2012 VT 79


State v. Bruno (2010-119;
2011-166)
 
2012 VT 79
 
[Filed 05-Oct-2012]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 

2012 VT 79

 

Nos. 2010-119 & 2011-166

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Criminal Division


 


 


Jonathan Bruno


June Term, 2012


 


 


 


 


Thomas
  A. Zonay, J.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender
General, Anna Saxman, Deputy Defender General, and 
  Dawn Matthews, Appellate Defender, Montpelier, for
Defendant-Appellant.
 
 
PRESENT:   Reiber, C.J., Dooley, Burgess and
Robinson, JJ., and Kupersmith,
Supr. J., 
           
         Specially Assigned
 
 
¶ 1.            
ROBINSON, J.   Defendant was convicted of second-degree
murder following a jury trial.  He appeals that conviction on three
grounds: (1) the trial court improperly denied his motion for a new trial based
on a newly discovered witness corroborating defendant’s self-defense claim; (2)
the trial court erred by failing to dismiss two jurors for cause; and (3) the
jury instructions on diminished capacity failed to inform the jury it must
acquit defendant of second-degree murder if defendant could not form the
specific intent for that offense due to diminished capacity.  We affirm.
¶ 2.            
At trial, defendant testified that his feud with the victim originally
began with his sale of forty dollars’ worth of heroin to the victim.  The
victim did not pay for the drugs at that time, but said that he would pay
defendant back later.  After a few days without payment, defendant became
irritated and angry and began calling the victim at his home.  The
victim’s father testified that on October 28, 2007, defendant called for the
victim multiple times, screaming vulgarities and threatening the victim’s
family.  The victim’s father reported the phone calls to the Castleton
police, and an officer came to the victim’s home; when defendant called back,
the father handed the officer the phone, and the police officer spoke with
defendant.  Defendant did not call the victim’s family again after
that.  
¶ 3.            
Defendant testified that on November 1, 2007, he smoked crack at a
friend’s house and then went to Walmart in the
afternoon.  That same afternoon, the victim drove with his friend and boss
to TD BankNorth, near the Rutland Walmart,
in this friend’s pickup truck.  Defendant and the victim saw each other
when the victim was near the bank’s drive-through window, and they began
speaking.  Although defendant and other witnesses offered divergent
testimony about who said what, all agree that defendant and the victim began
having a heated conversation.  According to the friend, defendant said,
“Let’s go over here behind Walmart and we’ll settle
this right now, bitch. Your father’s not here to call the cops on me this
time.”  Defendant testified that the victim asked him to go behind
the Walmart.  
¶ 4.            
Defendant and the victim then went behind the Walmart,
with defendant in front and the victim following.  The friend testified
that he followed in his truck, stopping sixty to seventy yards from defendant
and the victim.  The friend testified that he watched defendant and the
victim argue until a tractor-trailer blocked his view.  The driver of that
tractor-trailer testified that the victim and defendant’s altercation took
place directly in front of his truck, about fifteen feet away.  The driver
saw the victim throw the first punch, and then saw what looked like defendant
punching the victim in the neck.  In fact, defendant had a knife in his
hand and slashed the victim’s neck, cutting through his larnyx,
carotid artery, jugular vein, and esophagus.  
¶ 5.            
The victim, bleeding profusely, ran from the site of the slashing,
around the passenger side of the tractor-trailer, and towards the friend’s
truck.  The friend testified that he saw the victim running towards his
truck, about fifteen feet in front of him.  The friend got out of his
truck, ran to the victim, and applied pressure to the wound, but the victim
died within minutes.  Defendant fled the scene, but police soon found and
arrested him.  
¶ 6.            
The State charged defendant with second-degree murder.  Defendant
did not deny slashing the victim but consistently maintained that the victim
came at him with a pipe and that he acted in self defense.  None of the
other witnesses at trial saw a pipe or other weapon in the victim’s hand during
the altercation.  The police never found a pipe at the scene or in the
friend’s truck.  The friend testified that he did not have any pipes in
his truck, only a metal stud eight feet or longer.  
¶ 7.            
Alternatively, defendant argued that his voluntary cocaine intoxication
should mitigate the offense from second-degree murder to voluntary manslaughter
on the ground of diminished capacity.  The jury convicted defendant of
second-degree murder, and the court sentenced him to thirty-five years to
life.  An automatic notice of appeal was entered. 
¶ 8.            
In April 2010, four months after defendant’s conviction and a month
after his sentencing, a new witness contacted defendant’s mother, then defense
counsel.  This new witness said she was in the Walmart
parking lot on November 1, 2007, witnessed part of the altercation between
defendant and the victim, and saw the victim holding an object she thought was
a pipe.  Defendant filed a motion for a new trial based on newly
discovered evidence.  Following a hearing, the trial court found that the
new witness was not credible, and denied defendant’s motion for a new
trial.  Defendant appealed.  
I.
¶ 9.            
First, we consider defendant’s argument that the trial court erred by
denying defendant’s motion for a new trial based on the testimony of the newly
discovered witness.  “Motions for new trial on the ground of newly
discovered evidence are not favored by the courts and are viewed with great
caution; courts are properly reluctant to grant a second trial once a defendant
has had his or her day in court and been fairly tried.”  State v.
Schreiner, 2007 VT 138, ¶ 26, 183 Vt. 42, 944 A.2d 250.
 To succeed on a motion for a new trial based on newly discovered
evidence, defendant must prove each of the following elements: (1) new evidence
would probably change the result on retrial; (2) the evidence was discovered
only subsequent to trial; (3) the evidence could not have been discovered
earlier through the exercise of due diligence; (4) the evidence is material;
and (5) the evidence is not merely cumulative or impeaching.  Id.
 In this case, the trial court determined that the new witness’s testimony
satisfied elements (2) through (5) of the above test, and the State does not
contest those findings here.  Accordingly, defendant’s appeal focuses
solely on the trial court’s conclusion that the new witness’s testimony would
