2012 VT 34



State v. McCarthy (2010-297)
 
2012 VT 34
 
[Filed 04-May-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, 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 34

 

No. 2010-297

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Franklin Unit,


 


Criminal Division


 


 


Joseph M. McCarthy


December Term, 2011


 


 


 


 


Mark
  J. Keller, J.


 

Thomas Donovan, Jr., Chittenden County State’s Attorney, and
Pamela Hall Johnson, 
  Deputy State’s Attorney, Burlington, for
Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Marshall Pahl,
Montpelier, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.   Defendant appeals from his conviction of
involuntary manslaughter following a jury trial.  Defendant set up a
dangerous shooting range on his property and invited others to join him in
firing weapons at the site.  An errant bullet struck and killed a neighbor
in his nearby home.  Defendant argues that: (1) a jury view of the scene
presented misleading and prejudicial evidence and was not conducted with the
necessary procedural and evidentiary safeguards; (2) the trial judge
impermissibly assumed the roles of an advocate and a witness in reviewing the
jury view; (3) the court erred by failing to excuse one of the jurors; and (4)
his conviction was not supported by sufficient evidence.  We affirm.
¶ 2.            
Viewing the evidence in the light most favorable to the State as the
prevailing party, the jury could have found the following.  Defendant
decided to set up a shooting range in his back yard.  On September 23,
2008, he invited several friends to come shoot at the range.  When the
friends arrived at the mowed out area by defendant’s house, at defendant’s
direction they set up the targets on several stumps.  One of the friends
brought over a shooting bench and placed it at the north side of the
range.  The direction from the bench to the targets was south by
southwest.  The distance between the bench and the targets was
approximately forty-three yards.  
¶ 3.            
Behind the target area was a stone and rock wall approximately one to
two feet high.  Several trees were slightly in front of the rock
wall.  Beyond the wall was a sparsely wooded area about 200 feet deep, and
beyond that were open fields.  The landscape to the south rose slightly
and gradually, but there were no significant hills or anything else to act as a
berm behind the wooded area.  
¶ 4.            
Approximately 250 yards from the shooting bench, in the general
direction of the targets, was a home belonging to the Reiss family.  From
the shooting bench, the difference in angle to the target versus to the Reiss
home was only six degrees.  The difference in elevation between a shot at
the target and a shot at the Reiss home was less than two inches.  As a
consequence, if a shooter pointed the gun barrel three inches to the right of
the target that was forty-three yards away, and just under an inch up, the shot
would hit the neighbor’s house.  
¶ 5.            
The Reiss house was visible from a mowed path leading down to the
shooting area.  One of the members of the group noted the neighboring
house, and defendant assured him that the trees and hills behind the targets
made the shooting arrangement safe.  By his own admission, defendant had
no way of knowing whether he or his fellow shooters would consistently hit
their targets, or whether either of his friends were good shooters. 
Defendant also acknowledged that he should have been aware of the fact that a
bullet could go high and to the right, leaving nothing to stop it.  
¶ 6.            
Members of the group took turns firing a variety of firearms, including
rifles with maximum ranges of over two miles.  One of these rifles was a
SKS-style semi-automatic rifle.  Three people, including defendant, fired
the SKS.  Although he had recently taken a hunter safety course, defendant
himself had little experience with high-powered rifles.  
¶ 7.            
Toward the end of the group’s shooting session, the neighbor, John
Reiss, was eating dinner in his home when he was killed by an errant bullet fired
from defendant’s shooting range.  The fatal bullet was fired from the SKS
rifle.  
¶ 8.            
Defendant was charged with involuntary manslaughter.  The
information alleged that he unlawfully caused Reiss’s death and acted with
criminal negligence by setting up a shooting range in an inherently dangerous
location and by allowing for the discharge of rifles in that location in
violation of 13 V.S.A. § 2304.  Following a jury trial, which included a
site visit, the jury found defendant guilty.  After the trial court denied
his motion for a judgment of acquittal or a new trial, defendant appealed.
I.
¶ 9.            
Defendant first challenges the site visit conducted during the trial, as
well as the surrounding proceedings.  He argues that the court should not
have allowed the visit under Vermont Rule of Evidence 403, that the visit
itself was not conducted properly, and that in making its record of the site
visit the trial judge impermissibly became a witness and advocate in violation
of Vermont Rule of Evidence 605 and Vermont’s Code of Judicial Conduct. 
We consider each argument in turn.
A.
¶ 10.        
In its motion for a site visit, the State explained that its trial
evidence would focus largely on what defendant knew, or should have known,
about the risks associated with the location of his shooting range. 
Critical to that analysis, the State asserted, was for the jury to be able to
visualize the topography of the properties, the “backdrop” that defendant used
for his shooting area and the surrounding area, the view of the Reiss property
