State v. Bacon

• Decision Date: 17 February 1995
• Docket Number: No. 92-534,92-534
• Parties: STATE of Vermont v. Christopher BACON.
• Court: Vermont Supreme Court

Page 54

658 A.2d 54

163 Vt. 279

STATE of Vermont v. Christopher BACON.

No. 92-534.

Supreme Court of Vermont.

Feb. 17, 1995.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, and Dan M. Davis, Windham County State's Atty., and Karen Carroll, Deputy State's Atty., Brattleboro, for plaintiff-appellee.

Robert R. Bent of Zuccaro, Willis & Bent, St. Johnsbury, for defendant-appellant.

Robert Appel, Defender Gen., Montpelier, for amicus curiae Office of Defender Gen.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

Defendant Christopher Bacon appeals his conviction of being an accessory to the murder of Robin Colson, committed during a burglary of her residence in Newfane, as well as seventeen other convictions associated with the murder. As a result of the felony-murder conviction, he was sentenced to life imprisonment without parole. Defendant claims error in the jury instructions; he also contends that he was denied effective assistance of counsel, and that his confession was involuntary and was taken in violation of his Miranda rights. We reject defendant's ineffective-assistance-of-counsel and Miranda arguments, but reverse his murder conviction because of error in the instructions; the other seventeen convictions are affirmed.

I.

On April 8, 1991, defendant and Charles Gundlah, both inmates at the Woodstock Correctional Facility, escaped together from a correctional work crew. The men made their way to Newfane, where they broke into unoccupied seasonal camps over the next few days and found food and lodging. Following his arrest, defendant related the circumstances surrounding Colson's death to police in a tape-recorded statement that was presented as evidence at his trial. The statement provided the following version of how the murder occurred.

In one camp they had broken into, the men found and read a neighborhood watch directory, which indicated that Colson lived alone in the area year-round. They then formulated a plan to steal Colson's car. The plan contemplated that defendant would enter the house and brandish a metal bar in order to intimidate Colson. On April 12, the men went to Colson's house, Gundlah carrying a knife and defendant the metal bar.

After arriving at the house, however, defendant became skittish over the robbery. Gundlah reacted by exchanging the knife for the metal bar defendant was carrying. According to defendant, Gundlah then went into the house and closed the front door. When defendant entered the house a few moments later, he saw Gundlah strike Colson on the head with the bar, and then, when Colson was on the floor, place the bar over her throat and stand on it. At Gundlah's direction, defendant closed off Colson's dogs in another room. Colson made some noise and Gundlah urged defendant to stab her. When defendant declined, Gundlah grabbed the knife from his hands and stabbed Colson to death. Thereupon, the men stole money from Colson's purse and cleaned up blood stains. They later stole an ATV from a nearby camp to transport the body into the woods, where they dug a grave. After disposing of the body, they returned to Colson's house and took her car.

The two men drove Colson's car to Massachusetts. After abandoning the car, they returned to Vermont several days later with defendant's former girlfriend, April Coldwell. Defendant and Gundlah were arrested in Rutland when a police officer was summoned to assist Coldwell after she locked her keys in her car.

II.

Claiming he harbored no murderous intent, defendant argues that the court erred by instructing the jury that he could be convicted based solely upon Gundlah's murderous intent.

A.

At the outset, we note that defendant's objection to the intent instruction was not properly preserved because it was not specifically renewed after the charge. See V.R.Cr.P. 30 (to preserve claim of error, party must object "before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection"); see State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) (objection following instructions is necessary to preserve issue for appeal). The State has not argued that defendant failed to make a proper objection to the instruction. This is not surprising, considering that the objection to the charge briefed by defendant on appeal (1) is precisely the same objection that he repeatedly raised throughout pretrial hearings, including the charge conference, and (2) was the focus and the heart of his principal defense at trial--that Gundlah killed Colson and that defendant did not intend to harm her. Further, although defendant failed to restate his objection to the intent instruction before the jury retired, the court indicated at a short bench conference immediately following the charge that it was preserving "all prior objections to the jury instructions."