probably not change the outcome upon retrial.  
¶ 10.         In
assessing whether newly discovered evidence would probably lead to a different
result upon retrial, the trial court must evaluate the quality of the evidence
presented.  See State v. Miller, 151 Vt. 337,
339, 560 A.2d 376, 377 (1989).  Defendant must show that the new
evidence would “likely lead to an acquittal of the defendant on retrial.”
  State v. Charbonneau, 2011 VT 57, ¶ 17, 190 Vt. 81, 25 A.3d
553; see Reporter’s Notes, V.R.Cr.P. 33 (“Both the
Vermont and federal cases hold that to permit grant of a new trial, the new
evidence . . . must appear likely to bring about an
acquittal on a retrial.”).  
¶ 11.         At
the new trial motion hearing on December 9, 2010, the new witness testified to
the following facts.  On November 1, 2007, she parked in the Walmart lot to walk her dog nearby.  As she returned
to her car with her dog, she saw two men coming towards her, later identified
as defendant and the victim.  The man who was following behind carried a
three or four-foot long silver object, which looked like a pipe and glinted in
the sun like metal.  The two came together near the lawn and garden
section by the side of the Walmart.  She saw the
man who had been behind raise the pipe-like object and swing down at the other
person, but she did not see it connect.  A Walmart
truck blocked her view as she drove out of the parking lot.  Seconds
later, as she was driving, she heard a sound “like metal hitting
concrete.”  Through her rearview mirror, she then saw a dark-colored
pickup truck pull up and a man throw the object in the back of that
truck.  She then drove away and did not see the rest of the incident. 
¶ 12.         The
new witness left the scene on November 1 because she was driving without a
valid driver’s license and did not want to deal with the police.  After
she figured out that the two men she had seen were defendant and the victim,
she did not report what she saw to the police because she figured there were
lots of people downtown and there had to be more than enough witnesses. 
She also did not want to get involved as a witness because she was afraid of
the families involved.  After the trial, she told her counselor what she
had seen, and her counselor encouraged her to tell somebody.  She then
contacted defendant’s mother who referred her to defense counsel.  She did
not ever speak to defendant about the matter.  
¶ 13.         At
the time of the incident, she was employed taking care of an elderly patient at
the patient’s home.  She took Suboxone to
suppress opioid cravings, but had not taken street
drugs since February 2006.  She has a history of anxiety, Posttraumatic
Stress Disorder, depression, Attention Deficit Disorder, Attention Deficit
Hyperactivity Disorder, addiction to prescription medication, and was taking
medication for anxiety at the time of the hearing.  She had once been hospitalized
for her mental health issues.  
¶ 14.         In
its ruling on the new trial motion, the trial court found that the new
witness’s testimony would be admissible at trial but did not find the testimony
credible.  The court cited her delay in reporting her purported
observations, her mental health and substance abuse issues, the inconsistencies
in her testimony, and the court’s opportunity at the hearing to observe the
witness’s demeanor, mannerisms, and tone of voice, and to examine the quality of
her testimony as a whole.  Responding to defendant’s assertion that the
new witness had no motive to testify falsely, the court acknowledged that it
could not with certainty ascribe a specific reason for her to testify falsely,
but suggested that she might have been attempting to assist defendant or that
her mental health and/or substance abuse issues might have resulted in her
interjecting herself into the case.  
¶ 15.         The
trial court further concluded that even if the new witness’s testimony was
credible, weighed against the State’s evidence, it still would probably not
bring about a different result.  Although the testimony does undercut a
significant aspect of the State’s case—namely, that the victim was unarmed and
therefore defendant did not act in self-defense—no other witness saw an object
in the victim’s hand during the altercation, no such item was found by the
police at the scene, nor did any other witness see anyone pick up an item and
throw it into the back of a truck.  In fact, the new witness’s testimony
was even inconsistent with defendant’s own account of how he was
attacked.  Accordingly, the trial court concluded that the remaining
testimony at trial weighed heavily against a finding that her testimony would
probably change the result on retrial.  
¶ 16.         We
review the trial court’s ruling on the new trial motion for abuse of
discretion, and will not overturn the trial court’s decision unless the court
abused or withheld its discretion.  Charbonneau,
2011 VT 57, ¶ 16; Miller, 151 Vt. at 339, 560 A.2d at 377. 
Moreover, we recognize that “[a] trial court’s assessment of the credibility of
both a witness who offers newly discovered testimony and the testimony itself
is simply part of the evaluation of the quality of the evidence” that the trial
court must undertake in a motion for a new trial based on newly discovered
evidence.  Id. ¶ 18.  See also State
v. Young, 2010 VT 97, ¶ 23, 189 Vt. 37, 12 A.3d 510 (“The trial court is
afforded great discretion in making factual findings because it is in the best
position to assess the credibility of witnesses and the weight to be given to
evidence.”).  
¶ 17.         Given
the record in this case, we cannot conclude that the trial court abused its
discretion in concluding that the new testimony was not credible, and that, in
any event, it would not likely change the outcome of the trial.  The trial
court specifically cited a host of factors, including the witness’s demeanor,
mannerisms, and tone of voice, to support its conclusion.  Although we do
not generally require the trial court to articulate with specificity the
reasons underlying its credibility determinations, State v. Hagen, 151
Vt. 64, 65, 557 A.2d 493, 494 (1989), we have recognized that a witness’s
“demeanor, mannerisms, and tone of voice” as well as “a judge’s discretion and
experience,” are all factors that are relevant to a trial court’s credibility
determination.  Id. 
¶ 18.         Moreover,
weaknesses and inconsistencies in the new witness’s testimony also support the
trial court’s credibility determination.  For instance, the trial court
could have concluded that the new witness gave inconsistent testimony
concerning where precisely the altercation occurred, whether defendant and the
victim were running or walking, whether she saw a man pick up an object or just
throw an object into the dark-colored pickup truck, and what she was doing when
watching the two men.  The new witness also stated, “I don’t remember
