2008 VT 67


State v. Jones (2006-219)
 
2008 VT 67
 
[Filed 16-May-2008]
 
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, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 
 

2008 VT 67

 

No. 2006-219

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont,


 


Unit No 2, Chittenden Circuit


 


 


Robert P. Jones, Jr.


January Term, 2008


 


 


 


 


Michael
  S. Kupersmith, J.


 

Thomas Donovan, Jr., Chittenden County State’s Attorney, and
Pamela Hall Johnson, Deputy 
  State’s Attorney, Burlington, for Plaintiff-Appellee.
 
Allison N. Fulcher of Martin &
Associates, Barre, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
JOHNSON, J.   Defendant Robert Jones appeals his jury
convictions of second-degree murder and domestic assault of his eleven-year
partner, Sarah Genest.  Defendant claims that
the district court committed reversible error by: (1) allowing the State to
present prior-bad-act evidence at trial; (2) denying his motion for judgment of
acquittal based on the insufficiency of the evidence; (3) instructing the jury
in a manner that directed the verdict for the State on the murder charge; and
(4) failing to submit special jury verdict questions at defendant’s
request.  We affirm.
¶ 2.            
The evidence presented at trial was substantially as follows.  In
May 2003, defendant and Sarah Genest were living
together in a Burlington apartment with their two minor children.  On the
afternoon of May 4, 2003, Ms. Genest met a friend at
Pearl Street Beverage in Burlington, and thereafter they walked together to the
home of defendant’s mother, where defendant and the couple’s daughter were
eating dinner.  Defendant later drove Ms. Genest
and her friend home to the couple’s apartment, where the adults sat together
and drank beer.  A little before 10:00 p.m., Ms. Genest
and her friend went out to purchase more beer at a local store.  On the
way back from the store, they stopped at a bar, had a drink, and returned to
the couple’s home.
¶ 3.            
Shortly after they returned to the apartment, defendant began arguing
with Ms. Genest about her detour to the bar and
pushed her in the chest with both hands, knocking her to the ground.  The
friend helped Ms. Genest to her feet, but left soon
afterward, at approximately 10:30 p.m.  Ms. Genest’s
friend later testified that at the time she left the couple’s apartment, Ms. Genest was intoxicated but had not been in any fights,
other than being pushed by defendant, and showed no visible signs of
injury.  
¶ 4.            
The following day, around 2:00 p.m., defendant called his girlfriend,
Melissa Bolsta, and asked her to come over because he
was having difficulty waking Ms. Genest.  When
Ms. Bolsta arrived at the apartment, she found Ms. Genest lying in her bed with what appeared to be a black
eye and red marks on her upper chest and breathing that sounded raspy and gurgly.  Ms. Bolsta asked
defendant if he had hit Ms. Genest, and he admitted
to hitting her on the chest.  Defendant initially resisted Ms. Bolsta’s suggestion that they take the comatose Ms. Genest to the hospital, indicating concern over what
hospital personnel might think about the bruises evident on her body. 
Eventually, Ms. Bolsta persuaded defendant, and after
carrying Ms. Genest out to the car, they drove her to
Fletcher Allen Health Care at about 2:45 p.m.
¶ 5.            
Ms. Genest remained unconscious when they
arrived at the hospital, and defendant placed her in a wheel chair with the
assistance of the hospital security guard.  At the hospital, defendant
first communicated with an Emergency Department nurse about Ms. Genest’s condition.  He told the nurse that Ms. Genest had been in Montreal the night before, that she had
been in some kind of altercation, and that he could not wake her in the morning. 

