State v. Provost
Annotate this Case
State v. Provost (2004-160); 179 Vt. 337; 896 A.2d 55
2005 VT 134
[Filed 23-Dec-2005]
[Motion for Reargument Denied 06-Feb-2006]
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 134
No. 2004-160
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Lamoille Circuit
Douglas Provost September Term, 2005
Edward J. Cashman, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
General, Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Gibson, J. (Ret.), Specially Assigned
¶ 1. JOHNSON, J. Defendant Douglas Provost appeals his conviction
on four counts of first-degree murder and his sentence of four consecutive
terms of life without parole. Defendant argues that the trial court erred
by (1) failing to suppress defendant's statement to the police pursuant to
the Public Defender Act; (2) permitting the State's medical expert to
testify regarding matters outside the scope of the expert's report; and (3)
enhancing his sentence to life without parole based on constitutionally
impermissible factors. We affirm defendant's conviction, but we vacate his
sentence. Defendant's sentence will be four terms of imprisonment for life
with minimum terms of thirty-five years, to be served consecutively.
¶ 2. On Friday night, July 13, 2001, defendant shot and killed four
people inside a house in Belvidere, Vermont. Mitchell Bishop, his wife,
Melissa Bishop, and their two daughters, Angel and Jessica Bishop, lived in
the house, along with Jessica's fiancé, George Weatherwax, and Angel's
boyfriend, Christopher Bocash. Deric Davis, a local college student, and
his girlfriend, Lauren Ursitti, lived in an apartment on the same property.
At the time of the shooting, defendant, Mitchell Bishop, Melissa Bishop,
and Deric Davis were sitting in the living room. Defendant was attempting
to sell his handgun to Mitchell Bishop in exchange for cash and a bag of
marijuana. When Mitchell Bishop refused defendant's offer, and everyone
but defendant began to leave the room, defendant suddenly pointed his gun
at the chest of Deric Davis and shot him at close range. Defendant then
shot Mitchell Bishop. Melissa Bishop ran out the door. Jessica Bishop and
George Weatherwax, who had been upstairs, came downstairs in response to
the gunshots, and defendant shot them both. Defendant drove away in his
car as Melissa Bishop arrived at a neighbor's house and called the police.
Christopher Bocash heard the shootings and described them to the police
when they arrived. Both Lauren Ursitti and Angel Bishop slept through the
shootings.
¶ 3. Melissa Bishop described defendant's vehicle, which she had
seen driving away from the scene on Route 109. A state police officer
stopped defendant's vehicle on Route 109 and recorded his conversation with
defendant, who denied any involvement with the shootings. The officer
arrived at the Bishop home and showed the videotape to Melissa Bishop, who
confirmed that defendant was the shooter. Police officers then went to
defendant's home and observed it until the next morning, Saturday, July 14.
When defendant's mother came outside, the officers asked her to ask
defendant to step outside. When he did, the officers identified themselves
and asked him to assist with an investigation, which he agreed to do. The
officers then took defendant to the state police barracks in St. Albans.
¶ 4. After arriving at the barracks, defendant was advised of his
Miranda rights, which he waived in writing. Between 8:30 a.m. and noon,
the officers questioned defendant about the shootings. Defendant denied
involvement with the shootings, then stopped answering the officers'
questions. After continuing to ask defendant about the shootings without
response for an extensive period, one of the officers stated that defendant
appeared not to want to talk to them anymore, at which point defendant
nodded. The officers ceased questioning defendant and placed him under
arrest, whereupon defendant was taken to the correctional center in St.
Albans. Later in the afternoon on the same day, officers approached
defendant and asked if he had anything further to say, and defendant
replied that he did not. Because it was a Saturday, the police also
contacted Judge Burgess so that he could set bail by telephone pursuant to
Vermont Rule of Criminal Procedure 5(b). (FN1) Judge Burgess ordered
defendant held without bail pending arraignment on Monday, July 16.