every detail that I saw that day . . . I try to forget about this.”  For
all of these reasons, we cannot say that the trial court abused its discretion
in concluding that the new witness’s testimony was not credible. [1] 
¶ 19.         The
trial court’s decision to deny defendant’s motion for a new trial is also
supportable by its alternate analysis—that even if the new testimony was
credible when considered on its own, it would probably not have changed the
outcome when viewed in the context of the evidence overall.   See Schreiner,
2007 VT 138, ¶ 29 (“[W]e look at the newly discovered evidence in relation to
the State’s case against defendant.”).  As the court noted, “no other
witness saw an object in the victim’s hand during the altercation, no such item
was found by the police at the scene, nor did any other witness see anyone pick
up an item and throw it into the back of the truck.”  The court’s
conclusion is amply supported by the record.  The disinterested truck
driver, who was fifteen feet away from the altercation, with an unobstructed
view, saw no weapon in the victim’s hand.  The victim’s friend, who saw
the victim following defendant to the back of the Walmart
parking lot, saw no weapon in the victim’s hand.  A disinterested
witness, who watched defendant and the victim from the time the victim began
following defendant toward the back of the Walmart
parking lot until after the slashing, saw no weapons in either of their
hands.  Another disinterested witness who saw defendant and the victim
arguing immediately before the slashing did not see a weapon in either person’s
hand.  Police officers searched all around the scene of the incident, and
also searched the friend’s truck and the victim’s father’s truck.  None
found a pipe or other object meeting the new witness’s description.  
¶ 20.         In
addition, the trial court could reasonably have concluded that in the context
of the other evidence in the case, the new witness’s testimony simply did not
make sense.  Construing the new witness’s testimony most favorably to the
defendant, she testified that she saw the victim swing a pipe, heard it hit the
ground seconds later, and then saw a man pull up in a dark-colored pickup
truck, pick up the pipe, and throw the pipe into the back of the truck. 
Presumably this man was the friend of the victim with whom the victim had come
to the bank.  However, the trial court could reasonably have concluded
that this series of events did not make sense when compared to all of the other
witness testimony about where the slashing occurred and where the victim
died—reinforcing both the court’s credibility determination and its conclusion
that the new testimony would not change the outcome of the trial. 
¶ 21.         Several
witnesses testified that defendant slashed the victim behind the Walmart, near the Amtrak station, in front of the idling
tractor-trailer.  The tractor-trailer driver testified that he then saw
the victim run from the spot of the slashing, around the side of his
truck.  Another witness also testified that the victim ran back towards
the bank drive-through, and died halfway between the slashing and the bank
drive-through.  Several witnesses testified that the victim died near his
friend’s truck, a considerable distance from where the slashing took
place.  The first police officer at the scene testified that he found
blood on cars at the slashing site, a trail of blood from the point of the
slashing to the friend’s truck, blood on the friend’s truck, and a large
pool of blood where the victim died.  The friend testified that sixty or
seventy yards separated his pickup truck from the site of the slashing. 
And another disinterested eyewitness saw the victim run to the friend’s
truck, then saw the friend get out of the truck and immediately help the
victim.  In short, numerous witnesses testified that a considerable
distance separated the spot where defendant slashed the victim and the spot
where the victim died in his friend’s arms.  
¶ 22.         Assuming
for the sake of argument that the victim did at some point carry a pipe, in
light of the above testimony, the friend could have picked up the pipe and
thrown it in the back of his truck only in one of two scenarios.  First,
the victim could have dropped the pipe before reaching the place where
defendant slashed him.  If so, the friend could plausibly have retrieved
the pipe and thrown it in his truck while the victim and defendant squared off
some distance away.  In this scenario, though, the victim would have been
unarmed at the spot where he and defendant came together, and defendant’s self-defense
claim would fail.  Alternatively, the victim could have dropped the pipe
during the final confrontation with defendant, supporting defendant’s
self-defense claim.  However, in this scenario, in order to retrieve the
pipe, the friend would have had to exit his truck, run to get the pipe, then run back to his truck, in the meantime passing by the
victim, who was bleeding profusely from a neck wound.  Given the
considerable distance between the friend’s truck and the site where the pipe
would have dropped in this scenario, and given that his friend was clutching
his neck and bleeding dramatically, it is difficult to imagine that the friend
would have or could have run to the site of the slashing, retrieved the pipe,
thrown the pipe in his truck, and only then offered aid to his dying friend,
all while escaping the notice of any of the other witnesses. 
¶ 23.         Finally,
as the trial court noted, the new witness’s testimony does not even corroborate
defendant’s version of events, because defendant testified that two men
approached him right before he purportedly struck out in self defense, whereas
the new witness described seeing only the victim and defendant.  Under
these circumstances, the trial court did not abuse its discretion by concluding
that the new witness’s testimony would probably not lead to an acquittal on
retrial.  
II.
¶ 24.         We
next consider defendant’s argument that the trial court should have dismissed
two jurors for cause.  
A.
¶ 25.         During
the jury draw, defense counsel asked whether jurors would be able to set aside
their natural desire to hear both sides of the story in the event that Mr.
Bruno did not testify.  One juror, E.R., responded, “I would find
something lacking if I didn’t hear from the defendant.”  The court briefly
interrupted and, in a conversation at the bench, out of the hearing of the
jurors, told defense counsel that in answering that question the jurors should
be made aware that defendant has a right to not testify.  Defense counsel
followed up with E.R., asking whether, if the law provides that defendant has
no obligation to testify, she could put aside her natural human interest in
hearing both sides.  The following colloquy ensued:
 
