State v. Green

State v. Green (2005-023); 180 Vt. 544; 904 A.2d 87

2006 VT 64

[Filed 30-Jun-2006]

                                 ENTRY ORDER

                                 2006 VT 64

                      SUPREME COURT DOCKET NO. 2005-023

                              MARCH TERM, 2006

  State of Vermont                   }           APPEALED FROM:
                                     }
                                     }
       v.                            }           District Court of Vermont
                                     }           Unit No. 2, Chittenden Circuit
  Elijah Green                       }
                                     }           DOCKET NO. 223-1-03 CnCr

                                                 Trial Judge:  Michael S. 
                                                               Kupersmith

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

       ¶  1.  Defendant was convicted after a jury trial of two counts of
  selling heroin and one count of selling cocaine.  He appeals the
  convictions on the ground that the court's jury instructions allowed him to
  be convicted without assuring a unanimous verdict, in violation of his
  constitutional rights.  We do not find plain error in the court's
  instructions and affirm.

       ¶  2.  Defendant was arrested and charged with two counts of selling
  heroin, in violation of 18 V.S.A. § 4233(b)(2), and one count of selling
  cocaine, in violation of 18 V.S.A. § 4231(b)(1).  The charges were based on
  three drug sales the State alleged defendant made to an informant for the
  Vermont State Police. The informant originally told the police that the
  sales were made by defendant in a car driven by a third party.  At trial,
  the informant testified, however, that defendant drove the car and that the
  drug sales were made by the third party.  

       ¶  3.    Under Vermont law, a principal and an accomplice are
  equally culpable.  State v. Millette, 173 Vt. 596, 597, 795 A.2d 1182, 1184
  (2002) (mem.) ("[W]here several persons combine under a common
  understanding and with a common purpose to do an illegal act, every one is
  criminally responsible for the acts of each and all who participate with
  him in the execution of the unlawful design."); State v. Orlandi, 106 Vt.
  165, 171, 170 A. 908, 910 (1934) (unrelated dicta overruled on other
  grounds by State v. Bacon, 163 Vt. 279, 658 A.2d 54 (1995)) ("All who
  knowingly and intentionally participate in the commission of a misdemeanor
  are principals and may be convicted thereof either separately or
  jointly.").  At the trial, the court's opening remarks included
  instructions on accomplice liability.  In its closing argument, the State
  argued that defendant sold the drugs to the informant, but that defendant
  was guilty as an accomplice even if he did not make the sale.  In his
  closing, defense counsel maintained that defendant was not the seller and
  that defendant's presence in the vehicle during the sales was insufficient
  to convict him as an accomplice.
   
       ¶  4.  The trial court's jury charge on accomplice liability
  specified that mere presence, without prior agreement with the specific
  purpose to encourage or incite, was not sufficient to prove accomplice
  liability.  The court specifically charged that an "accomplice is someone
  who joined together with another person or persons under a common plan with
  a common intent to commit an illegal act," and that "the State must have
  proven that Defendant acted with the same intent as of the principal actor"
  to be convicted as an accomplice.  The court then read the heroin charges
  to the jury and described the essential elements of the counts, including
  that "the Defendant or his accomplice sold heroin in an amount consisting
  of 200 milligrams . . . [and] that the Defendant or his accomplice sold the
  heroin voluntarily and consciously."  The instructions on the cocaine
  offenses used the same language.  Finally, towards the end of the charge,
  the court instructed the jury that:

    The verdict must represent the considered judgment of each juror. 
    In order to return a verdict, it is necessary that each juror
    agree to it.  In other words, your verdict must be unanimous.  It
    is your duty as jurors to consult with one another and to
    deliberate with a view to reaching an agreement if you can do so
    without violence to individual judgment.

  Neither party objected to the instructions. 

       ¶  5.  During its deliberations, the jury sent out the following
  written question:  "[D]o we have to specify if we find the Defendant
  guilty, do we need to say if he's an accomplice or a principal?"  In
  conference, the court stated, "I don't think we do."  The State concurred
  that the jury did not have to specify.  Defense counsel stated,
  "Interesting question," and briefly addressed the issue.  Ultimately, the
  court concluded, "I think the answer is no.  Okay."  Again, neither party
  objected.  The court then told the jury that, in response to its question,
  "The answer to that is no, you do not."  Again, neither party objected. 
  The jury returned guilty verdicts on all three counts.

       ¶  6.  Defendant argues on appeal that the trial court committed
  plain error by failing to instruct the jury that to properly convict it had
  to unanimously agree as to whether defendant was the principal or the
  accomplice in the charged offenses.  Defendant argues that in the absence
  of a such a charge, the jury was free to convict him without being
  unanimous on the nature of defendant's conduct, in violation of Chapter I,
  Article 10 of the Vermont Constitution.  See Vt. Const. ch. I, art. 10
  ("[W]ithout the unanimous consent of which jury, the person cannot be found
  guilty . . . .").  Alternatively, defendant posits that the jury was
  required to agree unanimously that a principal-accomplice relationship
  existed.

       ¶  7.  Because defendant failed to object to the jury instructions
  after they were given, we review his appeal for plain error only.  State v.
  Malshuk, 2004 VT 54, ¶ 9, 177 Vt. 475, 857 A.2d 282 (mem.).  We review jury
  instructions as a whole, assigning error "only when the entire charge
  undermines confidence in the verdict."  State v. Carpenter, 170 Vt. 371,
  374-75, 749 A.2d 1137, 1139 (2000).  "Any claimed error in jury
  instructions must not only affect substantial rights, but also have an
  unfair prejudicial impact on the jury's deliberations."  State v. Lambert,
  2003 VT 28, ¶ 14, 175 Vt. 275, 830 A.2d 9 (quotations omitted).  This Court
  will find plain error only in extraordinary cases.  Id.    
   