¶ 6.            
The medical director of the Emergency Department examined Ms. Genest shortly after her arrival.  She found Ms. Genest in a comatose state, and noted several bruises on
her chest wall, her lower neck and face, and her legs.  The doctor’s
primary concern was to protect Ms. Genest’s airway,
and when medical personnel suctioned her airway, they found what appeared to be
stomach contents in her trachea.  According to the doctor, defendant told
her that Ms. Genest had been out with a friend the
night before, that she might have been in a fight or overdosed on Klonopin, and that she had vomited twice that
morning.  
¶ 7.            
A neurosurgeon also examined Ms. Genest in the
Emergency Department.  During the examination, he noticed bruising of
various ages on her head, chest, arms, and legs.  Defendant told him that
Ms. Genest had been out drinking with a friend the
night before, that they had some type of argument, and that he found her passed
out in the bathroom, at which point he put her to bed.  According to
defendant, Ms. Genest’s condition was drug or
alcohol-related and not related to trauma.  The neurosurgeon, however,
found the CAT scan results—showing that Ms. Genest
had a subdural hematoma, or
bleeding between the skull and brain—and the various bruises on her body
inconsistent with defendant’s story.  
¶ 8.            
Ms. Genest died at the hospital on May 8,
2003, after being removed from life support.  The medical examiner
determined that Ms. Genest had been beaten and that
the cause of death was blunt-impact injuries to her head.  He found that
Ms. Genest had five such injuries to the head that
were consistent with having been inflicted within seventy-two to ninety-six
hours of the autopsy.  He identified that she had twelve non-displaced
fractured ribs and suffered separate impact injuries on her face, chest, torso,
arms, and legs.  It was his opinion that Ms. Genest’s
injuries could not have been sustained from a fall because there were too many
bodily planes involved.  Both the medical examiner and the neurologist who
assisted him in examining Ms. Genest’s brain
concluded that blunt force to the head caused her brain to swell, which
compressed her brain stem and led to disrupted cardiac and respiratory
function, resulting in death. 
         