from various locations on defendant’s property, and the general geographic
surroundings.  The State argued that the unique features of these scenes
could not be fully conveyed through photographs, maps, or videos.  The
State acknowledged that the conditions at the respective properties had changed
since September 2008, but argued that the changes would be so obvious that they
would not mislead jurors or cause them to ignore evidence offered at
trial.    
¶ 11.        
Defendant opposed the State’s request.  He argued that a site visit
would confuse and mislead the jury and unfairly prejudice him.  Defendant
asserted that the scene had not been preserved and that critical landmarks had
either been moved or removed.  He also noted that the view would occur in
May, rather than September, which might give jurors misleading ideas about what
was visible at the time of the incident.  Defendant maintained that
photographs of the scene were the best evidence and that the site view would be
needlessly cumulative.
¶ 12.        
Following a hearing, the court granted the State’s motion, concluding
that a view would assist the jury in understanding the general geographic
layout of the area; would allow the jurors to gain a full understanding of the
evidence and the scene’s unique features, which could not be entirely conveyed
by other means; and would not unduly prejudice defendant since the purpose was
not to “appeal to a jury’s sympathies, arouse its sense of horror, provoke its
instinct to punish, or trigger other mainsprings of human action that may cause
a jury to base its decision on something other than the established
propositions in the case.”  State v. Bruyette, 158 Vt. 21, 31, 604
A.2d 1270, 1274 (1992) (quotation and alterations omitted).  To the extent
the scene had changed from the time of the events at issue, the court
continued, it could curtail the risk of jury confusion by instructing the jury
to keep in mind the other evidence presented at trial when viewing the
conditions of the property.  
¶ 13.        
Defendant challenges this ruling on appeal.  He essentially
reiterates his position below, arguing that there were material changes to the
scene which could have misled or confused the jury.  He also complains
that a remedial instruction given by the court was not effective because it was
not delivered “promptly” after the jury viewed the evidence and because the
language used was “too weak to correct such a prejudicial error.”  
¶ 14.        
The trial court has discretion in exercising its inherent power to allow
or deny a request for a jury view, subject to the constraints of the Vermont
Rules of Evidence.  See Alberino v. Balch, 2008 VT 130, ¶ 8, 185
Vt. 589, 969 A.2d 61 (mem.) (recognizing that “the finder of fact may conduct a
site visit or other analogous inspection, and may base its findings upon such
examination together with all the evidence in the case” (quotation omitted)); State
v. Brown, 147 Vt. 324, 328, 515 A.2d 1059, 1062 (1986) (reviewing request
for a jury view with respect to a crime that predated V.R.E. 403); see
generally V.R.E. 402-403 (addressing admissibility of relevant evidence). 
The trial court’s discretion to allow relevant but arguably prejudicial
evidence is particularly broad because Rule 403 provides for exclusion only
when the danger of unfair prejudice substantially outweighs the
probative value.  State v. Lee, 2005 VT 99, ¶ 11, 178 Vt. 420, 886
A.2d 328.  Unless the trial court either totally withheld its discretion
or exercised it “on clearly untenable or unreasonable grounds,” the trial
court’s evidentiary ruling will stand.  Id. 
¶ 15.        
As set forth above, the trial court thoughtfully evaluated the potential
value of a site visit in this case in which the topography and natural features
of the site were of critical importance.  The court recognized that there
would be changes to the scene, but found that the changes would be obvious and
not prejudicial to defendant, and that any confusion could be addressed with a
cautionary instruction.  We cannot conclude that the trial court abused
its discretion in reaching these conclusions.  The court plainly “weighed
the competing interests here and its conclusion was within its
discretion.”  State v. Wheel, 155 Vt. 587, 604-05, 587 A.2d
933, 944 (1990); see also Ledford v. State, 709 S.E.2d 239, 254 (Ga.
2011) (holding that, despite changes at crime scene, trial court did not abuse
its discretion in allowing jury site visit in capital murder trial “because the
scene view might have aided the jurors in their understanding of the evidence
despite the changes and because the jurors were able to see the original
condition of the scene in the photographs that were in evidence”).  
¶ 16.        
Moreover, the court amply addressed concerns about changes to the site
with instructions to the jury both before and after the site view.  The
evening before the jury view, the court described the myriad ways in which the
specifics of the scene they were going to visit differed from the scene at the
time of the shooting:  the stumps that supported the target at the time of
the original shooting were gone, the bench was not likely in the same location,
trees had likely changed, and time had passed.  The court explained that
the purpose of the view was for the jurors to “get a general perception of how
everything relates,” and “for the big picture not for the small picture.” 
The court advised the jury to look at how the shooting area related to the
houses and the surrounding vegetation “in the gross sense.”  The court
further explained that with respect to the specifics, the jury should not rely
