shotgun, which Slater testified was pointed in his direction. 
  Slater knocked the gun away from defendant, and the men fought outside the
  trailer until someone from Crossroads yelled that the police were on their
  way.  Slater and Whitham left before the police arrived.  After speaking
  briefly with Durkee, the troopers drove to Nason's home, where they found
  defendant hiding under the trailer.  Once inside, they discovered a
  shotgun, which Manning and Nason identified as the firearm defendant had
  that night.

       ¶  6.  Defendant was convicted of disorderly conduct and reckless
  endangerment and acquitted of driving under the influence following a
  two-day jury trial.  On appeal, defendant contends that he was
  substantially prejudiced by two statements in Slater's testimony, and that
  the trial court erred when it failed to grant defendant's motion for a
  mistrial made in response to these statements.  Defendant also challenges
  the sufficiency of the State's evidence demonstrating that the firearm was
  operable. 

       ¶  7.  First, we reject defendant's argument that the State failed to
  demonstrate that the gun was operable, as required by 13 V.S.A. § 1025.  In
  2000, the Legislature amended § 1025 to add the emphasized language to the
  statute's last sentence:  

    A person who recklessly engages in conduct which places or may
    place another person in danger of death or serious bodily injury
    shall be imprisoned for not more than one year or fined not more
    than $1,000.00 or both. Recklessness and danger shall be presumed
    where a person knowingly points a firearm at or in the direction
    of another, whether or not  the actor believed the firearm to be
    loaded.  Recklessness and danger shall be presumed where a person
    knowingly points a firearm at or in the direction of another,
    whether or not the actor believed the firearm to be loaded, and
    whether or not the firearm actually was loaded.

  13 V.S.A. § 1025 (Cum. Supp. 2004) (emphasis added); see 1999, No. 149
  (Adj. Sess.), § 3 (adding underlined language). 
   
       ¶  8.  At this point, some background on our decisions concerning §
  1025 is instructive.  Under our original construction of § 1025, before the
  emphasized language above was inserted, whether a firearm pointed at
  another person was loaded or otherwise operational was irrelevant.  State
  v. Cushman, 133 Vt. 121, 124, 329 A.2d 648, 650 (1974).  In Cushman, we
  noted that in enacting the statute, "the Legislature's intent was to
  proscribe the pointing of all firearms at others."  Id.  Thus, we reasoned,
  "the danger to the victim is presumed once the jury decides that the
  defendant pointed a firearm in the direction of the victim."  Id. at 125,
  329 A.2d  at 651.

       ¶  9.  In State v. McLaren, 135 Vt. 291, 376 A.2d 34 (1977), we
  overruled Cushman's construction of § 1025, determining that the
  presumption of recklessness could not be construed to make irrelevant the
  actual dangerousness of the firearm itself.  Id. at 293, 376 A.2d  at 36. 
  To that end, we found that "the Legislature . . . intended to proscribe
  conduct which would place the victim in actual danger of death or serious
  bodily injury, not mere apparent danger."  Id.  As such, "[w]hether the
  firearm was unloaded or was otherwise inoperative is an essential issue in
  determining whether the victim was placed in an objective state of danger
  of death or serious bodily harm."  Id.; accord State v. Emilo, 146 Vt. 277,
  278, 501 A.2d 1188, 1189 (1985) (affirming defendant's conviction under §
  1025 where defendant pointed a loaded, though un-cocked, firearm toward a
  police officer).  In other words, McLaren required the State to prove that
  the firearm in question was loaded and operational.
   
       ¶  10.  The 2000 amendment explicitly overruled McLaren's holding
  requiring the State to prove a gun involved in an alleged violation of §
  1025 was loaded in order to obtain a conviction.  However, even after the
  amendment, the statute remains silent as to McLaren's requirement that the
  State prove operability.  In assessing the import of the amendment, two
  principles of statutory construction are relevant.  First, "[w]e must
  presume that the Legislature made changes in the law in light of the
  relevant decisions of this Court, and with knowledge of prior legislation
  on the same subject."  Thayer v. Herdt, 155 Vt. 448, 453, 586 A.2d 1122,
  1125 (1990); accord Heffernan v. Harbeson, 2004 VT 98, ¶ 9, 177 Vt. 239,
  861 A.2d 1149; State v. Anair, 123 Vt. 80, 81, 181 A.2d 61, 63 (1962);
  Donoghue v. Smith, 119 Vt. 259, 263-64, 126 A.2d 93, 96 (1956).  At the
  time the Legislature considered and enacted the amendment, the "relevant
  decisions of this Court"  included McLaren.  The available legislative
  history also indicates that the Legislature was aware of McLaren.  In
  particular, the decision was referenced during a House Judiciary Committee
  hearing, and it was acknowledged that the amendment was an attempt to
  change the result of the decision by allowing a charge under § 1025 whether
  or not the gun was loaded.  Hearing on S.0214 Before House Judiciary Comm.,
  1999-2000 Bien. Sess. (Vt. Mar. 24, 2000).  Thus, the Legislature was aware
  of McLaren's holding requiring proof that a gun involved in a violation of
  § 1025 was loaded and operable when it amended the statute.  
   
