2011 VT 94


State v. Herrick (2010-252)
 
2011 VT 94
 
[Filed 12-Aug-2011]
 
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.
 
 

2011 VT 94

 

No. 2010-252

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Criminal Division


 


 


Trevor Herrick


May Term, 2011


 


 


 


 


Thomas
  A. Zonay, J.


 

Marc D. Brierre, Rutland County State’s Attorney, Rutland,
for Plaintiff-Appellee.
 
William A. Nelson, Middlebury, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
JOHNSON, J.  Defendant appeals from a conviction, after jury
trial, of second-degree murder and a sentence of imprisonment for twenty-two
years to life.  Defendant, who was romantically involved with the victim’s
wife, fatally stabbed the victim following a verbal and physical altercation. 
Just as the jury entered the courtroom to be sworn, three people walked in
wearing t-shirts memorializing the victim.  Following general and
individual voir dire, defendant moved for mistrial, which the trial court
denied.  On appeal, defendant argues: (1) the trial court’s failure to
instruct the jury to consider defendant’s individual characteristics in
connection with its “adequate provocation” charge for the mitigating defense of
passion-provocation manslaughter was plain error, and (2) the court erred in
denying defendant’s motion for mistrial when the jury was exposed to
potentially prejudicial extraneous influence and the court’s post-voir dire
findings did not eliminate the possibility that jurors were in fact
influenced.  We affirm.            