¶ 5. On Sunday, July 15, the day following defendant's arrest, the
officers returned to the correctional center and asked to speak with
defendant again. Defendant agreed to speak with the officers and signed a
second waiver of his Miranda rights. (FN2) During this interview,
defendant admitted shooting all four victims. Defendant claimed that his
gun fired accidentally and hit Deric Davis, and that he shot Mitchell
Bishop in self-defense. Defendant said that he shot Jessica Bishop and
George Weatherwax because he thought Deric Davis and Mitchell Bishop were
still coming after him as he ran for the door. Prior to trial, defendant
moved to suppress this statement, asserting violations of his rights under
Miranda and the Public Defender Act. The trial court denied the motion,
and the statement was admitted at trial. Defendant's eight-day jury trial
included the statement and eyewitness testimony, as well as expert
testimony as to whether the gun could have fired accidentally and whether
the positioning of the victims' bodies was consistent with defendant's
statement. The jury convicted defendant on four counts of murder in the
first degree, and the trial court sentenced him to four consecutive terms
of life without parole.
I.
¶ 6. Defendant first contends that the trial court erred in failing
to suppress, pursuant to Vermont's Public Defender Act, the statement he
gave on Sunday, July 15, the day after his arrest. Defendant argues that
(1) the officers who detained and questioned him failed to contact a public
defender on his behalf; and (2) Judge Burgess failed to inform defendant of
his rights under the Act when he denied bail by telephone. We review de
novo the trial court's conclusions of law on motions to suppress. State v.
Rheaume, 2004 VT 35, ¶ 8, 176 Vt. 413, 853 A.2d 1259. We agree with the
trial court's conclusions that defendant waived his right to have an
attorney present during questioning and that this waiver was still in
effect at the time he gave his statement.
¶ 7. Under the Public Defender Act, 13 V.S.A. §§ 5201-5277, needy
individuals detained by law enforcement officers are entitled to have an
attorney present during questioning. 13 V.S.A. § 5231(1). In addition,
[i]f the person detained or charged does not have an attorney and
does not knowingly, voluntarily and intelligently waive his right
to have an attorney when detained or charged, [law enforcement
officers shall] notify the appropriate public defender that he is
not so represented. This shall be done upon commencement of
detention, formal charge, or post-conviction proceeding.
Id. § 5234(a)(2). Section 5234(a)(2) required the officers to contact a
public defender on defendant's behalf when he was detained unless he waived
his right to counsel. Defendant concedes that he waived that right by
signing a Miranda waiver prior to his interview with police on July 14, the
morning after the shootings. A waiver of the right to counsel under
Miranda also serves as a valid waiver of counsel under § 5234(a). State v.
Caron, 155 Vt. 492, 510, 586 A.2d 1127, 1137-38 (1990). Section 5234(a),
rather than establishing a set of substantive rights in addition to the
Miranda right to have counsel present at questioning, "recognizes Miranda's
concern for bad faith interrogation of individuals accused of a crime
without the presence of counsel, and reflects this state's policy of
securing for those individuals an immediate right to counsel." State v.
Picknell, 142 Vt. 215, 224, 454 A.2d 711, 715 (1982). Defendant does not
deny that he waived his right to counsel prior to the first interview.
Instead, he argues that he revoked his Miranda waiver when he "became
silent and verbally unresponsive" over the course of the first interview,
then nodded when one of the officers stated that he appeared not to want to
talk anymore. See Miranda, 384 U.S. at 473-74 ("If the individual
indicates in any manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must cease."). Defendant
asserts that through this alleged revocation of his waiver of the right to
remain silent, he also revoked his waiver of his Public Defender Act
rights, which, in turn, required the officers to contact a public defender
on his behalf.