E.R.:  That’s the first time I’ve heard that, that
the defense doesn’t have to.  It’s the first time I’ve heard . . . that
it’s the State that is proving his guilt and that the defense is just
there.  I mean, he’s—he’s saying he didn’t do it, naturally, and so . . .
it’s the first time that I’ve really understood it, maybe.
 
 
Defense Counsel:  Good
 
 
E.R.:  Okay?  So at this point, I can honestly say that I could not
set that aside.
 
 
Defense Counsel:  You—at this point you can’t say it?
 
 
E.R.:  At this point I can’t say that – that I
could let go of that.  I didn’t hear his side of the story.
 
  Defense
Counsel:  Well, why don’t you think about it for a minute. 
I’ll change subjects.  
¶ 26.         Counsel
did change subjects and began asking jurors about their feelings relating to
drug abuse.  Defense counsel asked E.R. whether she would be able to set
aside the drug-dealing aspect of the case, despite her personal experiences
with drugs, and E.R. said she was not sure that she could.  The court
followed up, asking her in three different ways whether her feelings about
drugs might impair her ability to follow the court’s instructions, and whether
she could set aside the personal feelings in the back of her mind.  Each
time she replied that she could.  The court asked her whether she was
sure, and again whether she had any doubts.  Each time she reaffirmed that
she could set aside her feelings and follow the court’s instructions. 
Defendant requested to remove E.R. for cause, arguing that the court had
rehabilitated her, and that E.R. was only reassuring the court that she could
set aside her feelings in order to be obedient to the court.  The court
denied the objection, noting that the juror seemed to have had a hard time with
the issue when posed through defense counsel’s amorphous questions, but that
based on his observations, the juror answered his more pointed questions very
directly and did not appear to be struggling with the issue.  The court
stated that defense counsel could question E.R. further through the jury draw,
and he suggested that if further facts came out, he would reconsider.  
¶ 27.         Defense
counsel did not question E.R. again.  At the end of the questioning, she
renewed her request to remove E.R. for cause, acknowledging a “difference of
opinion” with the court about the juror.  The court asked, “Nothing new?”
 Defense counsel affirmed, “Nothing new.”  The court reaffirmed its
earlier position.  Moments later, defense counsel exercised a peremptory
challenge to remove E.R. from the jury, and subsequently exhausted all defendant’s peremptory challenges.  Upon exhausting
defendant’s peremptories, counsel noted her motion
for the record and indicated that had the court struck E.R. for cause, she
would have exercised the peremptory she used on that juror to strike yet
another. [2] 