¶ 2.            
Defendant had been involved in a romantic relationship with the victim’s
wife for about four or five years.  On the morning of April 20, 2009,
defendant received a message with a telephone number.  When he called the
number, he reached the victim, who told defendant to meet him at 2:35 p.m. that
afternoon in the parking lot of a Rutland shopping mall.
¶ 3.            
Defendant got a knife with a three-and-one-half inch blade and a pistol
from his home before heading to the designated meeting spot.  When he
arrived, the victim was already there.  The victim told defendant he just
wanted to talk to him—he wanted to know how defendant felt about his
wife.  When defendant replied that he had “feelings” for her but was not
going to explain himself or apologize, the victim began calling defendant names
and telling him he was immature.  In fact, defendant was thirty-five years
old, while he estimated that the victim was about
fifty years old.  
¶ 4.            
Both men yelled at each other angrily.  The victim got in his truck
but then jumped out again, coming close to defendant, who was near the door of
his own truck.  They continued to yell at each other.  Defendant
pointed his finger at the victim’s face but did not touch him.  The victim
pushed defendant’s left shoulder “enough to toss [him] back.”  Defendant,
who believed “nobody [had] the right to do that to [him],” drew his knife from
its sheath and stabbed the victim in the back.  The victim stepped back
and then said, “I’m going to kill you,” coming at defendant again.  Defendant
stabbed the victim a second time.  
¶ 5.            
Defendant put the knife down in the truck, grabbed his cell phone, and
called 911.  Two people came to ask if everything was all right, and
defendant told them that he had stabbed the victim in an altercation.  The
victim was taken to the hospital, where he was pronounced dead.  The
medical examiner concluded that the victim died as a result of the stab wounds,
one of which pierced his aorta.  Defendant gave a full confession to the
police.  He was charged with murder in the second degree.  
¶ 6.            
Just as the jury entered the courtroom for the first time on the first
day of trial, three people walked into the courtroom wearing green shirts bearing
the statement “In Loving Memory of [Victim].”  The court immediately sent
the jury out again.  The court and counsel then recited what had happened
for the record.  After ordering the three individuals not to display the
shirts while in the courtroom, the court called the jurors back in.  
¶ 7.            
The court asked the jurors if anyone had seen or observed anything that
could affect his or her ability to sit fairly and impartially in the
case.  All the jurors responded that they had not.  The State asked
the jury if anything else that they had seen or heard or had contact with had
“influenced [their] ability to be fair and impartial to both sides.”  All
answered no.  Defense counsel then asked the jury directly if any member
had observed the gallery when they walked in to take their seats.  Three
jurors raised their hands.
¶ 8.            
At counsel’s request, the court agreed to segregated voir dire of the
three jurors who indicated that they had seen the gallery.  The first
juror questioned confirmed that she had noticed three women wearing green
t-shirts with the last name of the victim on them but reported that what she
had seen would not affect her ability to be fair and impartial.  The
second juror stated that she had noticed shirts with the last name of the
victim.  She believed the shirts were purple.  She promised that what
she had seen would not affect her ability to be a fair and impartial
juror.  When asked whether she had shared her observations with the other
jurors, she remarked that “all [the jurors] were kind of mentioning it” and
that “[o]ther people had noticed it, too, but didn’t think anything of
it.”  She clarified that while it was mentioned, the jurors had not
discussed it.  The third juror questioned reported that he had not seen
anything—he had not intended to raise his hand.
¶ 9.            
Based on the second juror’s statements, defense counsel requested
individual voir dire of the other eleven panel members, which the court
permitted.  Six of these had noticed individuals wearing green t-shirts in
the gallery.  Only one juror reported reading any of the writing on the
green shirts.  None of the jurors indicated that their impartiality had
been affected by the shirts, if they had seen them, or by any comments about
the situation.
¶ 10.         Defense
counsel moved for a mistrial, citing the fact that many jurors who had seen the
green shirts had not raised their hands initially, the possibility that they
had done so intentionally, and the discrepancy between the second juror’s
recollection that everyone mentioned the shirts and what the subsequent jurors
reported.  The court denied the motion on the record.  It emphasized
that they had done individual voir dire of each of the jurors, and all the
jurors had said that nothing they might have seen, if they had seen anything,
would influence, bias, or otherwise affect their ability to serve as fair and
impartial jurors.  The court gave a preliminary limiting instruction to
the jury, explaining that it must decide the facts based on the evidence
presented at trial and that observations of matters
within or outside the courtroom are not evidence.
¶ 11.         During
trial, defendant raised a mitigation defense of passion-provocation
manslaughter.  The court instructed the jury accordingly.  Defendant
did not object to the court’s jury charge regarding adequate provocation
mitigating the second-degree murder to voluntary manslaughter.  The jury
convicted defendant of second-degree murder, and he was sentenced to a term of twenty-two
years to life.  This appeal is automatic pursuant to Vermont Rule of
Appellate Procedure 3(b)(2).   
¶ 12.         We
first address defendant’s second argument: that the court erred when it denied
defendant’s motion for mistrial after the jury was exposed to a potentially
prejudicial extraneous influence and that the court’s findings following voir
dire did not eliminate the possibility that jurors were in fact
influenced.  Defendant relies on the discrepancy between the comment of
the second juror questioned that “all [the jurors] were kind of mentioning it”
and the assurances from jurors during the individual voir dire that they had
not discussed anything regarding the t-shirts.  While we agree that
defendant, like all criminal defendants, has a constitutional right to trial by
an impartial jury, U.S. Const. amend. VI; Vt. Const. ch. I, art. 10; see also State v. Sharrow,
2008 VT 24, ¶ 6, 183 Vt. 306, 949 A.2d 428; State v. Woodard, 134 Vt.
154, 158, 353 A.2d 321, 323-24 (1976) (reiterating defendant’s right to jury
free and untainted by any suspicion of extraneous influences), a motion for
mistrial was not technically correct in these circumstances because the jury
had not yet been impaneled.  Cf. State v. Corey,
151 Vt. 325, 330, 561 A.2d 87, 89 (1989) (stating that in trial by jury
jeopardy attaches when jury is impaneled and sworn).  Defendant
should have filed challenges to individual jurors for cause.  See
V.R.Cr.P. 24(b) (“Challenges for cause of individual prospective jurors may be
made at any time prior to the impanelment of the jury.”).   This
makes no difference, however, to our decision to uphold the trial court. 
 
¶ 13.         Here,
the trial court concluded that the irregularity had no effect on the jury and
denied defendant’s motion for mistrial.  The proponent of a motion for
mistrial must show that an irregularity—anything creating any suspicion of
extraneous influences—was capable of influencing jury deliberations.  State v. Schwanda, 146 Vt. 230, 232, 499 A.2d 779, 781
(1985).  If an irregularity is shown, to avoid a mistrial, the
opposing party must show that the irregularity in fact had no effect on the
jury.  Id. at 232, 499 A.2d at 781-82. 