In an opinion issued two weeks before the present case was given to the jury, we ruled in a similar situation that an objection raised before the jury charge would be considered preserved, but cautioned that the trial court's advice was contrary to Rule 30 and that objections should be renewed on the record after the charge is given to the jury. See State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992). Here, in light of defendant's repeated specific objection to the challenged instruction, the trial court's statement that all objections would be preserved, and the temporal proximity of this case to Wheelock, fairness dictates that we consider preserved defendant's objection to the charge. Notwithstanding Wheelock, we would be reluctant to affirm defendant's murder conviction upon concluding that the instruction was erroneous; as noted, the challenged instruction went to the heart of the defense in this case and, thus, would have to be considered exceedingly prejudicial. See Pelican, 160 Vt. at 538-39, 632 A.2d at 26 (plain error doctrine); cf. State v. Percy, 158 Vt. 410, 418, 612 A.2d 1119, 1125 (1992) (erroneous instruction allowing conviction of kidnapping based on constructive knowledge of confinement was not plain error where there was no serious dispute over whether defendant had intended to confine victim).

The dissent states that we are acting inconsistently by reviewing defendant's argument as preserved because in Pelican we rejected an identical request for fairness even though the trial in that case preceded our decision in Wheelock. We disagree. In Wheelock, we cautioned that the trial court's preservation of all prior objections was contrary to Rule 30, but we did not hold that in the future counsel could not rely on such advice to preserve objections to the charge. Further, the trial court in Pelican did not preserve all prior objections, as was done in this case. In Pelican, the defendant failed to renew his objection after the charge was given. On appeal, he argued that his objection should be considered preserved because Wheelock was decided after the trial in that case. We pointed out that Vermont law had always required an objection after the charge, Pelican, 160 Vt. at 538, 632 A.2d at 26, but said nothing about preservation of objections in cases where the trial court informed the parties that all objections would be preserved. In short, nothing we said in Pelican contradicts what we are doing here. We now state, however, that in the future parties may not rely on the trial court's advice that all objections raised at the charge conference will be preserved.

B.

We now return to the substance of defendant's argument. Defendant challenges the following portions of the jury charge relating to accomplice liability and felony murder:

A person is liable for the acts of his accomplice when two or more persons combine under a common understanding, and with a common purpose, to do an illegal act. Each of those persons is held criminally responsible for the acts of each and all who participate in the execution of the unlawful design. The prosecution must prove that the illegal common purpose existed and that one of the participants in the illegal plan committed the murder of Robin Colson during the alleged attempt or perpetration of the illegal plan to burglarize her dwelling. The defendant is liable for the acts of his accomplice, Charles Gundlah, even if you find that Gundlah departed from the illegal plan which they had previously made so long as Gundlah's acts were incidental to the execution of or as a natural and probable consequence of their original plan, and in furtherance of their alleged common purpose.

To find a common plan of the defendant and Mr. Gundlah to break into Robin Colson's home, overcome any resistance met, and to commit a larceny, such plan must be proved beyond a reasonable doubt. The mere presence of the defendant at the scene is not enough, unless it is also proved beyond a reasonable doubt that the defendant procured or incited or encouraged Mr. Gundlah in the performance of the plan.

For the State to prove the defendant guilty, you must also find beyond a reasonable doubt that he participated in that illegal common plan, and that he would render assistance to Charles Gundlah if that became necessary. The common plan may be ... proved by an express agreement between the defendant and Charles Gundlah, or by circumstantial evidence of an implied understanding, or both.

....

The State must also prove beyond a reasonable doubt that the defendant or Charles Gundlah as part of their common plan, or both of them are the person or persons who, in fact, caused the death of Robin Colson.

The term willful as it is used here requires the State to prove that the killing of Robin Colson was done not by accident, but with intent to kill. Willful means intentional. In other words, you must find that the defendant or Mr. Gundlah or both of them as part of or incident to the alleged illegal plan, intended to kill ...