State v. King

State v. King (2003-468); 179 Vt. 400; 897 A.2d 543

2006 VT 18

[Filed 24-Feb-2006]

[Motion for Reargument Denied 04-Apr-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.


                                 2006 VT 18

                                No. 2003-468


  State of Vermont	                         Supreme Court

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

  Mark King	                                 October Term, 2005


  Brian L. Burgess, J.

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

  Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender
    General, Montpelier, for Defendant-Appellant.


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

       ¶  1.  JOHNSON, J.   In this appeal, defendant asserts that the
  trial court erred in sentencing him to twenty-seven to thirty years in
  prison after he pled guilty to voluntary manslaughter and first-degree
  aggravated domestic assault.  He contends that the court's decision is not
  supported by the evidence.  We affirm.
   
       ¶  2.  Defendant was charged with second-degree murder in April 1998
  for causing the death of his girlfriend, Caroline Critchfield, by
  throttling her and striking her in the head.  The victim, who was eight
  inches shorter than defendant and fifty pounds lighter, suffered extensive
  physical injuries; she ultimately died from numerous blows to the head. 
  Defendant maintained that the victim had provoked him by pretending to kiss
  him and then biting down on his lip.  

       ¶  3.  In January 2003, the parties entered into a plea agreement. 
  The State amended the information from second-degree murder to two counts:
  voluntary manslaughter and first-degree aggravated assault.  Defendant
  agreed to plead guilty to these charges and the State agreed that at the
  sentencing hearing, it would be capped at arguing for an aggregate sentence
  of twenty-seven to thirty years to serve.  Defendant was free to argue for
  less.  The agreement provided:    

      The Defendant understands that the State will argue at sentencing
    that the Defendant's conduct constituted 2d Degree Murder in that
    he acted with wanton disregard for the likelihood that his conduct
    would naturally cause the death of Caroline Critchfield. 
    Defendant understands further that if the Court accepts the
    State's argument, Defendant may receive a minimum sentence
    warranted for 2d degree murder (up to 27 years).

      The State understands that the Defendant intends to argue at
    sentencing that his conduct constituted manslaughter.  The State
    understands further that if the Court accepts the Defendant's
    argument, Defendant may receive a sentence warranted for
    manslaughter.    

  In a separate pleading, defendant recognized that the State would seek a
  twenty-seven to thirty-year aggregate sentence at sentencing, which the
  State contended was consistent with a sentence for second-degree murder. 
  Defendant also acknowledged that if the State proved by a preponderance of
  the evidence that a sentence consistent with second-degree murder was
  warranted, the court could impose such a sentence. 
   
       ¶  4.  The State indicated that it entered into the plea agreement
  because it was concerned that a jury might compromise on a verdict and
  credit defendant's claims of provocation.  If defendant was found guilty of
  manslaughter rather than murder, the maximum sentence that he could receive
  would be fifteen years.  Under the plea agreement, and because defendant
  pled guilty to two offenses, the State was entitled to argue for
  twenty-seven to thirty years to serve, which in effect gave it the right to
  argue for a second-degree murder sentence.  The State, in turn, gave up its
  right to argue for a much lengthier sentence if defendant was convicted of
  second-degree murder.  Defendant indicated a similar understanding of the
  plea agreement, and he also recognized that, to his benefit, he could no
  longer be sentenced to life in prison for causing the victim's death. 

       ¶  5.  Defendant did not testify at the sentencing hearing, and both
  parties relied on statements that defendant made to emergency room
  personnel and police shortly after the killing.  The trial court found that
  defendant had given varying versions of what had occurred, and his story
  changed as he was confronted with additional physical evidence of the
  victim's injuries.  In his first statement, which he made to an emergency
  room physician, defendant indicated that the victim had fallen asleep on
  the couch after they had returned home from a bar.  Defendant said that
  when he went to check on her, she leaned forward and bit him; he hit her
  once in response.  When defendant checked on her again later, he could not
  wake her up.  He brought the victim to the emergency room, indicating that
  she had overdosed on drugs. 
   