¶ 8. Defendant's actions, however, even assuming they revoked his
waiver of the right to remain silent, did not revoke his waiver of the
right to counsel, and therefore, did not implicate § 5234(a)(2). See
Picknell, 142 Vt. at 224, 454 A.2d at 715 (identifying "securing . . . an
immediate right to counsel" as the purpose of § 5234(a), without mentioning
the right to remain silent). Because the Public Defender Act provides "no
greater right to counsel to a needy person than to any other individual,"
State v. Parizo, 163 Vt. 103, 107, 655 A.2d 716, 718 (1994), and a valid
waiver of counsel under Miranda also waives a detainee's rights under §
5234(a), Caron, 155 Vt. at 510, 586 A.2d at 1137-38, the question of
whether defendant revoked his waiver of counsel is the same under Miranda
and § 5234(a). For Miranda purposes, the United States Supreme Court has
drawn a distinction between invocations of the right to remain silent and
the right to counsel. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)
(holding that while police may reinitiate questioning after a detainee has
asserted only the right to remain silent, an invocation of the right to
counsel automatically ends all questioning until an attorney is present);
Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975) ("Miranda . . .
distinguished between the procedural safeguards triggered by a request to
remain silent and a request for an attorney and directed that 'the
interrogation must cease until an attorney is present' only '[i]f the
individual states that he wants an attorney.' " (quoting Miranda, 384 U.S.
at 474)). Edwards and Mosley indicate that refusing to answer further
questions does not automatically revoke a waiver of the right to counsel;
otherwise, police could not reinitiate questioning outside the presence of
counsel after such a refusal. Here, defendant waived his right to counsel
on the morning after the shootings, and his refusal to continue talking to
police later that morning was not a revocation of that waiver. A valid
waiver of counsel was thus in effect throughout defendant's detention under
both Miranda and the Public Defender Act, and there was no point at which
officers were required to contact a public defender on defendant's behalf
pursuant to § 5234(a)(2).
¶ 9. Defendant also alleges that his rights under the Public
Defender Act were violated when Judge Burgess denied bail by telephone
without informing defendant of his right to representation at public
expense. After a person has been detained or charged with a crime, the Act
requires that "[u]pon commencement of any later judicial proceeding
relating to the same matter, the presiding officer shall clearly inform the
person so detained or charged of the right of a needy person to be
represented by an attorney at public expense." 13 V.S.A. § 5234(b). We
hold that the setting of bail by telephone is not the type of "later
judicial proceeding" contemplated by the Act. Section 5234(b) protects a
defendant's right to counsel during a criminal prosecution, regardless of
financial need, which "attaches upon formal charge, preliminary hearing,
indictment, information or arraignment, because these mark the beginnings
of a criminal proceeding." Parizo, 163 Vt. at 106, 655 A.2d at 717
(quotations omitted). (FN3) In contrast to the formal proceedings listed in
Parizo, the setting of bail by telephone is a decidedly informal function,
designed by the Legislature to ensure that individuals who are arrested at
night or on weekends are detained no longer than necessary. Reporter's
Notes, V.R.Cr.P. 5(b). This is best demonstrated by the fact that Rule
5(b) allows the setting of bail not only by judges, but also by whichever
"clerk or designee is available to set conditions of release" at that
particular time. V.R.Cr.P. 5(b). The "later judicial proceeding" at which
defendant was entitled to renewed notice of his right to representation at
public expense was thus not the telephone conversation through which Judge
Burgess ordered him temporarily held without bail, but rather his formal
arraignment on Monday, July 16. The officers observed defendant's rights
under the Public Defender Act, and we therefore affirm the trial court's
refusal to suppress defendant's July 15 statement.
II.
¶ 10. Defendant next contends the court erred in permitting the
State's medical expert to testify concerning matters outside the scope of
his expert report. The medical examiner, Dr. Paul Morrow, performed
autopsies on each of the victims and submitted reports detailing his
findings, including the extent and location of each victim's injuries. At
trial, he testified as to the path of the bullet that hit Jessica Bishop.