¶ 14.         The
trial court conducted both general and individual voir dire of the jury to determine
whether or not the t-shirts had in fact created bias among the jurors. 
See State v. FitzGerald, 165 Vt. 343, 350, 683 A.2d 10, 15 (1996)
(affirming trial court’s voir dire of jury to create basis for reviewing
whether in fact prejudice had been created following irregularity). 
Following voir dire of the three jurors who indicated that they had seen
something in the gallery, the trial court conducted individual voir dire at
defendant’s request with both defense counsel and counsel for the State present. 
Overall, only three jurors had read the writing on the shirts, and each
affirmed that it would have no impact on their impartiality as jurors. 
The four jurors who had seen the three green shirts but had not read anything
on them also confirmed that they could remain impartial and unbiased. 
Based upon its exchange with each juror, the trial court determined that no
juror had in fact been influenced by the shirts and that each juror remained
unbiased.  It credited the jurors’ assurances that they would remain fair
and impartial.  On the basis of these findings, it concluded that the jury
was not in fact influenced by the shirts.  See State v. Onorato,
142 Vt. 99, 107, 453 A.2d 393, 397 (1982) (explaining that jury’s assurances of
impartiality to court can be rebutted only where defendant demonstrates the
actual existence of bias in the minds of the jurors).  We defer to the
trial court’s conclusion, which shows no abuse of discretion.  State v.
Desautels, 2006 VT 84, ¶ 18, 180 Vt. 189, 908 A.2d 463 (explaining that
Court defers to trial court’s discretion on motion for mistrial); State v.
Messier, 2005 VT 98, ¶ 15, 178 Vt. 412, 885 A.2d 1193 (stating that in
reviewing decisions on motion for mistrial, we find error only where trial
court’s discretion was either totally withheld or exercised on clearly
untenable or unreasonable grounds); see also Schwanda, 146 Vt. at 232,
499 A.2d at 781 (recognizing that motions for mistrial should not be granted
absent showing of prejudice).         
¶ 15.         Even
if defendant had filed the proper challenges to certain jurors for cause, the
result is the same.  In denying defendant’s motion for mistrial, the trial
court concluded that the State met its burden: demonstrating that the t-shirts
did not in fact influence the jury, who did not demonstrate bias. 
Therefore, defendant’s right to an impartial jury, no matter what procedural
avenue he chose to address the demonstration, was properly protected by the
trial court.  The substantive findings underlying the trial court’s denial
of the mistrial apply with equal force to any consideration of a challenge for
individual bias.  We note, however, that challenges for cause would have
placed the burden on defendant to show juror bias, in contrast to the motion for
mistrial, which merely required defendant to show that the t-shirts were
capable of influencing jury deliberations.    
¶ 16.         Had
he challenged the jurors for cause, defendant could not have carried his burden
of showing that they demonstrated fixed bias.[*]  Sharrow, 2008 VT 24, ¶ 7
(stating that courts must sustain party’s challenge for cause where prospective
juror demonstrates fixed bias).  A potential juror has a fixed bias when,
through his or her answers to questions posed on voir dire, the prospective
juror demonstrates a state of mind inconsistent with deciding the case
fairly.  Id. ¶ 8.  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.  Id. ¶ 9.  
¶ 17.         The
trial court’s determination that the jurors were not in fact influenced by the
shirts and remained impartial certainly satisfies our standard for denying a
fixed bias challenge for cause: the court effectively concluded that the
potential jurors did not demonstrate a state of mind inconsistent with deciding
the case fairly.  It made this decision based on its individual voir dire
of the prospective jurors, none of whom stated that he or she would be unable
to remain impartial.  The trial court is in a unique position to evaluate
juror bias, and we defer to its conclusions.  Id.
¶ 11.  We have said that “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.”  Id. (quotation omitted).  On the
basis of the record, we have no reason to disturb the trial court’s ruling in
this case, which was well within its discretion.
¶ 18.         Defendant
also argues that the trial court’s failure to instruct the jury to consider
defendant’s individual characteristics in connection with its “adequate
provocation” charge for the mitigating defense of passion-provocation
manslaughter was plain error.  Four factors guide our plain error
analysis: (1) there must be an error; (2) the error must be obvious; (3) the
error must affect substantial rights and result in prejudice to the defendant;
and (4) we must correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.  State v.
Rounds, 2011 VT 39, ¶ 31, ___ Vt. ___, 22 A.3d 477. 
When reviewing possible error in a jury instruction, we examine the
instructions in light of the record evidence as a whole and determine if any
error would result in a miscarriage of justice.  State v. Lambert,
2003 VT 28, ¶ 14, 175 Vt. 275, 830 A.2d 9. 
Moreover, we review the instructions in their entirety.  If the charge as
a whole is not misleading, there is no plain error.  State
v. Streich, 163 Vt. 331, 352-53, 658 A.2d 38, 53 (1995).  This
is a very high bar—we find plain error only in rare and extraordinary cases. 
State v. Erwin, 2011 VT 41, ¶ 14, ___ Vt. ___, ___ A.3d ___.  We
conclude that the trial court committed no such error here.  
¶ 19.         The
court instructed the jury: 
  You may find
that the degree of the crime is reduced from second degree murder to voluntary
manslaughter if [defendant’s] mental state was influenced by sudden passion or
adequate provocation that would cause a reasonable person to lose
self-control. . . . “Adequate provocation” refers to the
degree of provocation that would cause a reasonable person to lose self-control
and to act without thinking. . . . Any person who is
assaulted with violence or with an act of extreme insult may be provoked to a
sudden impulsive anger which cannot be resisted until the person cools
down. . . . If this person attacks his or her assailant and
causes death, the killing may be found to be the result of anger
. . . . If [defendant] was adequately provoked but did
not have enough time to cool down, and in fact did not
cool down, then [defendant’s] inability to cool down within that time was
reasonable under the circumstances.  If there was provocation . . . but
enough time passed between the provocation and the actions allegedly taken by
[defendant] to allow a reasonable person to cool down, then the acts cannot be
said to have resulted from . . . adequate
provocation.         
 