       ¶  6.  In his second statement, given to police shortly after he
  brought the victim to the emergency room, defendant described the victim
  storming around the apartment.  He stated that when he went into the living
  room, the victim approached him as if to give him a hug, and then she moved
  forward and bit him on the lip and would not let go.  Defendant stated that
  he hit her once in the face, and the punch occurred in a doorway between
  the living room and the bedroom.  When police asked defendant about
  bruising on the side of the victim's head, defendant stated that he was
  certain that he struck the victim only once.  He insisted that he did not
  grab the victim's throat but instead pushed her one time.  When police
  asked defendant why the victim's apparent injuries exceeded the scenario
  that he described, defendant stated that he had nothing whatsoever to add.  

       ¶  7.  Defendant was then advised that he was under arrest for
  second-degree murder, and he declared that he "sincerely" and "honestly"
  hadn't done anything and he hadn't beaten the victim.  When he was informed
  that the victim had also been choked, defendant stated he hadn't choked
  her, and that "honestly," all he had done was push her away.  Defendant
  then said that he might have pushed the victim away by pushing on her
  shoulders but not her neck; he later stated that it was possible that he
  had pushed her on the neck.

       ¶  8.  Later that day, defendant gave a third statement to police,
  which he initiated.  He stated that the victim rose up and bit him on the
  lip and that he "pushed, I hit, no, I didn't choke her.  No I didn't."  He
  added that his arm was around her neck as he pushed her away, and the
  victim was clawing at him.  He stated that he punched the victim in the
  nose, and he then fell backwards into the bedroom.  The victim got up first
  and came toward him, clawing at him.  Defendant thought that he then
  grabbed her around the neck.  He spun her around and he came down on top of
  her.  He stated that her head hit the floor, probably on her side, and he
  indicated that he was defending himself.  Defendant told police that he
  assumed that everything was fine and the victim had then gone to the couch. 
  When he found her later that night, he thought that she had overdosed and
  choked on her own vomit.  
   
       ¶  9.  The trial court found defendant's version of events
  incredible and grossly inconsistent with the victim's injuries.  The court
  explained that, in addition to the strangulation trauma to Ms.
  Critchfield's neck and throat, she suffered some thirty traumas to her
  arms, back, forehead, back of her head, eyes, nose, mouth, and jaw.  These
  included: nine impact injuries on her arms; three impacts on her head and
  forehead from her head being pushed into a rug; three major impacts to the
  back of her head; two black eyes; a split eyelid, which was not caused by
  her face hitting the rug; a cut nose-bridge; two major impacts to her
  mouth; and at least two major impacts to her jaw.  The court found that
  these injuries did not result from a single blow to the nose, a push, a
  head-lock, and a fall on her head.  Even assuming secondary impacts from
  being pushed down once and falling down once, defendant's story fell far
  short of explaining the totality of the victim's injuries.  The court also
  found defendant's version of where the incident occurred inconsistent with
  the State's evidence that the victim's blood, torn clothing, and necklace
  were found in various rooms throughout the apartment. 
   
       ¶  10.  The court found that defendant had obviously and repeatedly
  lied in his statements to emergency room personnel and police, and it found
  defendant's assertion that he had been provoked by the victim no less
  self-serving and exculpatory than any of his other demonstrated falsehoods
  about what happened that night.  The court thus concluded that a
  preponderance of the evidence showed that defendant's claim of being bitten
  first was a lie and the logical inference was that defendant had not been
  provoked to beat the victim as the result of a first bite.  Consequently,
  for purposes of the plea agreement, defendant's intentional killing of Ms.
  Critchfield was not mitigated by actual provocation and it constituted
  second-degree murder.  The court considered the sentencing factors set
  forth in the second-degree murder statute and concluded that the murder was
  particularly severe, brutal, and cruel.  It further concluded that, under
  the sentencing structure of 13 V.S.A. § 2303, this major aggravating
  factor, with no substantial mitigation, would support an increase in the
  twenty-year minimum prescribed for second-degree murder.  It thus found
  that the State's request for a twenty-seven to thirty-year aggregate
  sentence was justified.  Accordingly, it sentenced defendant to fourteen to
  fifteen years for voluntary manslaughter, and thirteen to fifteen years for
  first-degree aggravated domestic assault, to be served consecutively. 
  Defendant appealed. 
   