       ¶  8.  Viewing the instructions as a whole, we cannot find that the
  court's instructions here were plain error.  First, the court included a
  general instruction on unanimity, clearly specifying the requirement that
  each juror agree with the verdict.  See State v. Verge, 152 Vt. 93, 97-98,
  564 A.2d 1353, 1355-56 (1989) (finding no plain error where court gave
  general instruction on requirement of juror unanimity, and defendant did
  not request special verdict); United States v. Peterson, 768 F.2d 64, 67
  (2d Cir. 1985) (observing that general instruction on requirement of juror
  unanimity suffices to instruct jury that it must be unanimous on
  "specifications" it finds to form basis of guilty verdict, and concluding
  conviction based on verdict will stand if sufficient evidence exists with
  respect to each specification); accord United States v. Mangieri, 694 F.2d 1270, 1280 (D.C. Cir. 1982); see also United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir. 1987) ("The mere fact . . . that an instruction could
  conceivably permit a jury to reach a non-unanimous verdict is not
  sufficient to require reversal when the jury has been instructed that it
  must reach a unanimous verdict.").  Here the instructions were clear as to
  the elements the jurors needed to unanimously find to reach a guilty
  verdict, and the evidence was sufficient for the jury to have so found with
  respect to all essential elements of the charges.  Thus, the general
  instruction on unanimity was sufficient to safeguard defendant's
  constitutional rights.       

       ¶  9.  Moreover, the court specifically charged the elements of
  accomplice liability, including that mere presence at the scene was
  insufficient to prove participation in a common plan-the issue on which
  defendant's theory rested.  As we noted, supra, ¶ 3, a principal and an
  accomplice are equally culpable.  Here, in rendering the guilty verdict,
  the jurors necessarily concluded unanimously that defendant had the
  requisite mental state to commit the offenses and participated in the
  crimes.  The evidence at trial was sufficient to find defendant guilty at
  least as an accomplice, and defendant makes no claim to the contrary. Thus,
  every juror found that defendant was at least an accomplice and therefore
  guilty of the charged crime.  In this way, the unanimity requirement was
  met.  See Eagle Elk, 820 F.2d  at 961 (holding that because aider or abettor
  in offense is punishable as principal, "[e]ven if the jury was divided on
  whether [the defendant] committed the principal crime or aided or abetted
  in its commission . . . the jurors were in substantial agreement as to the
  nature of [the defendant's] guilty act" and defendant's constitutional
  rights were not violated); Probst v. State, 547 A.2d 114, 123 (Del. 1988)
  ("In a criminal charge involving one incident and two people, the jury is
  regarded as being unanimous if, without specifically identifying who was
  the principal and who was the accomplice, they all agree that one of the
  two actors performed all of the elements of the offense charged as a
  principal and that both actors knowingly participated in the alleged
  criminal act.").  
   
       ¶  10.  This case is distinguishable from the decisions primarily
  relied upon by defendant, State v. Couture, 146 Vt. 268, 502 A.2d 846
  (1985) and State v. Goyette, 166 Vt. 299, 691 A.2d 1064 (1997).   In
  Couture, where the defendant was charged with a single kidnapping count for
  forcibly confining five people, the court instructed the jury that it could
  return a guilty verdict if it found the defendant had kidnapped any of the
  five alleged victims.  This Court reversed, holding that the court's
  instructions allowed the jury to convict defendant under a variety of
  factual scenarios and the possibility existed that the jury was not
  unanimous as to an essential element of the case.  Couture, 146 Vt. at 272,
  502 A.2d  at 849.  In Goyette, 166 Vt. at 303-04, 691 A.2d  at 1067, this
  Court reversed defendant's conviction for violating an abuse prevention
  order, holding that the jury instructions on harassment did not ensure
  unanimity among the jurors on whether some or all of the six alleged acts
  occurred.  In the present case, contrary to both Couture and Goyette, the
  jury clearly reached a unanimous verdict as to defendant's illegal conduct
  on each element of the offense.  The court specifically instructed the
  jurors that they could not convict defendant on the basis of accomplice
  liability if they found he was merely present at the scene and that they
  had to find that defendant had the requisite mens rea as part of a common
  plan or scheme.  Thus, in order to convict, every juror had to find that
  defendant was at least an accomplice and that he had the requisite mental
  state for the crime.  See State v. Barrett, 132 Vt. 369, 375, 320 A.2d 621,
  625(1974) ("We must assume that the jurors followed the instructions given
  them by the trial court.").  Unlike Couture and Goyette, the instructions
  did not create the potential that jurors could diverge on any essential
  element of the charged offenses.

       ¶  11.  Finally, we reject defendant's alternative argument that the
  jury was required to unanimously agree that a principal-accomplice
  relationship existed.  The trial court properly instructed the jury on the
  essential elements of accomplice liability, including the necessity to find
  a "common plan with a common intent to commit an illegal act" and that
  defendant participated in that plan.  The trial court specifically rejected
  a finding of accomplice liability based on mere presence.  There was no
  plain error. 

       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 (Ret.), 
                                       Associate Justice, Specially Assigned