¶ 28.         On
appeal, defendant argues that the court should have dismissed E.R. for cause,
both because of her initial acknowledgment that her personal experiences with
drugs could make it difficult for her to be objective, and because she was not
sure that she could get past her sense that she ought to be able to hear both
sides of the story.  We consider each challenge in turn.
¶ 29.         Criminal
defendants have a constitutional right to trial by an impartial jury. 
U.S. Const. amend. VI; Vt. Const. ch. I, art. 10.  We have recognized that “[t]rial courts must safeguard this right by excluding from the
jury persons who evince bias against the defendant.”  State v. Sharrow, 2008 VT 24, ¶ 6, 183 Vt. 306, 949 A.2d 428.  In Vermont, we divide challenges for
cause into two categories: “(1) those based on actual bias, and (2) those
grounded in implied bias.”  Id. ¶ 7. 
The former category refers to cases in which a prospective juror demonstrates
fixed bias.  We have explained, “A prospective juror has a fixed bias
when, through his or her answers to questions posed on voir
dire, the potential juror evinces a state of mind inconsistent with deciding
the case fairly.”  Id. ¶ 8.  For example, “A
prospective juror’s statement that [he or she] may have trouble putting aside .
. . prejudices, making a decision based only on the evidence, or applying a
burden of proof or law with which [he or she] disagrees indicates fixed
bias.”  Id.  Accordingly, we have held that a juror who
expressed her belief “that a defendant had an obligation to prove his
innocence” demonstrated fixed bias.  State v. Holden,
136 Vt. 158, 161, 385 A.2d 1092, 1094 (1978).  On the other hand,
“Where a prospective juror has stated that he or she can judge the case fairly,
or has at least failed to say that he or she could not, we have been reluctant
to conclude that the potential juror had a fixed bias as a matter of
law.”  State v. Herrick, 2011 VT 94, ¶ 16, ___ Vt. ___, 30 A.3d 1285. 
¶ 30.         We
review the trial court’s decision for abuse of discretion and have recognized
that “[t]he trial court is in a unique position to evaluate juror bias, and
given the special capacity of the trial judge to evaluate fixed bias on the
part of prospective jurors, that judge’s determination in this regard is
accorded great deference.”  Sharrow, 2008 VT 24, ¶ 11 (quotation and alterations omitted). 
As we have repeated before, “there are few aspects of a jury trial where we
would be less inclined to disturb a trial judge’s exercise of discretion,
absent clear abuse, than in ruling on challenges for cause in the empanelling
of a jury.”  Herrick, 2011 VT 94, ¶ 17 (quotation
omitted). 
¶ 31.         In
light of this deferential standard, we cannot conclude that the trial court
abused its discretion in declining to excuse E.R. for cause on the basis of her
initial, but subsequently repudiated, uncertainty about whether she could set
aside her views about drugs.  E.R.’s repeated assurances that she could,
in fact, follow the court’s instructions and the trial court’s articulated
observation that the juror did not appear to be struggling with the court’s
questions about whether she could follow the court’s instructions provide
additional support for this conclusion.
¶ 32.         Although
defendant also argues on appeal that E.R. was unfairly biased on account of her
discomfort with the notion that defendant was not obligated to testify,
defendant did not object to E.R. on that basis below.  In fact, after an
initial back-and-forth with E.R. on the topic, defense counsel asked her to
“think about it for a minute,” and then changed subjects.  Defense counsel
did not return to this line of questioning to give E.R. an opportunity to share
her evolving thoughts, move to excuse E.R. for cause on the basis of her
statements about the defendant’s obligation to testify, or take any other
action that would have put the court on notice that this issue was still on the
table, which would have given the court the opportunity to ask any clarifying
questions.  
¶ 33.         Parties
may raise for-cause challenges to prospective jurors any time before the jury
is impaneled, V.R.Cr.P. 24(b), and “ ‘the right
to challenge a juror is waived by a failure to object before the jury is
impaneled if the basis for the objection is known or might, with reasonable
diligence, have been discovered during voir
dire.’ ”  State v. Koveos, 169 Vt. 62, 66, 732 A.2d 722, 725 (1999)
(quoting In re Nash, 158 Vt. 458, 467, 614 A.2d 367, 372 (1991)) (alteration
omitted).  We therefore evaluate the trial court’s failure to excuse E.R.
on the basis of her beliefs regarding the presumption of innocence for plain
error.  V.R.Cr.P. 52(b); Koveos, 169 Vt. at 66, 732
A.2d at 725.  Plain error exists “only in extraordinary situations
where it is obvious and strikes at the heart of defendant’s constitutional
rights or results in a miscarriage of justice.”  Koveos, 169 Vt. at 66-67,
732 A.2d at 725 (quotation omitted).    
¶ 34.         We
conclude that the trial court’s failure to excuse E.R. did not constitute such
a miscarriage of justice.  Early on in the voir
dire, E.R. acknowledged that if a defendant did not tell his side of the story,
she would not be able to “let go” of that fact.  Later, in the context of
the questioning about her feelings concerning illegal drug use, E.R. apologized
and acknowledged, “This is all new to me.”  In that exchange, E.R. had
initially expressed misgivings about the impact of her feelings about drug
dealing on her view of the case, but she was clear and unequivocal in affirming
her ability to follow the court’s instructions when the court asked her
directly whether she could do so.  With respect to the issue concerning
defendant testifying, she never got a chance to consider or answer whether, if
the situation arose, she could set aside the fact that defendant did not take
the stand to tell his side of the story if the court specifically instructed
her to do so, and never got the chance to revisit the matter at all after
defense counsel asked her to “think about it for a minute.”  Under these
circumstances, we cannot conclude that the trial court’s failure to, sua sponte, excuse E.R. on
account of her answer to the question about defendant testifying was such an
obvious error, striking at the heart of defendant’s constitutional rights as to
warrant reversal. 
B.
¶ 35.         Defendant
also argues on appeal that the trial court should have dismissed juror J.T. for
cause.  The questionnaire completed by prospective jurors prior to the
jury selection asked for them to disclose whether any family members were
affiliated with any of various listed law enforcement entities.  At the
beginning of the jury draw, the court allowed individual voir
dire with several prospective jurors, including J.T.  J.T. had indicated
on the questionnaire that she had a family member who worked at a Vermont
correctional facility.  In the individual voir
dire, the state’s attorney engaged in the following back-and-forth with J.T.:
 