       ¶  11.  On appeal, defendant argues that the trial court erred in
  finding that he committed second-degree murder rather than manslaughter. 
  We note, however, that defendant was not sentenced for second-degree murder
  under 13 V.S.A. § 2303(b).  Instead, he received a sentence that was
  consistent with the statutory penalties for the two crimes that he admitted
  committing-first-degree aggravated domestic assault and voluntary
  manslaughter.  The first-degree aggravated domestic assault charge was
  based on defendant's act of strangling the victim-the victim suffered
  external and deep internal injuries to her neck and damage to her hyoid
  bone when strangled by defendant.  The evidence also demonstrated that the
  victim had been severely beaten.  Defendant did not bring the victim to the
  hospital right away, and it may have taken at least one hour or possibly
  two before the victim died from the blows to her head.  Indeed, when
  defendant finally did take the victim to the hospital, he stopped to buy
  cigarettes on the way.  The evidence adduced at the sentencing hearing
  plainly supported the imposition of the maximum statutory penalty for
  voluntary manslaughter and first-degree aggravated domestic assault. 
  Because defendant received a sentence that was within the statutory limits
  and within the boundaries of the plea agreement as to both the charges and
  the range of potential sentences, it is difficult to see how defendant
  suffered any harm.  See State v. Cyr, 141 Vt. 355, 358, 449 A.2d 926, 927
  (1982) ("In sentencing we defer to the lower court and will not review
  sentences within the statutory limits absent exceptional circumstances."). 

       ¶  12.  Nonetheless, in light of the parties' unusual plea agreement,
  we address defendant's argument that the trial court erred in imposing an
  aggregate sentence that was consistent with a penalty for second-degree
  murder.  As an initial matter, we reject defendant's request, made during
  the pendency of his appeal, that his sentence should be vacated in light of
  our decision in State v. Provost, 2005 VT 134, 16 Vt. L. Wk 381.  In
  Provost, we concluded that 13 V.S.A. § 2303, which sets forth the penalties
  for first-degree and second-degree murder, was unconstitutional because it
  allowed the trial court, rather than a jury, to find facts that increased
  the penalty for first-degree murder beyond the statutory maximum.  Id. ¶
  15; see also Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other 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."). 
   
       ¶  13.  Our holding in Provost is not applicable here.  Although the
  trial court considered aggravating and mitigating factors in determining
  defendant's sentence, defendant was neither convicted nor sentenced for
  second-degree murder.  Instead, he was sentenced for the two crimes to
  which he pled guilty-voluntary manslaughter and first-degree aggravated
  domestic assault-and the sentences that he received did not exceed the
  statutory maximums for these crimes.  See 13 V.S.A. § 2304 (maximum penalty
  for manslaughter is fifteen years in prison and $3000 fine); id. § 1043(b)
  (maximum penalty for first-degree aggravated domestic assault is fifteen
  years in prison and $25,000 fine).  Moreover, defendant expressly agreed to
  have the trial court serve as finder of fact to determine the appropriate
  sentence.  He recognized that if the court accepted the State's argument
  that he acted with wanton disregard for the likelihood that his conduct
  would naturally cause Ms. Critchfield's death, he could receive a sentence
  of twenty-seven to thirty years.  Defendant thus waived his right to
  challenge the trial court's sentencing procedure on appeal.  See Blakely v.
  Washington, 542 U.S. 296, 310 (2004) (explaining that defendant may waive
  his Apprendi rights, and when a defendant pleads guilty to a crime, "the
  State is free to seek judicial sentence enhancements so long as the
  defendant either stipulates to the relevant facts or consents to judicial
  factfinding").  We therefore reject defendant's request to allow
  supplemental briefing on this issue, and we reject his assertion that his
  sentence should be vacated in light of our decision in Provost. 