¶ 9.            
In June 2003, defendant was charged with the second-degree murder and
second-degree aggravated assault of Ms. Genest. 
In December 2004, the State gave notice of its intent to admit prior-bad-act
evidence at trial pursuant to Vermont Rule of Evidence 404(b), to show the
nature of defendant’s abusive relationship with Ms. Genest
and the absence of accident with respect to Ms. Genest’s
death.  Defendant moved to exclude the evidence, arguing that it was
inadmissible hearsay, that it violated the Confrontation Clause, and that it
was inadmissible under Rule 404(b) because it was not “signature”
evidence.  On September 8, 2005, the court held an evidentiary hearing on
the motion in limine to exclude the prior-bad-act
evidence, at which the State proferred ten witnesses
and played two 911 calls made by Ms. Genest that it
believed tended to establish a pattern of abuse by defendant against Ms. Genest.  The court granted, in part, defendant’s
motion to exclude some of the prior-bad-act evidence as inadmissible under
Rules 404(b) and 403 or as violative of the
Confrontation Clause.  For the remaining evidence proffered by the State,
the court denied defendant’s motion to exclude under Rules 404(b) and 403. 
¶ 10.        
On October 29, 2003, a jury convicted defendant of second-degree murder
and domestic assault.  Defendant waived his right to a jury trial on
whether he was a habitual offender, and stipulated to a 2001 conviction for
domestic assault and three prior felony convictions.  The court entered a
guilty verdict on the second-degree murder and felony domestic assault charges
and adjudicated defendant a habitual offender. 
¶ 11.        
After trial, defendant moved for judgment of acquittal, arguing that the
State failed to prove that defendant assaulted Ms. Genest
or that his actions caused her death or serious bodily injury.  Defendant
likewise filed a motion for a new trial, contending that the verdict was
against the weight of the evidence and that the court erred by: (1) admitting
evidence of defendant’s prior assaults on Ms. Genest;
(2) instructing the jury about the legal effect of Ms. Genest’s
vulnerability; and (3) denying defendant’s request for special verdict
questions.  The court denied both motions, and this appeal followed.
¶ 12.        
Defendant reasserts his previous arguments on appeal.  First, he
claims that the court committed reversible error by admitting evidence of his
prior assaults on Ms. Genest.  Next, he argues that
the court should have granted his motion for judgment of acquittal because the
State presented insufficient evidence to prove that he assaulted Ms. Genest or that the assault caused her death. 
Furthermore, defendant contends that the court’s jury instruction on the legal
effect of Ms. Genest’s vulnerability amounted to a
directed verdict and was reversible error.  Finally, he claims that the
court erred in declining to submit a special verdict form to the jury at
defendant’s request.
¶ 13.        
We begin with defendant’s claim that the trial court erred in admitting
evidence of his prior bad acts against Ms. Genest. 
Defendant contests the trial testimony of several witnesses to his prior abuse
of Ms. Genest, arguing that it was propensity
evidence and therefore violated Rule 404(b).  The following 404(b)
evidence was produced at trial.  Ms. Genest’s
sister-in-law testified to an incident in 1994 in which Ms. Genest
called her after defendant had allegedly beaten her.  When the
sister-in-law arrived on the scene, Ms. Genest was
crying and the side of her face was bruised from eyebrow to chin.  Ms. Genest’s brother testified that he confronted defendant
after this incident, and that defendant immediately apologized, said that he
did not know why he did it, and promised never to do it again.  A
Burlington police officer gave testimony that he was called to the scene of a
domestic disturbance at the couple’s home in January 1999, and that upon
arrival, he found Ms. Genest crying with a
golf-ball-sized lump over her eye.  A neighbor testified that in 1999 or
2000, she witnessed the couple fighting and later noticed that Ms. Genest had a black eye or bruises on her face.  Ms. Genest allegedly told her that this was nothing new. 
Finally, a longtime friend of Ms. Genest’s testified
to several instances in which she observed defendant acting violently toward
Ms. Genest.  On one occasion, at a barbecue at
the friend’s house, defendant grabbed Ms. Genest by
the throat and began choking her, apparently because he wanted her to leave the
party with him.  On another occasion, at the beach, defendant tried to
drag Ms. Genest to the car by her hair because she
said she was not ready to go when he wanted to leave.  
¶ 14.        
Under Rule 404(b), “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith.”  Nonetheless, such
evidence may be introduced if it is “relevant to some other legitimate issue in
the case, such as motive, plan or identity.”  State v. Lawton, 164
Vt. 179, 182, 667 A.2d 50, 54 (1995); see also V.R.E. 404(b).  Even if the
bad-act evidence is relevant to show something other than the defendant’s
propensity for criminality, however, it may be excluded under Rule 403 if the
danger of unfair prejudice to the defendant substantially outweighs its
probative value.  V.R.E. 403.  As with other evidentiary rulings, we
give deference to the trial court’s decision to admit bad-act evidence pursuant
to Rule 404(b), and review its decision only for abuse of discretion.  State
v. Anderson, 2005 VT 17, ¶ 7, 178 Vt. 467, 868 A.2d 716 (mem.).     