on its observations at the site but, rather, should consider the photographs of
the scene as it appeared following the shooting that had been entered into
evidence.  In fact, the court sent a notebook of the photographs admitted
into evidence with the jury during the jury view so that the jury could relate
the actual photographs that depicted the scene of the shooting to the broader
surroundings on the site visit.  Following the view, the court
reiterated to the jury its admonition about the changes to the specifics of the
site and the limited purpose of its visit.[1]  
¶ 17.        
The court’s instructions were sufficient to ward off the potential
confusion the jury may have otherwise experienced as a result of the changes in
the site between the day of the shooting and the day of the jury view, and to
limit the purposes for which the jury considered the view.  We presume
that the jury followed the court’s instructions.  State v. Messier,
2005 VT 98, ¶ 15, 178 Vt. 412, 885 A.2d 1193. 
B.
¶ 18.        
We next turn to the site visit itself.  Prior to the site visit,
the court informed the jurors that they could not talk amongst themselves about
what they saw.  Additionally, the court indicated its expectation that the
jury would be walking as a “semi group,” although they could branch off a little.
 The court provided counsel with the opportunity to propose
additional instructions to the jury, but neither party did so.  
¶ 19.        
During the site visit, each juror was provided with a diagram depicting
the properties.  One juror carried a binder containing all of the
photographs admitted at trial, and a court officer carried a large aerial
photograph depicting where the specific photographs were taken.  The
jurors were told that they could reference these materials during the site
view.  
¶ 20.        
Following the site visit, the court recited its observations concerning
the conduct of the visit into the record.  It did so on the record in the
presence of counsel, but outside the presence of the jury and without any
objection from counsel.  The court recounted that the group had gone first
to the Reiss home and then to defendant’s property.  It noted that the
jurors had scattered more while visiting defendant’s property.  The court
also explained that the group had gone down to the shooting range by one path
and back by a second path.  The court acknowledged that defense counsel
raised concerns about the decision to go back by the second path but the court
declined to address her objections because “it wasn’t an appropriate place to
entertain the conversation.”  The court noted that the Reiss house was
visible from both paths, although probably more visible by the first path used
by the parties.  At defense counsel’s request, the court stated on the
record that the press had been present at the site view.  The court also
instructed the jury again, at defense counsel’s request, that the stumps and
shooting bench had been moved since September 2008.  Neither party asked
to correct or supplement the record beyond that.
¶ 21.        
In his motion for a new trial, defendant argued that he was prejudiced
by “the conditions under which the site visit occurred.”  He argued that
the jurors had been seen walking around separately, as well as in small groups,
and that it was impossible to know if they had talked about the
case—particularly when groups of jurors were looking at the binder of
photographs at the same time.  Defendant also asserted that one juror was
seen trying to “reenact” the shooting.  
¶ 22.        
The court denied the motion for new trial.  As an initial matter,
it disagreed with many of the factual assertions in defendant’s motion. 
The court reiterated its prior summary of the site view and supplemented its
findings.  With respect to defendant’s argument about the jury staying
together during the site visit, the court found that defense counsel had been
given the opportunity to propose instructions for the site view and that
counsel had at no time mentioned that she wanted the jury to walk around the
site together.  The court also concluded that counsel overstated the
extent to which jurors were dispersed during the view.  The group had not
been allowed to roam free, the court explained.  Rather, they were led to
one area, allowed to look around that area, then led to another area and allowed
to look around again.  
¶ 23.        
The court recognized that three or four jurors had been looking at the
photo book together, and in response, the court had again told the jurors not
to discuss any aspect of the case.  The trial judge also explained that he
had remained up on a hill during the site view so that he could keep track of
the jurors and ensure they were not talking or being approached.  As to
the juror who was allegedly reenacting the shooting, the court found that the
juror appeared to be trying to get a better idea of the angles involved. 
The court did not consider this to be an improper reenactment; rather, it found
that the juror was trying to work though evidence in his own manner. 
Based on these and other findings, the court denied defendant’s motion.  
¶ 24.        
On appeal, defendant reiterates the above arguments and also points to
the court’s refusal to entertain an objection to the jury’s using the second
path to the shooting range and the court’s speaking with members of the press who
were present on site as evidence of the lack of procedural safeguards in
connection with the view.  Defendant argues that in light of these
factors, the jury view gave rise to improper extraneous influences on the jury.

