State v. Billado

• Citation: 141 Vt. 175,446 A.2d 778
• Decision Date: 06 April 1982
• Docket Number: No. 331-80,331-80
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Carl Joseph BILLADO, III.

Page 778

446 A.2d 778

141 Vt. 175

STATE of Vermont v. Carl Joseph BILLADO, III.

No. 331-80.

Supreme Court of Vermont.

April 6, 1982.

John J. Easton, Jr., Atty. Gen., Edwin L. Hobson, Jr., and Susan R. Harritt, Asst. Attys. Gen., and Jane Hart Marter, Law Clerk, Montpelier, on the brief, for plaintiff.

Andrew B. Crane, Defender Gen., William A. Nelson, Appellate Defender, and Nancy E. Kaufman, Montpelier, for defendant.

Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

BILLINGS, Justice.

Defendant appeals a conviction after jury trial of armed robbery, 13 V.S.A. § 608(b), in the District Court of Vermont, Unit No. 2, Chittenden Circuit.

The defendant together with three other masked men, two of whom carried sawed-off shotguns, robbed five card players at the Odd Fellows Lodge in Burlington, on July 9, 1979. Subsequent to the robbery the defendant fled Burlington and did not return until March 1980. At trial defendant did not contest his presence at the robbery but did contest his sanity at the time of the events. He claimed he did not have the capacity to form the specific intent required to commit armed robbery because prior to the robbery he had unknowingly ingested phencyclidine, a drug commonly known as angel dust or PCP.

On appeal the defendant raises five issues. They will be taken up in the order presented.

I.

The first issue is whether the defendant's right to a fair trial was denied by the cumulative effect of prosecutorial misconduct. Defendant cites four separate instances of alleged misconduct.

A.

The defendant first claims that the prosecution improperly elicited testimony concerning his drug habit and used it improperly during closing arguments.

The defendant's defense was that he lacked the requisite intent to commit armed robbery because he was temporarily insane due to his ingestion of a controlled drug. The defendant claims he took phencyclidine (PCP) while under the impression it was cocaine. According to the defense theory PCP has different effects than cocaine, which effects the defendant was not anticipating, and which made him incapable of conforming his conduct to the law.

Defendant testified to a history of drug abuse which culminated in the robbery. To buttress his explanation of events and his allegedly innocent reason for fleeing, he further testified that when he first left Burlington after the robbery he "kicked" his drug habit: "I haven't done any drugs since this robbery."

Later in the trial and on direct examination, the defense psychiatrist testified that the defendant was suffering from organic delirium brought on by ingesting PCP the night of the robbery. On cross-examination the psychiatrist admitted that his opinion was based entirely on what the defendant told him. He further admitted, in contradiction to what the defendant testified, that the defendant had told him that during the ten months in which the defendant was hiding from the police he continued to take drugs. The defense did not clarify this apparent contradiction when it recalled the defendant in rebuttal.

In its closing argument the State referred to the inconsistencies between what the defendant told the jury and what he told the defense psychiatrist:

And Mr. Billado has already proven to you that he can lie, because he lied to Doctor Payson. Remember Doctor Payson's testimony was that it was not his impression that Mr. Billado had kicked the drug habit. You remember that testimony Mr. Billado gave, how he said he was so shook up when he realized what had happened here and that he somehow had been involved in this robbery, and he didn't remember, and all of that, and that he kicked the habit. Ask yourself what a drug user means when he says he kicked the habit. Does it mean kick the habit or does it mean I shot up for a few days and then I went off and then went back on? What impression did he leave Doctor Payson with after more than three hours of interview? Doctor Payson had some very strong opinions here based on what the defendant told him. Unfortunately, he left out a few details.

At the conclusion of closing arguments defense counsel objected to this line of argument, but he did not move to strike the argument or ask for a curative instruction.

On appeal the defendant claims that it was error for the prosecutor, in cross-examining the defense psychiatrist, to impeach defendant's testimony regarding his post-flight drug use without first affording him an opportunity to explain his alleged inconsistent statements and then to use this improperly admitted impeaching testimony in summation as proof that he was a liar.