¶ 15.        
The trial court did not abuse its broad discretion under Rule 404(b) in
admitting evidence of defendant’s prior abuse of Ms. Genest.
 In its decision on the motion in limine, the
court allowed the testimony of the five witnesses under Rule 404(b) both to
provide context of the nature of the couple’s relationship and to rebut
defendant’s theory that Ms. Genest’s death was accidental. 
Defendant challenges the court’s reasoning, contending that the prior-assault
evidence was not needed to rebut a defense of accident because the defense did
not present such a theory at trial.  Whether or not defendant presented evidence
of Ms. Genest falling in the bathroom, possibly
hitting her head, and later vomiting in an effort to establish that her death
was accidental is of little consequence, however, because his prior abuse of
Ms. Genest was relevant to other issues in the
case.  See State v. Lafountain, 160 Vt.
313, 316, 628 A.2d 1243, 1246 (1993) (this Court may uphold a ruling on
different grounds than the trial court).  To convict defendant of
second-degree murder, the State had the burden of proving that he acted with
the requisite intent—wanton disregard for Ms. Genest’s
life—and thus, there is no doubt that defendant’s motive and intent were
relevant to the State’s case.  See State v Sexton, 2006 VT 55, ¶
14, 180 Vt. 34, 904 A.2d 1092 (stating that second-degree murder requires either
intent to kill or, at the very least, wanton disregard of the likelihood that
one’s actions will cause great bodily harm or death).  Where, as here,
defendant’s prior bad acts were perpetrated against the same victim, the
evidence serves essentially the same purpose as an admission of intent to harm
that particular victim, rather than establishing defendant’s general propensity
for violence.  Thus, defendant’s prior intense hostility toward Ms. Genest, often in response to minor inconveniences, was probative
evidence of defendant’s motive to harm Ms. Genest on
the night in question, and was not admitted solely to show defendant’s
propensity to act in conformity with a particular character trait.  See,
e.g., State v. Yoh, 2006 VT 49A, ¶ 18, 180 Vt.
317, 910 A.2d 853 (allowing evidence of prior incidents of domestic violence at
murder trial to demonstrate the defendant’s motive and intent under 404(b)); People
v. Illgen, 583 N.E.2d 515, 522-23 (Ill. 1991)
(holding that evidence of pattern of domestic abuse was probative of
defendant’s motive and mental state in first-degree murder case); State v.
Taylor, 689 N.W.2d 116, 128 (Iowa 2004) (stating that the defendant’s prior
acts of violence against his wife were relevant to his motive and intent in
breaking window and pulling wife out of vehicle).
¶ 16.        
Nevertheless, defendant contends that the danger of unfair prejudice
substantially outweighed the probative value of the prior-assault evidence, and
that it should therefore have been excluded under the Rule 403 balancing
test.  In its decision on the motion in limine,
the trial court determined that the evidence of defendant’s prior assaults on
Ms. Genest was indeed prejudicial to defendant, as is
any evidence presented by the State to prove defendant’s guilt.  It
reasoned, however, that the testimony of the five witnesses to the abuse was
not unduly prejudicial given the lack of direct evidence in the case.  Ms.
Genest’s friend testified that when she left the
couple’s home on the evening of May 4, Ms. Genest was
uninjured.  Ms. Genest was not seen again by
anyone other than defendant until the following afternoon, at which point she
had life-threatening injuries that ultimately led to her death a few days
later.  Because Ms. Genest and defendant were alone
during the critical period in which she sustained the deadly injuries, the
State’s case against defendant was largely circumstantial and thus, the
probative value of any evidence tending to show defendant’s hostility toward
Ms. Genest was high. 
¶ 17.        
Defendant challenges the court’s Rule 403 balancing, claiming that the
testimony of the five witnesses was unnecessary and unfairly prejudicial, given
that the nature of the relationship between defendant and Ms. Genest had already been established by other means. 
At trial, Ms. Bolsta testified that defendant told
her that he had hit Ms. Genest in the chest on the
night in question.  Furthermore, the parties entered into a stipulation,
allowing the State to present to the jury defendant’s 2002 conviction for
domestic assault on Ms. Genest.  Although
another court might have concluded that the prior assault evidence was
cumulative and therefore unfairly prejudicial, it was not untenable for the
court to conclude that evidence of defendant’s prior domestic assault
conviction and admission to hitting Ms. Genest once
in the chest was far less probative of defendant’s motive on the night in
question than the 404(b) evidence of defendant’s repeated, hostile treatment of
Ms. Genest throughout the course of their eleven-year
relationship, often in response to such minor provocations as Ms. Genest’s delay.  See State v. Shippee,
2003 VT 106, ¶ 13, 176 Vt. 542, 839 A.2d 566 (mem.)
(trial court has broad discretion in conducting Rule 403 balancing test, and we
will not overturn its decision unless “the court either completely withheld its
discretion or exercised it on grounds clearly untenable or unreasonable”).
  In addition, the court made efforts to ensure that the jury would
not misuse the 404(b) evidence by giving a limiting instruction after each of