¶ 25.        
The court may grant a new trial on a defendant’s motion “if required in
the interest of justice.”  V.R.Cr.P. 33.  The trial court has
discretion in considering such motions, and “its decision will not be
overturned unless its discretion was abused or withheld.”  State v. Miller,
151 Vt. 337, 339, 560 A.2d 376, 377 (1989).  One claiming that a jury’s
verdict is tainted by extraneous influences must demonstrate that the
irregularity had the capacity to influence the result of the trial.  State
v. Griffin, 152 Vt. 41, 45, 563 A.2d 642, 645 (1989).  
¶ 26.        
We agree with defendant that as a general matter courts should carefully
structure jury views, instructing jurors definitively and in advance that they
should not talk to one another or engage in independent exploration at the
view, supervising the jurors and parties at the site of the view, and being
available to address issues as they arise.  United States v. Gray,
199 F.3d 547, 550 (1st Cir. 1999).  We acknowledge that this site visit
could have been more tightly managed; however, given the court’s repeated
instructions regarding the limited purpose of the site visit, we cannot
conclude that the court abused its discretion in allowing jurors some latitude
as they walked around the general area of the shooting range.  Nor is the
fact that jurors were conversing among themselves evidence of improper
extraneous influence in this case.  The court repeatedly reminded the
jurors not to talk about the case, and we presume that the jury followed
the court’s instructions.  Messier, 2005 VT 98, ¶ 15. 
Likewise, given the court’s admonitions that the jury should rely on the
evidence admitted in the courtroom with respect to the specific locations of
the shooters and targets relative to the neighboring house, we conclude that one
juror’s use of his arm to help him consider sight lines from various positions
does not give rise to a “suspicious taint by extraneous influences,”
compromising the integrity of the jury’s verdict.  Griffin, 152 Vt.
at 45, 563 A.2d at 645.  Defendant has not identified any prejudice
arising from the jury’s access to both paths leading to and from the shooting
range, or from the court’s interactions with members of the press. 
Accordingly, we cannot conclude that the jury view gave rise to irregularities
with the capacity to influence the result.  
C.
¶ 27.        
Finally, defendant argues that the trial judge impermissibly assumed the
roles of an advocate and a witness by recording observations on the record, out
of the presence of the jury, about the conduct of the site visit.  See
V.R.E. 605 (“A judge sitting at the trial may not testify in that trial as a
witness.”); A.O. 10, Canon 3B(5) (requiring judges to discharge their
adjudicative duties “without bias or prejudice”).  
¶ 28.        
The judge’s on-the-record, away-from-the-jury description of the jury
view in this case did not constitute “testimony” or advocacy, but was akin to
the kinds of observations judges make in the course of their duties presiding
over trials.  See, e.g., State v. Forty, 2009 VT 118, ¶ 27, 187 Vt.
79, 989 A.2d 509 (describing how trial judge observed that witness had been in
courtroom during other testimony in violation of sequestration order and
therefore did not allow witness to testify); Wheeler v. Cent. Vt. Med. Ctr.,
155 Vt. 85, 95, 582 A.2d 165, 171 (1990) (“[T]he judge’s observations [of a
juror] can be as critical to a disqualification decision as the words of the
juror herself.”).  A trial court’s observations about the conduct of a
trial are inherent to its role as presiding judge, and trial courts, as a
matter of course, draw on their own observations in making legal and factual
rulings.  State v. Hampton, 579 N.W.2d 260, 262-63 (Wis. Ct. App.
1998) (holding that judge who presided over trial and observed dozing juror was
not by virtue of his observations a “material witness” disqualified from
presiding over subsequent proceeding regarding extent of juror’s
inattention).  
¶ 29.        
Indeed, courts and commentators have noted the importance of making a
record of jury views.  See, e.g., Gray, 199 F.3d at 550 (“Of
obvious importance is the court’s responsibility to ensure that what transpires
at the view is fully and accurately recorded, most likely by a court
reporter.”); In re Application to Take Testimony In A Criminal Case Outside
Dist., 102 F.R.D. 521, 524 (E.D.N.Y. 1984) (noting that a record of a view
can be made by television, film cameras, still films, and reporters present to
take remarks); H.D. Wendorf, Some Views on Jury Views, 15 Baylor L. Rev.
379, 384 (1963) (explaining that lack of record of jury view can be adequately
addressed by providing a summary of view proceedings in record).  We
acknowledge that the better practice is to make a record using video or in some
cases a court reporter, but recognize that the trial court’s oral summary of
the jury view was intended to create some record of the proceedings.
¶ 30.        
 Defendant’s reliance on our decision in State v. Gokey,
2010 VT 89, 188 Vt. 500, 14 A.3d 243, is misplaced.  In that case, the
trial court was trying to address concerns with the defendant’s health and to
respond the defendant’s request to continue the proceedings on the third full
day of trial.  Before notifying counsel and giving the parties the chance
to object and call witnesses on the question, the court interviewed in chambers
the officers who had transported the defendant to court about the defendant’s
demeanor, and contacted a pharmacist to discuss the effects of medication taken
by defendant.  This Court held that, in so doing, the trial judge became a
witness through off-the-record fact-gathering and by initiating ex parte
communications; the court stepped out of its role as a neutral judge by
gathering and relying on evidence that disproved claims about defendant’s
condition.  Id. ¶¶ 15-16.  In this case, the issue is
different.  Counsel for both parties were present at the jury view, along
with the court.  As in Gokey, the court recounted its observations
on the record in the presence of counsel.  In contrast to Gokey,
however, the court’s underlying observations of the jury view were made in the
presence of counsel so that when the court recounted its observations, both
parties could then note their specific objections or request that the court
include additional observations on the record.  In fact, at defendant’s
request the court did address on the record additional matters relating to the
conduct of the jury view.  Thus, the court’s statements here are less
those of a witness and more those of a reporter, and Gokey is inapposite. 