Over defendant's objection, Dr. Morrow then estimated that Jessica Bishop
would have died within a matter of minutes, during which time "she would
have been unable to walk; . . . she would have been at least temporarily
paralyzed just by the shock of the bullet passing through the spinal canal
and involving the nerves to the lower legs." He also testified that she
would have "dropped right where she was" when she was shot. Dr. Morrow's
testimony indicated that the placement of Jessica Bishop's body was
inconsistent with defendant's claim that he was still inside and attempting
to run out the door when he shot her and George Weatherwax. Defendant
argues that because Dr. Morrow's autopsy report on Jessica Bishop described
her injuries without drawing conclusions about the likely effects of those
injuries, the court should not have overruled defendant's objections to Dr.
Morrow's testimony regarding Jessica Bishop's probable paralysis.
¶ 11. Vermont Rule of Criminal Procedure 16(a)(2)(C) requires the
State to disclose the reports of experts, "including results of physical or
mental examinations and of scientific tests, experiments, or comparisons."
This duty continues through the trial. V.R.Cr.P. 16.2(b). The discovery
rules are intended "to prevent the State from assuming an unfair advantage
over the defense." State v. Streich, 163 Vt. 331, 349, 658 A.2d 38, 51
(1995). In addition to showing a rule violation, "the defendant still must
demonstrate that the violation prejudiced his defense in some meaningful
manner to justify relief." State v. Wade, 2003 VT 99, ¶ 10, 176 Vt. 550,
839 A.2d 559 (mem.). Defendant has shown neither a violation of the
State's discovery obligations nor prejudice resulting from the violation he
alleges, so we affirm the trial court's ruling admitting the expert
testimony at issue.
¶ 12. While there is no question that defendant was entitled to
pretrial notice of the substance of Dr. Morrow's testimony, such notice was
not lacking here. In the trial court's order denying defendant's motion
for a new trial, the court noted that Dr. Morrow's testimony as to Jessica
Bishop's paralysis was an "obvious inference" from the autopsy report's
description of the path of the bullet, which included a lengthy description
of the damage to Jessica Bishop's spinal cord. Moreover, defense counsel
could have received more detailed notice of this testimony had he not
chosen to waive deposition of Dr. Morrow during discovery. At a pretrial
status conference, the State informed defense counsel that Dr. Morrow would
testify not only as to the cause of each victim's death, but also as to the
range at which the shots were fired, the path of the bullets, and the
"physical manifestations." Defense counsel commented that this testimony
"might go beyond the scope of what's in the autopsy report" and expressed
interest in discussing that possibility with Dr. Morrow, but evidently
chose not to pursue the matter further. If defendant wanted more explicit
information in advance of Dr. Morrow's testimony, he had ample opportunity
to gather it.
¶ 13. Even if we were to hold that defendant received insufficient
notice of Dr. Morrow's testimony, defendant would still not be entitled to
relief without showing that the lack of notice resulted in prejudice.
Wade, 2003 VT 99, ¶ 10. While defendant may have been prejudiced by Dr.
Morrow's testimony, which was at least somewhat inconsistent with
defendant's version of events, he was not prejudiced by the lack of notice
of this testimony. The State's opening argument revealed that Dr. Morrow
would testify as to Jessica Bishop's paralysis, yet defendant failed to
object or ask for additional time to respond. Had he received additional
time, defendant has presented neither a basis for casting doubt on Dr.
Morrow's conclusions, nor a strategy for resolving or limiting the effect
of the inconsistencies they raised. Thus, the trial court did not err in
allowing Dr. Morrow's testimony, and we affirm defendant's convictions.
III.
¶ 14. Defendant finally contends that the trial court erred in
sentencing him to four consecutive terms of life without parole based on
facts not found by the jury. The statute under which defendant was
convicted and sentenced, 13 V.S.A. § 2303, states in relevant part:
(a) The punishment for murder in the first degree shall be
imprisonment for life and for a minimum term of 35 years unless
the court finds that there are aggravating or mitigating factors
which justify a different minimum term. If the court finds that
the aggravating factors outweigh any mitigating factors, the
minimum term may be longer than 35 years, up to and including life
without parole. If the court finds that the mitigating factors
outweigh any aggravating factors the minimum term may be set at
less than 35 years but not less than 15 years.