       ¶  11.  Second, we are mindful that "[p]rovisions of the original act
  or section which are repeated in the body of the amendment . . . are
  considered a continuation of the original law. . . .  Thus, rights and
  liabilities accrued under the provisions of the original act which are
  reenacted are not affected by the amendment."  Slocum v. Dep't of Soc.
  Welfare, 154 Vt. 474, 480, 580 A.2d 951, 955 (1990) (quotations omitted);
  see also Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 732 n.7 (2d
  Cir. 1994) (interpreting Vermont law and recognizing that "[w]here sections
  of a statute have been amended but certain provisions have been left
  unchanged, we must generally assume that the legislature intended to leave
  the untouched provisions' original meaning intact").  Putting this "rule of
  reenacted provisions" together with the presumption that the Legislature
  was aware of McLaren when it amended the statute leads us to one
  conclusion: the amendment did not do away with McLaren's requirement that
  the State demonstrate that a gun involved in a § 1025 violation was
  operable.  Thus, we decline the State's invitation to read the operability
  requirement out of § 1025. (FN1)

       ¶  12.  Accordingly, we must assess defendant's argument that the
  district court erred in denying his Motion for Acquittal in which he argued
  that the State did not present sufficient evidence of the gun's
  operability.  In reviewing the trial court's denial of defendant's Motion
  for Acquittal, we 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. Turner, 2003 VT
  73, ¶ 7, 175 Vt. 595, 830 A.2d 122 (mem.) (quotations omitted).  A judgment
  of acquittal is appropriate only if the State has failed to provide any
  evidence to support the verdict.  Id.
   
       ¶  13.  Here, the State did provide sufficient evidence to support
  the verdict.  Two witnesses testified consistently that they heard the
  ratcheting noise of the pump action of the gun that night.  A State Trooper
  also demonstrated the noise made by the gun's pump action on the stand. 
  There were shells found in defendant's vehicle, and the incident took place
  during hunting season.  Moreover, the gun itself was entered into evidence
  and available for the jury's inspection.  As the State observed, defendant
  adduced no evidence that the gun was not operable, and the gun was not a
  rusty antique, like the weapon at issue in Cushman.  Further, we agree with
  the State that nothing in our caselaw dealing with § 1025 suggests that the
  State must undertake ballistics or other laboratory testing in order to
  meet its burden on operability.  Thus, we reject defendant's argument that
  the district court erred in denying his motion for acquittal.

       ¶  14.  Next, we reject defendant's argument that he was entitled to a
  new trial based on two of Slater's statements during the trial: (1)
  testimony concerning an apology defendant made to Slater following their
  altercation; and (2) a reference to a plea agreement Slater thought had
  been negotiated between defendant and the State.  Defendant argues that the
  trial court's prompt curative instructions to disregard the two statements
  were insufficient to cure any resulting prejudice, and that the court
  should have granted a mistrial.  We disagree.  

       ¶  15.  The question before this Court regarding these two statements
  is whether the trial court committed reversible error when it denied
  defendant's motions for a mistrial.  The disposition of a motion for
  mistrial is discretionary, and, as such, a claim of error can be supported
  only where the trial court's discretion was either totally withheld, or
  exercised on clearly untenable or unreasonable grounds.  State v. Potter,
  148 Vt. 53, 57, 529 A.2d 163, 166 (1987).  Reversal is therefore
  appropriate only when the moving party demonstrates prejudice, which must
  be determined according to the facts of each case in the context of the
  entire proceeding.  Id. at 58, 529 A.2d  at 166.  Furthermore, when
  reviewing the sufficiency of a curative instruction, in the absence of
  evidence to the contrary, this Court will presume that the jury has heeded
  the instruction and disregarded the improper remark.  State v. Foy, 144 Vt.
  109, 117, 475 A.2d 219, 224 (1984).  
   
       ¶  16.  The first statement occurred during Slater's direct
  examination by the State.  After describing the events at Nason's trailer,
  the State asked Slater whether he had seen defendant again that night, and
  Slater confirmed that he had.  He testified that defendant came down to the
  Crossroads parking lot and said that "he was sorry and the gun wasn't
  loaded."  Defendant immediately asked for a bench conference, during which
  he disclaimed any notice of the statement.  The State indicated that it had
  learned of the statement only that morning before trial.  Given that time
  frame, the court concluded that the State's non-disclosure did not rise to
  the level of misconduct, and refused to declare a mistrial.  Instead, it
  immediately directed the jury to disregard the statement and excised it
  from the record.  The court later denied defendant's motion for a new trial
  on this issue, finding no indication that the State acted out of
  maliciousness or bad motive, and abiding by the sufficiency of its curative
  instruction.