II.
¶ 31.        
Defendant next argues that he was denied the right to a trial by an
impartial jury because the court did not remove a juror based on that juror’s
friendship with one of the prosecutors, and on the juror’s conversation with
the prosecutor during the jury view.  
¶ 32.        
During voir dire, one of the prospective jurors stated that she thought
she might know the wife of one of the prosecuting attorneys, Mr. Jiron, from
church.  She noted that she had last interacted with Mr. Jiron’s wife five
years earlier.  In response to the State’s inquiry, the juror indicated
that this contact would have no impact on her ability to be impartial. 
Defendant did not inquire about this relationship during voir dire and did not
move to strike the juror.  
¶ 33.        
During the site visit, the juror and Mr. Jiron engaged in one-on-one
conversation.  When they returned to court, defendant raised the issue and
Mr. Jiron recounted that he had exchanged pleasantries with the juror about
their respective families.  Mr. Jiron stated that he had not spoken to the
juror in three to four years, possibly longer, and that he had seen the juror
only at church and did not socialize with her outside of church other than one
lunch at the juror’s home with his family three to five years earlier. 
¶ 34.        
At defendant’s request, both the court and defense counsel questioned
the juror; her account of the conversation during the jury view and of their
prior relationship was consistent with Mr. Jiron’s.  The juror reiterated
her belief that the relationship would not affect her view of the case. 
Following this exchange, the court denied defendant’s request to excuse the
juror for cause.  
¶ 35.        
On appeal, defendant argues that the trial court should have dismissed
the juror in question for cause once the extent of her relationship with Mr.
Jiron became apparent, and in light of their social exchange during the jury
view.  “Criminal defendants have a constitutional right to trial by an
impartial jury.”  State v. Sharrow, 2008 VT 24, ¶ 6, 183 Vt. 306,
949 A.2d 428.  “Trial courts must safeguard this right by excluding from
the jury persons who evince bias against the defendant.”  Id. 
This Court has recognized that “[t]he 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 . . . that the potential juror is presumed
unable to be impartial.”  Id. ¶ 14.  As we have explained,
“the doctrine of implied bias is reserved for exceptional situations in
which objective circumstances cast concrete doubt on the impartiality of a
juror.”  Id. ¶ 16 (emphasis added).  
¶ 36.        
Thus, for example, we have found implied bias as a matter of law where a
juror was a current patient of a defendant-doctor in a malpractice suit.  Jones
v. Shea, 148 Vt. 307, 310, 532 A.2d 571, 573 (1987) (noting the “powerful
trust that a patient may have in his physician’s professional judgment”). 
We have concluded that a parishioner in a religious organization whose leaders
had publicly asserted that a case posed substantial financial risk for the
organization with possible adverse consequences for its members should be
disqualified on the basis of implied bias from sitting as a juror in that
case.  Turner v. Roman Catholic Diocese of Burlington, Vt., 2009 VT
101, ¶ 65, 186 Vt. 396, 987 A.2d 960; see also State v. Kelly, 131 Vt.
358, 360-61, 306 A.2d 89, 90 (1973) (holding that prospective juror who was
mother of a secretary at state’s attorney’s office and aunt of state prison
guard was presumptively unable to be impartial where defendant stood accused of
attacking another state prison guard).  
¶ 37.        
On the other hand, we have declined to infer bias as a matter of law
when a juror was a former patient of a defendant-doctor in a malpractice
suit, Jones, 148 Vt. at 310, 532 A.2d at 573, when a juror was a police
officer who had taught and worked with some of the law enforcement officers the
State planned to call as witnesses, Sharrow, 2008 VT 24, ¶ 17, and where
a prospective juror in a sexual assault case had a granddaughter who was the
victim of a sexual assault,  State v. Percy, 156 Vt. 468, 477-81,
595 A.2d 248, 253-55 (1990).
¶ 38.        
This case does not present the kind of “exceptional circumstances”
required to trigger a finding of implied bias.  The juror in question had
a passing acquaintance with the prosecutor several years before the trial began
and engaged in a brief exchange of pleasantries with counsel during the jury
view, but their relationship was not “close.”  Accordingly, the trial
court did not err in declining to excuse the juror on the basis of her
acquaintance with a prosecuting attorney.[2]