Q. You also indicated in your questionnaire . . . that either someone in your
family or immediate family has worked . . . as a correctional officer employed
by the State of Vermont?
 
A. Correct.
 
Q. And who would that person be?
 
A. My brother.
 
Q. Okay.  Do you live with him?
 
A. No.
 
Q. Okay.  How often do you see him?
 
A.  Two or three times a month.
 
Q. And how long has he been employed as a correctional officer, to the best of
your knowledge?
 
A. A little over five years.
 
Q. Have you spoken to him regarding Jonathon Bruno?
 
A. No.
 
Q. Has he spoken to you?
 
A. No.
 
Q. Have you been instructed by the judge as to asking people to not talk to you
about the case and not reading material?  Are you prepared to do that
should he bring up anything regarding Jonathan Bruno?
 
A. Yes.
 
¶ 36.         Defendant
sought to remove J.T. for cause.  His challenge did not focus on the fact
that J.T.’s brother was a correctional officer but, rather, rested on the
premise that the line of questioning to which J.T. was subjected effectively
disclosed to her the highly prejudicial fact, not otherwise to be disclosed to
the jury, that defendant was incarcerated.  The trial court denied the
motion.  The court noted the absence of any evidence of fixed or implied
bias, and rejected the suggestion that the line of question necessarily
supported the inference that defendant was incarcerated.  The court noted
that the questionnaire from which the information about J.T.’s brother was
drawn asked jurors to disclose connections to a host of different types of law
enforcement personnel.
¶ 37.         We
evaluate the trial court’s determination for abuse of discretion.  Sharrow,
2008 VT 24, ¶ 11. We recognize that exposing the jury to a defendant in
shackles, or otherwise emphasizing a defendant’s incarcerated status, may in
some cases undermine the presumption of innocence that is essential for a fair
trial.  State v. Lee, 2008 VT 128, ¶ 27, 185 Vt. 110, 967 A.2d 1161.  In this case, the trial court did not
abuse its discretion in concluding that the brief, routine questioning of J.T.
regarding her brother’s employment as a correctional officer did not support
the inference that defendant must be incarcerated.  Id. ¶ 28
(holding that trial court did not abuse its discretion in declining to order
mistrial on basis of speculation that jury knew that defendant was
incarcerated).  Even if J.T. might have concluded on the basis of the
state’s attorney’s questions that defendant had at some time been incarcerated,
“a brief reference to a defendant’s incarceration is not enough . . . to
undermine the presumption [of innocence] and cause a mistrial.”  Id. ¶ 27.[3] 

III.
¶ 38.         Finally,
we consider defendant’s challenge to the jury instruction concerning diminished
capacity.  In July 2007, defendant consulted a physician who specializes
in treating substance-abuse addiction for help with his heroin addiction; the
physician prescribed Suboxone, which reduces the
craving for heroin.  That physician testified that
two months later, defendant was talking fast and could not stay on topic. 
Defendant testified after he started Suboxone, he
began using crack cocaine throughout the summer and fall of 2007.  The
physician testified that on October 30, 2007, the day before the killing,
defendant was very agitated; he spoke quite rapidly, he bounced from topic to
topic, he had perceptions that bordered on paranoia, and his thought content
was only marginally reality-based.  Defendant testified that prior to the
incident he smoked crack at a friend’s house before going to Walmart in the afternoon.  On the basis of this and
other evidence, defendant argued to the jury that he had diminished
capacity—that is, his mental illness and substance abuse affected his state of
mind and impaired his capacity to form the necessary intent at the time of the
altercation with the victim.  
¶ 39.         The
court provided the parties with draft jury instructions, which they reviewed
with the court the morning of closing arguments.   Defendant made
only one objection pertinent to the issues now raised
on appeal, and in response, the court altered the charge.  After the court
made the change, defense counsel acknowledged that the change satisfied the
defense’s concerns.  The relevant portions of the court’s instructions to
the jury concerning diminished capacity are as follows:
 
Mr. Bruno is charged with second-degree murder, which requires the State to
prove that he acted with a wanton disregard of the likelihood that death or
great bodily harm would result.  Evidence that he was under the influence
of drugs and that he suffered from a mental condition may be relevant in
determining whether he had the mental capacity to form this intent, and whether
he actually did so. 
 