       ¶  14.  We turn to the heart of defendant's appeal.  Defendant
  maintains that the State failed to sustain its burden of proof at
  sentencing because it failed to present any evidence that directly
  contradicted his version of how the fight began.  According to defendant,
  even if the trial court disbelieved his statements to authorities, there
  was no affirmative proof of the absence of provocation. 

       ¶  15.  We review the trial court's sentencing decision for abuse of
  discretion, State v. Gibney, 2003 VT 26, ¶ 53, 175 Vt. 180, 825 A.2d 32,
  and we find no abuse of discretion here.  The evidence supports the trial
  court's finding that defendant did not kill Ms. Critchfield under the
  influence of provocation, and thus a twenty-seven to thirty-year aggregate
  sentence was appropriate under the terms of the plea agreement. 
   
       ¶  16.  Second-degree murder is the unlawful killing of another
  person with "an intention to kill, an intention to do great bodily harm, or
  a wanton disregard of the likelihood that one's behavior may naturally
  cause death or great bodily harm."  State v. Hatcher, 167 Vt. 338, 344, 706 A.2d 429, 432 (1997) (quotation omitted).  Voluntary manslaughter has the
  same intent element as murder but it is distinguished by the presence of
  "extenuating circumstances that may negate willfulness, such as sudden
  passion or provocation that would cause a reasonable person to lose
  control."  State v. Blish, 172 Vt. 265, 270, 776 A.2d 380, 385 (2001)
  (quotation omitted).  Heat-of-passion manslaughter, at issue here,
  requires:  "adequate provocation; inadequate time to regain self-control
  ('cool off'); actual provocation; and actual failure to cool off."  State
  v. Shabazz, 169 Vt. 448, 451, 739 A.2d 666, 668 (1999). 

       ¶  17.  In this case, under the terms of the parties' plea agreement,
  the State was required to prove by a preponderance of the evidence that
  defendant acted with wanton disregard of the likelihood that his conduct
  would naturally cause the victim's death and that he did not kill the
  victim under the influence of provocation. (FN1)  Cf. Hatcher, 167 Vt. at
  345-46, 706 A.2d  at 433 (explaining that, in a jury trial, "[w]here passion
  or provocation is implicated, the court must instruct the jury that to
  establish murder, the State must prove beyond a reasonable doubt that the
  accused did not kill under the influence of passion or provocation").  The
  State met its burden here.  It presented substantive evidence to discredit
  the only evidence of provocation in the case-defendant's statements to
  police and emergency room personnel.  The State was not obligated to
  provide additional affirmative evidence to sustain its burden of proof. 
                                                    
       ¶  18.  As noted above, defendant maintained that the victim had
  initiated the fight by biting his lip.  He provided varying accounts of how
  he reacted to the bite, ranging from a quick punch to the victim's face to
  a longer struggle where he put the victim in a head-lock and fell on top of
  her.  The trial court found that the State's evidence demonstrated that
  defendant's version of events was incredible.  The various scenarios he
  described were grossly inconsistent with the victim's extensive injuries,
  and also inconsistent with blood evidence and other physical evidence
  showing that the violence had occurred in several rooms throughout the
  apartment.  The State's evidence established that it may have taken several
  hours before the victim died, and she may have been ambulatory before she
  died, yet defendant did not bring the victim to the hospital right away. 
  Contrary to defendant's professed concern at discovering the victim's
  unresponsive body, his alleged fears that she had suffered a drug overdose,
  and his rushed effort to bring her to the emergency room, the State also
  produced evidence that defendant stopped to buy cigarettes on the way to
  the hospital.  As the trial court found, defendant's statements were
  self-serving and exculpatory, and his story evolved as he was confronted by
  additional physical evidence of the victim's injuries.  The State
  established that defendant repeatedly lied about what transpired, and in
  light of this evidence, it was reasonable for the trial court to infer that
  defendant also lied about how the fight began.  See State v. Durenleau, 163
  Vt. 8, 12, 652 A.2d 981, 983 (1994) ("In assessing circumstantial evidence,
  the fact-finder may draw rational inferences to determine whether disputed
  ultimate facts occurred."); State v. Paradis, 146 Vt. 345, 347-48, 503 A.2d 132, 133 (1985) ("[P]roof of facts includes reasonable inferences properly
  drawn therefrom.").  
   