III.
¶ 39.        
Finally, defendant argues that the evidence was insufficient to support
his conviction because it does not support a finding of criminal negligence,
and because the causal connection between his acts and the victim’s death was
too attenuated.  We consider each claim in turn.  
¶ 40.        
When reviewing the court’s denial of a motion for judgment of acquittal,
we ask 
whether
the evidence, when viewed in the light most favorable to the State and
excluding any modifying evidence, fairly and reasonably tends to convince a
reasonable trier of fact that the defendant is guilty beyond a reasonable
doubt.  A judgment of acquittal is proper only if the State has failed to
put forth any evidence to substantiate a jury verdict.  
 
State v. Turner, 2003 VT
73, ¶ 7, 175 Vt. 595, 830 A.2d 122  (mem.) (quotations omitted).  
¶ 41.        
To establish defendant’s guilt of involuntary manslaughter, the State
needed to prove that “defendant engaged in a level of conduct that met the
criminal negligence standard and caused the victim’s death.”  State v.
Viens, 2009 VT 64, ¶ 21, 186 Vt. 138, 978 A.2d 37.  As we have
explained,
Criminal
negligence means something more than ordinary carelessness.  It means that
the State must prove that the defendant acted unaware of the risk of
death.  It must be of such a nature and degree that his failure to
perceive it considering the nature and purpose of his conduct and the
circumstances known to him involved a gross deviation from the standard of care
that a reasonable person would have observed.
 