 
You must consider all of the evidence, including any evidence of mental
condition and cocaine intoxication, in reaching your decision.  
 

 
The mitigating circumstance of diminished capacity does not justify the
killing, but may only lessen the level of the offense from second degree murder
to manslaughter. . . .
 
           
  . . . .
 
  At the same time,
you may find that the degree of crime is reduced from second-degree to
voluntary manslaughter if Mr. Bruno’s mental state was influenced by
extenuating circumstances, such as diminished capacity, or sudden passion, or
great provocation that would cause a reasonable person to lose self-control.
¶ 40.         In
the second-degree murder instruction the court also defined the requisite state
of mind with more specificity:  “It is more than extreme negligence. 
The State must have proven that Mr. Bruno was actually aware of the risk of
death or great bodily harm and that he ignored that risk.”  
¶ 41.         Defendant
makes two arguments on appeal.  First, he contends that the instruction
was confusing and failed to give the jury clear direction about what to do if
it found that defendant’s capacity was diminished such that he could not form
the requisite intent.  In particular, he points to the statements that
support that he was under the influence of drugs and that he suffered from a
mental condition “may” be relevant in determining whether he had the requisite
mental capacity, and that the mitigating circumstance of diminished capacity
“may only lessen the level of the offense” from second-degree murder to
manslaughter.  Second, he argues that the court’s reference in the
voluntary manslaughter instruction to “a reasonable person” in proximity to its
reference to diminished capacity improperly instructed the jury to apply an
objective rather than subjective test in considering whether defendant had
diminished capacity. 
¶ 42.         We
have described “diminished capacity” as “a mental disability of the defendant
at the time of the alleged commission of the offense which precludes or
prevents the defendant from forming a specific intent or having the required
state of mind which is an essential element of the offense.”  State v.
Wheelock, 158 Vt. 302, 311, 609 A.2d 972, 977 (1992); see also State v.
Williams, 2010 VT 83, ¶ 20, 188 Vt. 413, 8 A.3d 1053 (identifying the
“critical connection between diminished capacity and intent”).[4]  
¶ 43.          On
appeal, “We review jury instructions in their entirety to determine if they
sufficiently guided the jury and did not have a prejudicial impact on their
deliberations.”  State v. Jones, 2008 VT 67, ¶ 23, 184 Vt. 150, 955 A.2d 1190.  We have recognized that “there is no
error if the jury charge as a whole conveys the true spirit and doctrine of the
law, and there is no fair ground to say the jury has been misled by it.”  State v. Streich, 163 Vt. 331,
353, 658 A.2d 38, 53 (1995) (quotation omitted).  Because defendant
did not make these objections to the jury instruction below, we review for
plain error.  State v. Tahair, 172 Vt.
101, 104-05, 772 A.2d 1079, 1082 (2001); Wheelock, 158 Vt. at 306, 609
A.2d at 975 (explaining that preservation rule gives trial court “one last
opportunity to avoid an error”).  And, as noted above, “[p]lain error will
be found only in rare and extraordinary cases where the error is obvious and
strikes at the heart of defendant’s constitutional rights or results in a
miscarriage of justice.”  Streich, 163
Vt. at 353, 658 A.2d at 53.  
¶ 44.         Applying
this deferential standard, we do not find plain error in the trial court’s
instruction.  The instruction made it clear that an essential element of
the second-degree murder charge was the requisite intent of wantonness, and
that evidence that defendant was under the influence of drugs and that he
suffered from a mental condition may be relevant in determining whether he had
the mental capacity to form that intent.  The court specifically
instructed the jury that if the State failed to prove each of the
essential elements of second-degree murder, then it was required to consider
whether defendant was guilty of one of the lesser manslaughter offenses. 
The instructions advise the jury twice that if it found diminished
capacity, it could not convict of second-degree murder.  We cannot agree
with defendant’s argument that this instruction failed to tell the jury what it
was required to do if it found that defendant’s capacity was diminished such
that he could not form the requisite intent.
¶ 45.         Likewise,
we cannot agree that the specific language cited by defendant—some of which was
expressly endorsed by defendant at the charge conference—is so confusing as to
constitute plain error.  The court’s instruction that defendant’s drug use
or mental condition may be relevant in assessing his mental capacity,
and may lessen the offense to manslaughter reflects the court’s
recognition that whether or not those conditions sufficiently interfered with
his capacity to inform the requisite intent to qualify as “diminished capacity”
was a question for the jury.  
¶ 46.         Nor
do we agree that the language cited by defendant in the voluntary manslaughter
charge impermissibly instructed the jury to apply an objective standard in its
diminished capacity analysis.  In its instruction concerning voluntary
manslaughter, the trial court stated:  
  The last
essential element of voluntary manslaughter is that, in causing the death of
[the victim], Mr. Bruno acted with a wanton disregard of the likelihood that
death or great bodily harm would result even if Mr. Bruno’s mental state was
influenced by mitigating and extenuating circumstances, including diminished
capacity, or sudden passion, or great provocation that would cause a reasonable
person to lose self-control. [5]
The reference to the impact on a
“reasonable person” in this instruction is most reasonably interpreted to refer
neither to the list as a whole, nor, in particular, to the diminished capacity
factor.  
¶ 47.         We
reach this conclusion for several reasons.  First, the context of the
reference is the likelihood that something would “cause a reasonable person to
lose self control.”  The concept of losing self control makes sense in
response to a great provocation, or even a sudden passion.  But diminished
capacity, as described above, refers to one’s ability to form certain states of
mind, not to the ability to control one’s actions.  Moreover, the court’s
further explication of the concepts of “sudden passion” and “great provocation”
both expressly direct the jury to apply a reasonable-person standard; its
further explanation of diminished capacity does not.  In fact, the
second-degree-murder instruction advises the jury—twice—to consider whether he
had the capacity, and whether he actually did have the necessary intent
or awareness.  This is a subjective standard.  Finally, the multiple
references in the discussion of diminished capacity to defendant’s intoxication
and mental illness—both defendant-specific conditions—would make little sense
in the context of an “objective” analysis.  Viewing the jury instruction
in its entirety, we do not agree that it improperly called for the application
of an objective standard in the diminished capacity analysis.  Jones, 2008 VT 67, ¶ 23. 
¶ 48.         For
the foregoing reasons, we conclude that the challenged jury instruction did not
result in plain error.
Affirmed. 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
The trial court responded to defendant’s argument that the witness had no
motive to lie by hypothesizing generally about her possible motivations: 
 