The statute lists eight aggravating factors and seven mitigating factors
for use in increasing or decreasing the minimum term of a life sentence.
13 V.S.A. § 2303(d)-(e). In its sentencing memorandum, the trial court
considered each of the statutory aggravating and mitigating factors and
found that five of the aggravating factors and none of the mitigating
factors applied to defendant's convictions. The five aggravating factors
were defendant's prior conviction of lewd and lascivious conduct, the
helplessness of the victims, the particular severity, brutality, and
cruelty of the murders, the fact that there were multiple victims, and the
random, predatory, and arbitrary nature of the murders. Defendant claims
that the trial court's use of these factors violated his Sixth and
Fourteenth Amendment rights to a jury trial under the federal Constitution.
(FN4)
¶ 15. We agree that the sentencing process the trial court used was
unconstitutional. In Apprendi v. New Jersey, the United States Supreme
Court held that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). Apprendi held that it was unconstitutional for a
judge to sentence the defendant, who was convicted of firearms possession,
which carried a ten-year maximum sentence, to twelve years in prison upon
finding that the crime was motivated by bias pursuant to a "hate crime"
law. Id. at 474-76. The Apprendi majority emphasized that nothing in its
review of the history of the jury trial right "suggests that it is
impermissible for judges to exercise discretion-taking into consideration
various factors relating both to offense and offender-in imposing a
judgment within the range prescribed by statute." Id. at 481. In Blakely
v. Washington, however, the Court clarified that "the 'statutory maximum'
for Apprendi purposes is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the
defendant." 542 U.S. 296, 303 (2004). "In other words, the relevant
'statutory maximum' is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without any
additional findings." Id. at 303-04. According to this reasoning,
Vermont's homicide sentencing scheme is unconstitutional. The maximum
sentence the court may impose under § 2303(a) without finding any facts in
addition to the jury's verdict is life imprisonment with a minimum term of
thirty-five years. Increasing that sentence to life without parole on the
basis of any facts, other than a prior conviction, that the jury has not
found beyond a reasonable doubt, violates the Sixth Amendment.
¶ 16. The State argues that it was permissible to sentence
defendant to life without parole under Apprendi and Blakely because the
"statutory maximum" for first-degree murder is life imprisonment,
regardless of the minimum term. This argument is inconsistent with the
Supreme Court's interpretation of the Sixth Amendment. The Blakely
majority explained that the requirement that the jury find any fact that
"increases the penalty for a crime beyond the prescribed statutory maximum"
arises from
two longstanding tenets of common law criminal jurisprudence:
that the 'truth of every accusation' against a defendant 'should
afterwards be confirmed by the unanimous suffrage of twelve of his
equals and neighbours,' 4 W. Blackstone, Commentaries on the Laws
of England 343 (1769), and that 'an accusation which lacks any
particular fact which the law makes essential to the punishment is
. . . no accusation within the requirements of the common law, and
it is no accusation in reason,' 1 J. Bishop, Criminal Procedure §
87, p. 55 (2d ed. 1872).
542 U.S. at 301-02. To escape the conclusion that Vermont's murder statute
conflicts with these principles, the State argues that the aggravating
factors listed in § 2303(d) are not "essential to the punishment" a
convicted defendant receives. In other words, the State argues that
defendant's sentence of life without parole was not actually a different
punishment from the presumptive sentence of thirty-five years to life.
¶ 17. We find this argument unpersuasive. The structure of
Vermont's homicide statute demonstrates the Legislature's intent to attach
significance to the difference between minimum terms accompanying sentences
of life imprisonment. Under the State's reasoning, there would be no
significant difference between a sentence for first-degree murder, which
carries a sentence of life imprisonment with a presumptive minimum term of
thirty-five years, and a sentence for second-degree murder, which carries a
sentence of life imprisonment with a presumptive minimum term of twenty
years. 13 V.S.A. § 2303(a)-(b). We refuse to accept this conclusion. We
are persuaded instead by the reasoning of courts in other jurisdictions,
interpreting similar statutes, that life without parole and life with a
minimum term of imprisonment are different sentences for Apprendi purposes.