Id. ¶ 20; see also State
v. Stanislaw, 153 Vt. 517, 525, 573 A.2d 286, 291 (1990).  
¶ 42.        
In this case, ample evidence supported the jury’s finding of criminal
negligence.  The State presented evidence that the targets at the range
set up at defendant’s home and under his supervision were oriented such that if
a shooter pointed the gun barrel three inches to the right of the target that
was forty-three yards away and just under an inch above the target, the shot
would hit the neighbor’s house.  A relatively small error in aim could
lead to catastrophic results.  The range had an inappropriate backstop
made up of low rocks, which would easily ricochet bullets; the few larger trees
and stumps on the property were inadequate to stop a bullet from leaving the
range; and there was no berm or hill behind the targets sufficient to stop
bullets.  Moreover, the targets were positioned at a higher elevation than
the shooting bench, making it less likely that bullets that missed the target
would hit the ground.  A certified hunter education instructor who had
worked for Vermont Department of Fish and Wildlife for thirty-two years
testified that the only gun that could be used safely in such a range was a
pellet gun or a BB gun.  Into this venue, defendant invited others, whom
he did not know to be good shooters, to shoot powerful rifles completely
unsuited to the setting.  
¶ 43.        
These dangers were easily ascertainable, and the jury could reasonably
conclude that defendant’s conduct constituted a gross deviation from the
standard of care that a reasonable person would have observed.  The
State’s hunter safety instructor testified in detail about the hunter safety
course that defendant had completed ten days before the shooting and testified
that an individual who had conscientiously completed the hunter education class
would have been aware of the risks that were presented by the range.  
¶ 44.        
Defendant himself acknowledged that he knew that one should determine
what lies beyond one’s target and make sure there is an adequate backstop when
hunting or target practicing; he knew that he should have been aware of the
potential for ricocheting bullets; he was aware that the line of fire was
oriented in the direction of the Reiss home; that he should have done more
“looking around” before setting up the range; that he had not consulted the
hunter safety guidebook to see if his range was a good idea; that he had
minimal experience with the more powerful rifles that his friends brought; that
he should have but did not ask about the caliber or velocity of the bullets in
those guns; that he did not know the shooting ability of two of the friends
that he had invited to shoot; and that he did not know if they or he would be
able to hit the targets consistently.  
¶ 45.        
Defendant realized that the SKS rifle was “a pretty powerful gun,” which
meant that it was capable of sending a bullet to a target at a very high energy
rate, and understood that if he missed the target and there was nothing to stop
it, the bullet would keep going for a very long way.  He also recognized
the importance of muzzle control and understood that if he moved the muzzle
even a little bit, the bullet could go significantly off-target.  Defendant
was concerned when his friend shot the SKS rifle, but the group nonetheless
continued to shoot this gun.  
¶ 46.        
While defendant did not intend to harm his neighbor, the jury could
reasonably conclude from the State’s evidence that defendant disregarded a
substantial risk of death and injury and that his failure to perceive this risk
involved a gross deviation from the standard of care observed by reasonable
people.  
¶ 47.        
As to causation, the State must prove that “defendant’s acts caused [the
victim’s] death in a natural and continuous sequence, unbroken by any efficient
intervening cause.  An efficient intervening cause would be an unexpected
independent force that broke the connection between the defendant’s acts and
the victim’s death.”  Viens, ¶ 21 n.5; see also State v. Jones,
2008 VT 67, ¶ 24, 184 Vt. 150, 955 A.2d 1190 (“[W]here a defendant’s
unlawful act is established in the chain of direct legal causation he is
criminally responsible for the course of events which naturally follow from the
act, unless the act of another breaks the chain of the original actor.”). 