While the Court
cannot, with absolute certainty, ascribe a specific reason for her to testify
falsely, the evidence suggests that she may, for reasons known only to her, be
attempting to assist Mr. Bruno, or that her mental health and/or substance
abuse issues have resulted in her coming forward to inject herself into the
case. 
 
We agree with defendant that
there is nothing in the record to support the trial court’s suggestion that the
new witness’s past drug use or mental health problems led her to make up
stories.  We view the court’s musings as mere hypotheses, and not as
grounds underlying the trial court’s credibility determination.  The court
specifically identified a host of other factors to support that
determination.  


[2] 
If E.R. should have been dismissed for cause, defendant suffered prejudice by
using a peremptory, even though E.R. did not actually sit on the jury. 
See State v. McQuesten, 151 Vt. 267, 269-70,
559 A.2d 685, 686-687 (1989) (prejudice resulted when defendant used peremptory
to remove jurors with fixed biases and used all peremptories);
State v. Doleszny, 146 Vt. 621, 622, 508 A.2d
693, 694 (1986) (same).


[3] 
On appeal, defendant also suggests without further argument that the fact that
J.T.’s brother worked at the correctional facility where defendant was held was
itself a reason to remove J.T. for cause.  Defendant did not raise this
argument below, so we review for plain error.  Koveos,
169 Vt. at 66, 732 A.2d at 725.  In the absence
of any evidence at all of actual bias arising from J.T.’s brother’s status, we
are left to consider whether this connection supports a challenge predicated on
implied bias.  Sharrow, 2008 VT 24, ¶ 7.  The law infers bias when,
“irrespective of the answers given on voir dire, the
prospective juror has such a close relationship with a participant in the
trial—a witness, a victim, counsel, or a party—that the potential juror is
presumed unable to be impartial.”  Id. at ¶ 14. 
J.T.’s link to her brother who, in turn, may or may not have contact with
defendant could not support a challenge on the basis of implied
bias.       


[4] 
We recognize that we have also framed diminished capacity as a defense that
mitigates the degree of homicide from murder to voluntary manslaughter without
tying it as tightly to its impact on intent.  State
v. Sexton, 2006 VT 55, ¶ 13, 180 Vt. 34, 904 A.2d 1092; State v. Blish, 172 Vt. 265, 270-71, 776 A.2d 380, 385 (2001). 
Our analysis in this case is the same under either framework, and this appeal
for plain error analysis that does not directly implicate the issue is not a
propitious vehicle for reconciling the arguably disparate threads of our
jurisprudence on the issue.  


[5] 
In his brief, defendant refers to the manslaughter instruction in connection
with this claim of error.  However, the accompanying record citation
points to similar but substantially different language within the second-degree
murder charge.  We evaluate defendant’s claim based on the text of his
brief rather than the cited transcript section.