       ¶  17.  The second statement occurred during Slater's heated
  cross-examination by the defense.  An exasperated Slater testified that he
  "thought it was over when they sent me a letter saying there was a plea
  agreement or," after which defendant immediately moved for a mistrial.  The
  court denied this motion as well, reasoning that it was clear that no plea
  existed.  The court again directed the jury to disregard the statement as
  being nonresponsive to the question.  In later denying defendant's motion
  for a new trial, the court described Slater's statement as a non-specific,
  passing reference.  It noted that the jury acquitted defendant of one
  charge, indicating it did not find guilt based upon the mention of any
  prior plea arrangement.
   
       ¶  18.  Reviewing Slater's first statement concerning defendant's
  undisclosed apology, we conclude that the trial court acted within its
  discretion when it denied defendant's motion.  Defendant argues that he was
  substantially prejudiced to the extent that, from the juror's perspective,
  his alleged general statement of regret was tantamount to an admission of
  guilt, and contends that the trial court's instruction to the jury was
  insufficient to cure any prejudice arising from the remark.  We disagree. 
  Defendant has not demonstrated any incurable prejudice on this issue, and
  there is no evidence to suggest that the jury did not heed the court's
  curative instruction.  Further, the second phrase of Slater's
  statement-defendant's alleged statement that the gun was not loaded-could
  not have caused any prejudice because defendant did not dispute that he
  brandished a gun during the incident.

       ¶  19.  We reach the same conclusion with respect to Slater's second
  statement.  The inadvertent reference to a prior plea agreement raises a
  novel issue in our jurisprudence: specifically, whether such a reference
  should be deemed so prejudicial as to merit a per se rule requiring a
  mistrial, as defendant suggests, or whether the reference should be
  reviewed under the abuse of discretion standard, as is the case with other
  inadmissible evidence.  See State v. Jones, 160 Vt. 440, 450-51, 631 A.2d 840, 847 (1993) (finding no abuse of discretion where court gave a curative
  instruction, and thus obviated any prejudice to defendant, in response to
  improper questions posed during State's cross-examination of defendant
  regarding uncharged sexual misconduct); State v. Abbott, 151 Vt. 618,
  619-20, 563 A.2d 640, 641-42 (1989) (refusing to find abuse of discretion
  where trial court issued curative instruction to disregard witness's
  statement concerning a prior BAC test, the results of which had been
  suppressed prior to trial).  While evidence of a guilty plea is
  inadmissible under Vermont Rule of Evidence 410, a per se rule requiring a
  mistrial at the very mention of the words would be unreasonable. 
  Accordingly, we review the court's response to Slater's second statement
  under the abuse of discretion standard. 

       ¶  20.  Here, as with the other challenged testimony, the trial court
  declined to declare a mistrial, but promptly instructed the jury to
  disregard Slater's statement.  Its decision was a proper exercise of its
  discretion.  In State v. Potter, we held that the trial court did not abuse
  its discretion in denying the defendant's motion for a mistrial after a
  witness indirectly referred to the fact that the defendant may have been
  incarcerated at some point immediately prior to the incident in question. 
  148 Vt. at 57-58, 529 A.2d  at 166.  We concluded that the district court's
  prompt curative instruction eliminated the need for a mistrial.  Id. at 58,
  529 A.2d  at 166.  
   
       ¶  21.  Here, the trial court also responded with an immediate
  curative instruction directing the jury to disregard Slater's statement
  about a plea agreement as nonresponsive.  Additionally, the statement
  itself was unsolicited and vague-Slater did not refer to specific terms of
  any particular plea arrangement, or even that defendant had pled guilty. 
  Furthermore, Slater was obviously mistaken in his belief that the matter
  was settled by a plea agreement, given that he was testifying in
  defendant's criminal trial at the time.  Finally, the jury acquitted
  defendant of one of the charges, indicating that it performed its duty,
  uninfluenced by Slater's passing reference.  Again, defendant has failed to
  demonstrate prejudice, and the record does not reflect that the trial court
  abused its discretion or that the jury disregarded the court's limiting
  instructions.  

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  By expanding the scope of the crime to include unloaded weapons, the
  plain language of § 1025 now proscribes conduct that could place the victim
  in actual danger (if the gun is loaded), or merely apparent danger (if the
  gun is unloaded).  The statute as amended is thus in some tension with
  McLaren's rationale that the statute is "intended to proscribe conduct
  which would place the victim in actual danger of death or serious bodily
  injury, not mere apparent danger."  135 Vt. at 293, 376 A.2d  at 36.  In
  other words, the statute in its current form criminalizes some conduct that
  gives rise to apparent danger (pointing an unloaded but operable firearm)
  and not other such conduct (pointing an inoperable firearm).