¶ 48.        
Citing language from our opinion in State v. Yudichak, 151 Vt.
400, 403, 561 A.2d 407, 409 (1989), defendant argues that his conviction can
stand only if his conduct was the sole cause of the victim’s death, and
not merely a cause.  We have expressly rejected this interpretation
of our opinion in Yudichak, and we have reaffirmed that pursuant to the
above standard a defendant may be convicted of involuntary manslaughter for the
course of events which naturally follow from his or her actions even when the
actions were not the sole cause of the harm.  State v. Martin, 2007
VT 96, ¶ 40, 182 Vt. 377, 944 A.2d 867.  Accordingly, we have
affirmed an involuntary manslaughter conviction of a defendant who provided a
fifth of Bacardi 151 Rum to a thirteen year old who drank most of the bottle
before dying of alcohol poisoning, even though the decedent herself took actions
that contributed to her demise.  Stanislaw, 153 Vt. at 525, 573
A.2d at 291.  We have affirmed a conviction in a fatal
boating-while-intoxicated incident even though the instability of the boat may
have contributed to its capsize.  Martin, 2007 VT 96, ¶ 40. 
We have affirmed the manslaughter conviction of a defendant who knew the
driveway heater was malfunctioning and posed a risk of carbon monoxide
poisoning but did not inform the buyers of his home of that risk, even though
the faulty appliance contributed to the victims’ deaths.  State v.
Brooks, 163 Vt. 245, 252, 658 A.2d 22, 27 (1995).  
¶ 49.        
In this case, defendant’s set-up of his shooting range and his
invitation to others whose shooting capabilities were largely unknown to him
was criminally negligent because it created a serious risk of the very harm
that came to pass.  Although defendant may not have fired the fatal
bullet, his actions set in motion a natural and continuous sequence, unbroken
by any efficient intervening cause, culminating in the victim’s death. 
Neither the participation of other shooters at the range nor the errant firing
of a bullet constituted an entirely separate chain of events; their firing
high-powered rifles in the direction of the victim’s home was part and parcel
of the chain of events set in motion by defendant’s actions.  See Gallimore
v. Commonwealth, 436 S.E.2d 421, 425-26 (Va. 1993) (affirming manslaughter
conviction of woman who fabricated story about alleged kidnapping and urged
husband and brother of putative victim to get perpetrators, where ensuing
altercation and discharge of a gun, resulting in a death, were readily
foreseeable consequences of defendant’s criminal negligence).  For the
foregoing reasons, we conclude that sufficient evidence supported defendant’s
conviction.[3] 

Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Defendant argues that the curative instruction after the site visit was not
sufficiently immediate in time after the visit to avert the unfair
prejudice.  This argument fails to take into account that the trial court
cautioned the jury about the limited purpose of the view and the likely changes
in the locations of stumps and benches even before the jury view.


[2] 
To the extent that defendant frames his argument in terms of prosecutorial
misconduct as opposed to implied bias, our conclusion is the same.  In
voir dire, the juror acknowledged a past acquaintance with one of the
prosecuting attorneys.  Defendant did not follow up with any questions
about the extent of the acquaintance.  Had the record ultimately revealed
that the juror’s initial representations were inaccurate, or that the
prosecutor and juror did in fact have a relationship that would support a
challenge for cause, we would agree with defendant that the prosecutor had an
obligation to proactively correct or supplement the record following the
juror’s statements.  See, e.g., State v. Mathais, 1994 WL 116243,
at *10-13 (Ohio Ct. App. March 31, 1994) (holding that prosecutor should have
proactively disclosed his recent prior representation of one of jurors). 
We agree that the better course would have been for the prosecuting attorney to
avoid the incidental contact and conversation with the juror during the jury
view, but cannot conclude that the exchange triggered actual bias on the part
of the juror or otherwise prejudiced defendant’s rights.
 
Defendant raised his argument that the Vermont
Constitution imposes a uniquely high burden on Vermont courts to ensure the
impartiality of Vermont juries for the first time on appeal; accordingly, we
review only for plain error.  State v. Stell, 2007 VT 106, ¶ 10,
182 Vt. 368, 937 A.2d 649.  For the reasons noted above, we cannot
conclude that the court’s refusal to excuse the juror “seriously affected
substantial rights” and “had an unfair prejudicial impact on the jury’s
deliberations” in this case.  State v. Erwin, 2011 VT 41, ¶ 15, __
Vt. __, 26 A.3d 1.  


[3]
 Over a month after oral argument, defendant, as opposed to his counsel of
record, filed a letter reiterating some of the above arguments, and making a
number of other arguments not raised on appeal.  Insofar as defendant’s
letter can be construed as a supplemental brief, defendant did not seek leave
of the court to file such a brief, and we do not consider unsanctioned
arguments on appeal.  V.R.A.P. 28(c) (after a party files an initial brief
and a reply brief, “[n]o further briefs may be filed except with leave of
court”).  



