State v. Ovitt

State v. Ovitt (2004-071); 178 Vt. 605; 878 A.2d 314

2005 VT 74

[Filed 06-Jul-2005]

                                 ENTRY ORDER

                                 2005 VT 74

                      SUPREME COURT DOCKET NO. 2004-071

                              MARCH TERM, 2005

  State of Vermont	              }	      APPEALED FROM:
                                      }
                                      }
       v.	                      }	      District Court of Vermont,
                                      }	      Unit No. 3, Orleans Circuit
  Jamie Ovitt	                      }
                                      }       DOCKET NO. 42-1-02 OsCr

                                              Trial Judge: Walter M. Morris, Jr.

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


       ¶  1.  The State charged defendant Jamie Ovitt with first-degree
  murder for the killing and subsequent burial of his mother's ex-husband,
  Duane Perry.  A jury convicted defendant of the lesser-included charge of
  second-degree murder, which carries a statutory presumptive sentence of
  twenty years to life.  13 V.S.A. § 2303(b).  At trial, the court excluded
  evidence of a prior incident offered in support of defendant's claim that
  the homicide was justified because he acted in self-defense.  At
  sentencing, the trial court found that the aggravating and mitigating
  factors effectively negated each other, and therefore imposed the
  presumptive sentence of twenty years to life.  Defendant appeals,
  contending that the trial court erred in excluding testimony about one of
  the victim's prior violent acts, and that the sentencing procedure in 13
  V.S.A. § 2303 is unconstitutional.  We affirm.

       ¶  2.  On April 15, 2000, Duane Perry went to the trailer where
  defendant lived with his mother to purchase an ATV from her.  Sometime
  between 6:00 that night and 7:30 the following morning, defendant shot
  Perry in the back of the head and buried his body under construction debris
  and sand in an old cellar hole nearby.  On April 18, one of Perry's
  coworkers called his mother to tell her that Duane Perry, normally not one
  to miss work, had not come in that day.  Duane's mother then called the
  state police, who found Duane's pickup truck at a highway rest stop in
  Ryegate on April 19.  The police deduced, by interviewing other motorists,
  that the truck had been left at the rest area on the night of April 15. 
  When the police found the truck, the ignition had been "punched out" and
  was on the floor in the cab, and a bill of sale for the ATV was on the
  passenger seat.  On May 2, 2000, the state police found Duane Perry's body
  buried under layers of sand and demolition debris in the cellar hole. 
           
       ¶  3.  Over the next year, defendant developed a relationship with a
  woman, and in June or July of 2001 moved to Connecticut to live with her. 
  In October of that year, the woman asked defendant if he was involved in
  Duane's murder.  Defendant asked her to swear not to tell anyone what he
  told her.  When she swore secrecy, defendant admitted to shooting the gun
  that killed Duane after an argument between Duane and defendant's mother. 
  Defendant went on to describe hot-wiring the truck and leaving it at the
  rest area in Ryegate, and disposing of the murder weapon by grinding it
  into "little pieces and spread[ing it] throughout the 10 Mile Square Road." 
  Defendant's girlfriend kept her promise not to tell until December 2001,
  when she told the Vermont State Police what defendant had told her about
  the murder.  The State subsequently charged defendant with first-degree
  murder.  

       ¶  4.  At trial, in support of his self-defense claim, defendant
  introduced evidence about his relationship with Duane Perry, including
  evidence of Duane's prior acts of violence towards him and others. 
  Defendant testified that Duane physically and sexually abused him from 1991
  until about 1994, including an incident when Duane kicked defendant between
  the legs, and another when Duane smashed defendant's head and his brother's
  head together.  Defendant's uncle testified to an incident in which Duane
  had chased a dog through the uncle's house with a loaded gun, shooting at
  the dog at least six times and nearly killing it.   

       ¶  5.  Defendant planned to introduce into evidence his uncle's
  testimony concerning another incident in 1991 or 1993, when Duane allegedly
  entered the uncle's house and threatened him with a gun after a "logging
  incident."  The trial court excluded the testimony.  The court offered no
  explicit reasons for doing so, but decided to exclude the testimony after a
  colloquy in which the prosecution noted that the incident had happened
  seven to nine years before the murder.   

       ¶  6.  The trial court later instructed the jury that they could
  consider Duane's past "threats or violent acts" in deciding whether the
  murder was justifiable on self-defense grounds.  The jury instruction on
  self-defense was as follows:

    The right of self-defense doesn't arise from a fear of danger in
    general, [but] from actually or reasonably expected physical
    attack.  This fear of the defendant of an immediate attack must be
    a reasonable fear.  In considering whether it was reasonable for
    the defendant to expect an immediate physical attack, you may keep
    in mind whether the defendant, that is Mr. Ovitt, knew of other
    threats or violent acts by Duane Perry and whether Duane Perry had
    a general character for violence which the defendant, that is Mr.
    Ovitt, was aware of.  

  The jury convicted defendant of second-degree murder, which carries a
  presumptive sentence of twenty years to life.  13 V.S.A. § 2303(b).  After
  a sentencing hearing, the trial judge determined that the aggravating and
  mitigating factors present warranted imposition of the presumptive
  sentence, and sentenced defendant to serve twenty years to life.  Defendant
  appeals.
   