the witnesses to the prior assaults testified, directing that they were not to
consider the evidence for propensity purposes.  As the trial court
concluded, the 404(b) evidence was highly probative given the circumstantial
nature of the State’s case and was not unfairly prejudicial, particularly in
light of the limiting instructions.  Thus, the trial court did not abuse
its discretion by allowing the five witnesses to testify about defendant’s
prior assaults on Ms. Genest.
¶ 18.        
Defendant next argues that the trial court erred in denying his motion
for judgment of acquittal.  Specifically, he claims that the State’s
evidence was insufficient to prove beyond a reasonable doubt that he committed
any act that resulted in Ms. Genest’s serious bodily
injury or death.  In determining the sufficiency of the evidence against
defendant, we consider “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.”  State v.
Perez, 2006 VT 53, ¶ 19, 180 Vt. 388, 912 A.2d 944 (quotation
omitted).  In a case based largely on circumstantial evidence, the jury
may draw reasonable inferences in determining whether the defendant committed
the acts charged.  State v. Baird, 2006 VT 86, ¶ 13, 180 Vt. 243,
908 A.2d 475.    In such a case, we must consider the evidence
as a whole in making our determination, even though each individual piece of
circumstantial evidence might otherwise be easily explained.  Id.
¶ 19.        
The trial court did not err in determining that the State’s evidence was
sufficient to convince the jury of defendant’s guilt beyond a reasonable
doubt.  To begin, both the medical examiner and the neurologist who
assisted him testified that Ms. Genest’s death was
caused by blunt force trauma to the head.  The medical examiner testified
that her multiple impact injuries and twelve fractured ribs could not have been
sustained from a single fall, and that the injuries were consistent with having
been inflicted within seventy-two to ninety-six hours of her death on May 8, as
was the subdural hematoma
to her brain.  
¶ 20.        
Furthermore, while the evidence was largely circumstantial, the
inference that defendant caused Ms. Genest’s injuries
was strong.  The State presented testimony from several witnesses who
observed that Ms. Genest was uninjured before she
returned home from the bar on the evening of May 4.  Ms. Genest’s friend, the last person besides defendant to see
Ms. Genest in an uninjured state, testified that
defendant pushed Ms. Genest in the chest just before
the friend left the couple’s apartment.  Even when it was clear that Ms. Genest had grave injuries, there was testimony that
defendant hesitated to take her to the hospital because he was concerned about
hospital personnel seeing the various bruises on her body.  The jury
further heard that, upon arrival at the hospital, defendant gave various
palpably false accounts of what happened to Ms. Genest—e.g.,
that she might have been in a fight in Montreal or overdosed on Klonopin.  In addition, when defendant was interviewed
by police the day after Ms. Genest was admitted to
the hospital, he lied to the officer and said that his roommate was present
when Ms. Genest allegedly fell in the bathroom, and
then when caught in a lie, amended his story to another falsehood, that Ms. Bolsta was present when Ms. Genest
purportedly fell.  Taken as a whole, this evidence fairly and reasonably
supported the jury’s finding of guilt beyond a reasonable doubt, and it was not
error for the trial court to deny defendant’s motion for judgment of
acquittal.  See id.
¶ 21.        
Notwithstanding the evidence against him, defendant argues that the jury
decision was based on mere conjecture and speculation by the State’s medical
witnesses.  He suggests that it was unreasonable for the jury to convict
based on that evidence, given that his own medical expert testified “with
reasonable medical certainty” that Ms. Genest died as
a result of intoxication, vomiting, aspirating vomit, and being unable to
protect her airway for a significant period of time.  Defendant’s argument
is unavailing.  It was well within the purview of the jury to reject
defendant’s expert testimony in favor of the State’s, and we will not
substitute our judgment for that of the trier of
fact.  See Perez, 2006 VT 53, ¶ 21.  Furthermore, our standard
of review of motions for judgment of acquittal requires us to exclude any
modifying evidence in considering whether the evidence presented by the State
fairly supported a finding of guilt beyond a reasonable doubt.  See State
v. Lemay, 2006 VT 76, ¶ 11, 180 Vt. 133, 908 A.2d 430.  Excluding
defendant’s modifying medical evidence here, there was ample evidence presented
by the State that defendant committed the acts alleged.
¶ 22.        
With respect to defendant’s next issue on appeal—whether the court
directed a verdict on the murder charge by instructing the jury on Ms. Genest’s vulnerability—the record is unclear as to whether
defendant properly preserved the issue.  During the charge conference,
defendant objected to the portion of the court’s instruction on causation that
read: “Any evidence that Ms. Genest may have been
more susceptible to death or serious bodily injury due to the ingestion of
alcohol or drugs is of no legal . . . significance on the element of
causation.”  After some back-and-forth between defense counsel, the
State’s attorney, and the court, it appears in the record that all parties
agreed to amend the instruction to the following: “if you find that Ms. Genest was more vulnerable to death or serious bodily