       ¶  19.  We reject defendant's assertion that the State was required
  to produce additional  evidence to sustain its burden of proof at
  sentencing.  While defendant cites numerous cases to support the
  proposition that the disbelief of a part of a witness's statements does not
  provide affirmative proof of a separate fact, defendant mischaracterizes
  the issue before the trial court.  In this case, defendant's statements to
  police were the only evidence of provocation.  The State produced evidence
  to discredit defendant's version of events, and the trial court acted
  within its discretion in rejecting defendant's version of how the fight
  began and finding an absence of provocation.  Cf. State v. Barrett, 130 Vt.
  197, 201, 290 A.2d 14, 16 (1972) (where defendant provided only direct
  evidence of how killing occurred, and his testimony was necessarily
  undisputed, and defendant claimed self-defense, the credit to be given to
  defendant's testimony was still a matter for the jury's determination and
  the jury had the right to believe the testimony, reject it in part, or
  reject it altogether); see also State v. Camley, 140 Vt. 483, 489, 438 A.2d 1131, 1134 (1981) ("The jury has the right to believe all, part, or none of
  the testimony of any witness, and this rule applies to the defendant as
  well as any other witness."). 

       ¶  20.  We reject defendant's assertion that the trial court ignored
  additional evidence of provocation, such as the factual basis for his
  guilty pleas or the fact that his lip was cut.  It is difficult to discern,
  and defendant fails to explain, how the factual basis for his guilty pleas
  assists his arguments on appeal.  Defendant's admission through his guilty
  pleas that he caused the victim's death by repeatedly striking her in the
  head and that he strangled her does not undermine the court's conclusion
  regarding the absence of provocation.  The fact that defendant's lip was
  cut similarly does not provide proof that he was provoked.  As discussed
  above, there was no credible evidence to show that the victim bit defendant
  first.  We are equally unpersuaded by defendant's assertion that the court
  should have considered the consistency of his statements regarding the bite
  as evidence that he was provoked.  This argument goes to the court's
  assessment of defendant's credibility, a matter exclusively for the trial
  court.  State v. Couture, 169 Vt. 222, 227, 734 A.2d 524, 528 (1999).  The
  court found defendant not credible, and we will not disturb its assessment
  on appeal.  
   
       ¶  21.  Finally, we find no merit in defendant's assertion that, even
  if the trial court did not believe that the bite occurred at the beginning
  of the fight, there was no evidence to show that he had not been provoked
  at some point during the fight.  Defendant did not rely on this argument
  below, nor does it appear in any of his statements to authorities. 
  Instead, defendant took the position, which the trial court rejected, that
  the victim initiated the fight by biting his lip and she suffered the
  deadly beating as a result.  In any event, with the court's rejection of
  defendant's testimony, there was no evidence whatsoever to show
  provocation.  We find no error in the court's imposition of an aggregate
  sentence of twenty-seven to thirty years. 

       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice



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                                  Footnotes

FN1.  Defendant acknowledged both in writing and on the record at the
  change-of-plea hearing that the State would bear the burden of proving his
  guilt of second-degree murder by a preponderance of the evidence.