Contrary to defendant’s claim,
“basic fairness” does not require us to conclude that the trial court committed
plain error by not specifically instructing the jury to assess the reasonableness
of defendant’s provocation with regard to his individual characteristics. 
Nor do the other cases cited by defendant support a conclusion that the trial
court committed plain error with its adequate provocation instruction. 
Indeed, the trial court’s instructions were in keeping with the standard we set
forth in State v. Williams, 2010 VT 83, ¶ 10, ___ Vt. ___, 8 A.3d 1053,
for mitigating second-degree murder to voluntary manslaughter based on adequate
provocation.  In Williams, we explained that “the test is not only
whether an individual defendant was sufficiently provoked into violent action,
but whether a reasonable person in his or her position would have been so
provoked.”  2010 VT 83, ¶ 10.  To establish
provocation, the facts must show: “(1) adequate provocation; (2) inadequate
time to regain self-control or ‘cool off’; (3) actual provocation; and (4)
actual failure to ‘cool off.’ ”  Id.
(quotation omitted).  The trial court here clearly charged the jury to
consider these factors in the context of all the evidence presented at
trial.  It stated that “ ‘adequate provocation’
refers to the degree of provocation that would cause a reasonable person to
lose self-control and act without thinking.”  The court went on to
explain: “Any person who is assaulted with violence or with an act of extreme
insult may be provoked to a sudden impulsive anger which cannot be resisted
until the person cools down. . . . If this person attacks
his or her assaulter and causes death, the killing may be found to be the
result of anger . . . . If [defendant] was adequately provoked but did not have
enough time to cool down, and in fact did not cool
down, then [defendant’s] inability to cool down within that time was reasonable
under the circumstances.”  These instructions, which track our case law on
adequate provocation, are not plain error.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 







[*] 
Courts must also sustain a challenge for cause where the law infers that a
prospective juror is biased.  Sharrow, 2008 VT
24, ¶ 7.  Defendant here was concerned about potential bias
stemming from jurors viewing the t-shirts.  Thus, inferred bias—bias
implied when a prospective juror has such a close relationship with a
participant in the trial that the potential juror is presumed unable to be
impartial as a matter of law—is not at issue.  See id. ¶ 14.
  