injury due to the prior ingestion of alcohol, you are not to consider it on the
element of causation.”  After the agreed-upon instruction was read to the
jury, however, the defense appeared to object, stating: “just renew the
[objection] about the causation . . . . I thought you were
going to emphasize the causation, you were going to highlight it .
. . and having given it, I’m concerned.”  Because the record is not
clear, we consider the merits of defendant’s argument.
¶ 23.        
Defendant argues that the vulnerability instruction was tantamount to
directing the verdict for the State because it precluded the jury from
considering his theory that Ms. Genest’s intoxication
caused her inability to protect her airway and led to the hypoxic ischemia that
resulted in her death.  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. Martin, 2007 VT 96, ¶ 39,
___ Vt. ___, 944 A.2d 867.  If the jury charge as a whole breathes the
true spirit and doctrine of the law, we will uphold it.  State v. Jackowski, 2006 VT 119, ¶ 4, 181 Vt. 73, 915 A.2d 767.
¶ 24.        
The court’s instructions on the murder charge accurately reflected the
law on the element of causation.  We have recently restated that “where
[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 that act, unless the act of another breaks the chain of causation
of the original negligent actor.”  Martin, 2007 VT 96, ¶
40.   In conformity with this legal principle, the court instructed
the jury that the State was required to prove that defendant’s “acts produced
[Ms.] Genest’s death in a natural and continuous
sequence, unbroken by any efficient intervening cause.”  Furthermore, the
charge directed that the jury would have to conclude that Ms. Genest’s life was ended “by means other than natural
causes, accident or suicide,” for it to convict defendant of second-degree
murder.  Finally, the jury was instructed that it could convict
defendant only if it found that Ms. Genest’s death
would not have occurred “but for” defendant’s physical assault on her. 
The instruction on vulnerability that defendant now challenges simply clarified
that a condition—e.g., intoxication—that makes a victim more vulnerable to harm
cannot be considered on the issue of causation if the jury finds beyond a
reasonable doubt that the defendant’s actions caused the victim’s injury. 
See State v. Dodge, 152 Vt. 503, 505-06, 567 A.2d 1143, 1144 (1989)
(holding that victim’s failure to wear seatbelt made him more vulnerable to
injury but was not an intervening cause absolving the defendant of negligent
and careless operation of a motor vehicle).  
¶ 25.        
Contrary to defendant’s assertion, the jury instruction in question did
not take the issue of causation away from the jury and would have been
consistent with a jury verdict of acquittal if the jury had believed
defendant’s theory that Ms. Genest’s death was caused
by complications from her alcohol consumption.  Looking at the jury
instructions as a whole, they were full and fair and correctly stated the law
with regard to the element of causation.  See State v. Swift, 2004
VT 8A, ¶ 12, 176 Vt. 299, 844 A.2d 802 (stating that “[a] defendant is entitled
to jury instructions that are full, fair, and correct on all issues, theories,
and claims presented by the evidence” (quotation omitted)).  
Defendant has failed to demonstrate either that the jury instructions were
erroneous with respect to the law or that he was prejudiced in any way by the
vulnerability instruction.  See id. (reversal required for
erroneous jury instruction only if the defendant demonstrates prejudice).
¶ 26.        
Finally, we briefly address defendant’s argument that the trial court
committed reversible error by denying his request to submit special verdict
questions to the jury.  Prior to closing argument, defendant moved the
court to allow him to submit a special verdict form to the jury that would
require it to answer the following questions: (1) “Was Sarah Genest physically assaulted by [defendant];” (2) “Did Sarah
Genest have a condition at the time of the assault
which rendered her more vulnerable to death from the assault;” and (3) “Did
Sarah Genest die as the result of the physical
assault?”  The court denied the request, concluding that the questions
were unnecessary because they were addressed by the proposed jury
instructions.  We agree with the court’s assertion that the jury
instructions adequately covered the element of causation on the murder charge,
and rendered defendant’s special verdict questions redundant.  In any
event, defendant concedes that criminal defendants do not have a right to have
special interrogatories submitted to the jury, and indeed that the practice is
disfavored, except where contemplated by statute.  See Reporter’s Notes, V.R.Cr.P. 31 (explaining that “there are no special
verdicts in criminal proceedings” however, “[o]ccasionally,
a statute may require a specific finding of the jury”); see also United
States v. Pforzheimer, 826 F.2d 200, 205 (2d Cir.
1987) (jury interrogatories are “generally disfavored” in criminal cases); State
v. Bock, 328 P.2d 1065, 1074 (Idaho 1958) (practice of requiring jury to
answer special questions should not be encouraged, except where specified by
statute); Arevalo v. State, 749 S.W.2d
278, 280 (Tex. App. 1988) (criminal defendants do not have right to have
special issues submitted to jury, except in capital cases).  We discern no
error on the part of the trial court in declining to submit a special verdict
form to the jury.
Affirmed.
              
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