See State v. Surin, 2004 WL 2729598, *3 & n.4 (Fla. Dist. Ct. App.)
(stating that "Apprendi unquestionably is implicated" when the jury fails
to find a fact elevating the defendant's maximum sentence from life with
parole to life without parole); State v. Thomas, 83 P.3d 970, 984 (Wash.
2004) ("[I]t is clear that the legislature intended a life sentence with
the possibility of parole and a sentence of life without parole to be
wholly different."); cf. State v. Fell, 115 P.3d 594, 599-600 (Ariz. 2005)
(holding that trial judge can permissibly choose between life with parole
and life without parole under Apprendi, but only because legislature did
not require courts to find specific additional facts before imposing life
without parole). We hold that 13 V.S.A. § 2303(a) violates the rule in
Apprendi and Blakely because it requires the sentencing court to weigh
specific aggravating and mitigating factors not found by a jury beyond a
reasonable doubt before imposing a sentence of life without parole.
¶ 18. The State next argues that we should uphold defendant's
sentence despite the court's reliance on impermissible sentencing factors
because the error was harmless. We may find a constitutional or
nonconstitutional error harmless only if we can state a belief that the
error was harmless beyond a reasonable doubt. State v. Carter, 164 Vt.
545, 553-55, 674 A.2d 1258, 1264-65 (1996). The State argues that even if
some of the factors relied on by the trial court were impermissible under
Apprendi and Blakely, the trial court's sentencing determination relied on
at least two permissible factors: the fact of defendant's prior conviction
and the fact of multiple victims. Apprendi required only facts "other than
the fact of a prior conviction" to be submitted to a jury, 530 U.S. at 490,
and the fact that there were multiple victims follows from the jury's
conviction of defendant on all four counts of first-degree murder here.
¶ 19. We agree that the federal Constitution permitted the trial
court's use of these facts without additional jury findings, but that does
not render the court's error harmless. In fact, the sentencing scheme in §
2303(a) prevents a trial court's consideration of facts not found by the
jury from ever being harmless. The statute permits the court to increase
the defendant's minimum term above the presumptive thirty-five years only
"[i]f the court finds that the aggravating factors outweigh any mitigating
factors." 13 V.S.A. § 2303(a) (emphasis added). While the trial court
might have enhanced defendant's sentence based only on defendant's prior
convictions and the presence of multiple victims, without finding
additional aggravating factors, it could not have done so without finding
the absence of the statutory mitigating factors, such as "duress, coercion,
threat or compulsion insufficient to constitute a defense but which
significantly affected his or her conduct." Id. § 2303(e)(5). The absence
of these factors was as "essential to the punishment" defendant received as
the presence of the aggravating factors. Thus, we cannot say that the
trial court's use of impermissible sentencing factors had no effect on
defendant's sentence. Nor can we speculate as to how a jury might have
found regarding the presence and weight of the aggravating and mitigating
factors in § 2303, as § 2303 does not permit juries to make such
determinations. There was no balancing of aggravating and mitigating
factors that could have satisfied the demands of both the statute and the
Sixth Amendment. We thus have no choice but to vacate defendant's sentence
on each count.
¶ 20. The question remains whether to remand the case to the trial
court for resentencing. Under these circumstances, remand would serve no
purpose. As demonstrated by the harmless error analysis above, Apprendi
and Blakely do not permit the trial court to engage in the weighing process
contemplated in the statute. Any sentence the trial court might impose
above the presumptive term of thirty-five years to life would necessarily
rely on impermissible findings regarding the presence of aggravating
factors and the absence of mitigating factors. Ignoring the factors that
Apprendi and Blakely require to be found by a jury, and considering only
the factors that can be inferred from defendant's admissions or the jury's
verdict, might solve the constitutional problem, but it would fundamentally
alter the balance of factors prescribed by the Legislature. It appears
that the only sentence consistent with both the federal Constitution and
the statute is the presumptive term of life imprisonment with a minimum
term of thirty-five years. In defendant's case, because of the four
consecutive sentences imposed by the trial court, this will result in a
term of life with a minimum term of imprisonment of one hundred forty
years.