       ¶  7.  Defendant argues that the trial court abused its discretion
  in excluding his uncle's testimony about the incident in which Duane
  threatened the uncle with a gun.  Defendant contends that the evidence
  would have given the jury a reason to find that his fear of imminent attack
  was reasonable.  Defendant asserts that the evidence should have been
  admitted under V.R.E. 405(b) as an "essential element" of defendant's claim
  that the homicide was justified.  The State argues that V.R.E. 405(b) does
  not allow admission of evidence of the victim's prior bad acts, because the
  victim's character is not a statutory element of self-defense.  

       ¶  8.  The trial court has broad discretion to admit or exclude
  evidence.  In re A.B., 170 Vt. 535, 536, 740 A.2d 367, 369 (1999) (mem.). 
  We reverse trial court evidentiary rulings only when we find an abuse of
  that discretion resulting in prejudice.  Id. 

       ¶  9.  The Vermont Rules of Evidence permit evidence of prior acts
  only for limited purposes.  Evidence of prior acts is not admissible to
  show that a person acted in conformity therewith on a later occasion. 
  V.R.E. 404(a),(b).  Rule 404 permits defendants to offer evidence of their
  victim's character in certain situations.  V.R.E. 404(a)(2).  Even if
  character evidence is admissible under 404, the form of the evidence is
  limited by Rule 405.  Under 405(b), proof may be made by specific instances
  of a person's conduct when the character of a person is an "essential
  element" of a claim or defense.  V.R.E. 405(b).  Finally, although evidence
  may be admissible under Rule 405, the trial court retains discretion under
  Rule 403 to exclude the evidence if "its probative value is substantially
  outweighed by the danger of unfair prejudice, confusion of the issues, or
  misleading the jury, or by considerations of undue delay, waste of time, or
  needless presentation of cumulative evidence."  V.R.E. 403.  The trial
  judge does not need to articulate the precise weights assigned to the
  probative value or prejudicial effect of evidence, or specify why one
  outweighs the other.  State v. Derouchie, 153 Vt. 29, 35, 568 A.2d 416, 419
  (1989).

       ¶  10.  Defendant claimed self-defense under 13 V.S.A. § 2305(1). 
  Title 13 V.S.A. § 2305(1) defines justifiable homicide as killing which
  occurs "[i]n the just and necessary defense" of one's own life or the life
  of certain defined others.  A person who is found to be justified in
  killing another "shall be guiltless."  13 V.S.A. § 2305.  In order to
  benefit from § 2305's protection, a defendant must have reasonably believed
  that he or she was in imminent peril, and that it was necessary to repel
  that peril with deadly force.  State v. Wheelock, 158 Vt. 302, 307, 609 A.2d 972,  975 (1992). 

       ¶  11.  Without deciding whether the evidence of the victim's prior
  acts could be admissible under Rule 405, we conclude that the trial court
  did not abuse its discretion in excluding the evidence under Rule 403.  The
  proffered testimony concerned an incident that occurred seven to nine years
  prior.  The substantial interval between the prior act and the current case
  makes the evidence less probative, and may confuse the jury.  Moreover, the
  exclusion of this evidence did not prevent defendant from exercising his
  right to present a defense.  Defendant introduced evidence supporting his
  claim of self-defense, including the victim's prior acts of violence
  towards him, and the victim's incident with the dog.  There was no error. 

       ¶  12.  Defendant next contends that 13 V.S.A. § 2303 violates
  Chapter 1, Article 10 of the Vermont Constitution by authorizing a
  sentencing court to make judicial determinations of aggravating
  circumstances which "expose" defendants to sentences greater than the
  presumptive minimum.  
        
       ¶  13.  We have often stressed that we will not consider issues not
  raised in the proceeding below.  State v. Gibney, 2005 VT 3, ¶ 4, 16 Vt.
  L. Wk. 10, 869 A.2d 118; In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270
  (2001).  An issue is not preserved for appeal unless a party raises it with
  specificity and clarity below, thereby ensuring that the trial court will
  have an opportunity to fully develop the relevant facts and to reach
  considered legal conclusions.  White, 172 Vt. at 343, 779 A.2d  at 1270; see
  also State v. Ben-Mont Corp., 163 Vt. 53, 61, 652 A.2d 1004, 1009 (1994)
  (concluding that single mention of "fairness" in brief was insufficient to
  preserve due process challenge for appeal); State v. Emmi, 160 Vt. 377,
  380, 628 A.2d 939, 941 (1993) (concluding that mere assertion given at
  trial that, court "should examine the legitimacy" of electronic
  surveillance without a warrant, was insufficient to preserve constitutional
  challenge for appeal).  

       ¶  14.  Defendant's assertion-that the Vermont Constitution prohibits
  trial courts from imposing the statutorily mandated minimum sentence based
  on judicial balancing of sentencing factors-was not raised below with
  sufficient clarity to preserve it for appeal.  Defendant's sentencing
  memoranda at trial explicitly conceded that the trial judge may impose a
  sentence "no higher than the presumptive minimum," and that "the only
  permissible inquiry [is] whether there are mitigating circumstances which
  lower the presumptive sentence."  Defendant's preliminary sentencing
  memorandum challenges "enhancement of" and "increasing" the statutorily
  mandated sentence based on judicial balancing, but does not assert that the
  imposition of the statutory minimum would implicate due process concerns. 
  Nor did defendant's second sentencing memorandum clearly raise that issue. 
  We therefore do not consider it. 

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Ernest W. Gibson III, Associate Justice
                                       (Ret.), Specially Assigned