¶ 21. Defendant's consecutive minimum terms obviously render the
alteration of his sentence practically insignificant, but we anticipate
that the Legislature may wish to amend the statute in question, as well as
any other statutes prescribing similarly unconstitutional sentencing
schemes. We decline to follow the example of those courts that have
created their own sentencing procedures to replace legislative schemes held
unconstitutional in the wake of Apprendi and Blakely. See, e.g., Edwards
v. State, 822 N.E.2d 1106, 1110 (Ind. Ct. App. 2005) (remanding
attempted-murder defendant's unconstitutional sentence to trial court "with
instructions to either convene a jury for sentencing purposes or impose the
presumptive sentence"); State v. Natale, 878 A.2d 724, 740-41 (N.J. 2005)
(eliminating presumptive terms and allowing trial courts to use discretion
in imposing sentences within range previously permitted only after finding
aggravating factors). It is not at all clear whether the Legislature would
prefer an indeterminate sentencing scheme placing greater discretion in
trial judges, or a scheme requiring juries to conduct whatever additional
fact-finding is needed. The only intent expressed by the Legislature in §
2303(a) is that trial courts sentence defendants convicted of first-degree
murder to life in prison with a presumptive minimum term of thirty-five
years unless the aggravating factors listed outweigh the mitigating
factors. The system the Legislature has established for weighing the
listed factors violates the Sixth and Fourteenth Amendments. Until the
Legislature designs a constitutionally permissible means by which the
factors can be weighed, there can be no basis for adjusting defendant's
sentence above the presumptive term.
Defendant's convictions are affirmed. Defendant's sentences are
vacated; he is sentenced to four terms of imprisonment for life with
minimum terms of thirty-five years, to be served consecutively.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Rule 5(b) states:
The judge of each territorial unit of the District Court shall
establish procedures and standards by which persons arrested with
or without warrant other than during normal business hours may be
released pending appearance under this rule. The procedures shall
provide for setting conditions of release at any hour. Each court
shall maintain a schedule that provides which judge, clerk or
designee is available to set conditions of release on each date.
The appearance of a person released under this subdivision shall
be held as soon as possible after release.
FN2. Miranda v. Arizona, 384 U.S. 436, 444 (1966), requires law enforcement
officers to warn a person in custody "that he has a right to remain silent,
that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or
appointed." Here, defendant signed a form acknowledging that he was aware
of each of these rights and indicated his awareness next to individual
warnings reading:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a
court of law.
3. You have the right to talk to a lawyer before
questioning and to have a lawyer present with you during
questioning.
4. If you cannot afford to hire a lawyer, one will be
appointed to represent you at public expense, before any
questioning, if you wish. In Vermont, that is called a
Public Defender.
FN3. The right to counsel during criminal prosecutions, which is protected
by the Sixth Amendment to the federal Constitution and Chapter I, Article
10 of the Vermont Constitution, is distinct from the Miranda right to
counsel during questioning. See State v. Stanislaw, 153 Vt. 517, 531, 573 A.2d 286, 294 (1990) ("[T]he protections of the Sixth Amendment right to
counsel do not apply to 'interrogation sessions that . . . [take] place
before the initiation of "adversary judicial proceedings." ' " (quoting
Moran v. Burbine, 475 U.S. 412, 428 (1986))); see also Parizo, 163 Vt. at
105-06, 655 A.2d at 717 (holding that Vermont and federal constitutional
rights to counsel attach simultaneously).
FN4. The Sixth Amendment is made applicable to the states through the
Fourteenth Amendment. State v. Jenne, 156 Vt. 283, 289, 591 A.2d 85, 88
(1991).
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.