We do not agree with this assertion. The defense psychiatrist's testimony was properly admitted. The defendant confuses the rule that a voluntary statement by a party is admissible for any relevant purpose with the rule on impeaching a nonparty witness.

A nonparty witness should be given an opportunity to explain a prior inconsistent statement before it is used. State v. Dragon, 128 Vt. 568, 570, 268 A.2d 913, 914 (1970). A different rule holds for a party, however, whether or not he is a witness.

There is general agreement that the prosecution may introduce in a criminal trial any voluntary and relevant out-of-court statement of the defendant. McCormick on Evidence § 145 (2d ed. 1972). Here there is no question of voluntariness and the statement is clearly relevant. The psychiatrist based his opinion entirely on what the defendant told him. If what the defendant told him was not accurate, then the psychiatrist's opinion loses its reliability. Therefore it was proper for the prosecution to examine the reliability of the defendant's statements to the psychiatrist.

As to the prosecution's use of the inconsistent statements in closing argument, this was not error. "It is the general rule that counsel may recount and comment on evidence properly admitted at trial, that he may draw legitimate inferences from the record, and that he may reflect unfavorably on the defendant so long as the remarks are based on properly admitted evidence." State v. Blakeney, 137 Vt. 495, 504, 408 A.2d 636, 642 (1979). The State's comments in closing argument were based on evidence which, as we held above, was properly admitted. No prejudice resulted from the State's assertion that the defendant was a liar as that conclusion could properly be drawn from the conflicting testimony. The defendant has failed to meet his burden of showing improper prejudice. State v. Lapham, 135 Vt. 393, 407, 377 A.2d 249, 257 (1977).

B.

The second instance of misconduct cited by the defendant is that the prosecutor improperly injected the defendant's character into the proceedings.

In closing arguments the prosecutor characterized the robbery as "professional" and made the comment that "[p]eople like Billado take advantage of the surprise and fear and shock [of their victims]." These comments by the State were not objected to.

It is well established that this Court will not, even in criminal cases, consider questions not raised in the court below unless the error is a glaring error so grave and serious that it strikes at the heart of a defendant's constitutional rights. State v. Kasper, 137 Vt. 184, 190-91, 404 A.2d 85, 89 (1979). There is no such glaring error here. Also, there was testimony by the victims that the robbery was professional and that they were surprised, afraid, and shocked. Thus, the prosecutor's comments were based on the testimony and were permissible. State v. Blakeney, supra, 137 Vt. at 504, 408 A.2d at 642.

C.

The third instance of misconduct cited by the defendant is that the state's attorney improperly elicited testimony from the defense psychiatrist regarding the general practices of defendants who plead insanity and then used this testimony in summation as evidence that this defendant concocted his defense.

The prosecutor cross-examined the defense psychiatrist as to whether "people that are charged with crimes sometimes make self-serving statements to examining psychiatrists." The doctor answered in the affirmative. No objection was made by the defense to this line of questioning. Without an objection below, the admission of this evidence cannot be challenged on appeal. State v. Kasper, supra, 137 Vt. at 204-05, 404 A.2d at 97.

The admission or exclusion of this evidence, however, is not crucial to the remainder of the issue argued by the defendant and which was properly raised below by objection to the closing argument. Essentially the defendant claims that the prosecutor's argument, that the defendant fabricated his insanity defense, is expressly prohibited by State v. Lapham, supra, 135 Vt. at 407, 377 A.2d at 257. We disagree. The defendant has misconstrued the holding in that case.

There is a significant factual difference between this case and Lapham. In Lapham there were two essential ingredients which made the prosecutor's comments prejudicial enough to warrant reversal. The prosecutor commented that: (1) the defense of insanity was concocted, and (2) the defendant would go free if the jury found him guilty by reason of insanity. This second comment, which was crucial to the finding of prejudice in Lapham, is totally lacking in the present case. Merely arguing that the defendant's insanity defense is fabricated may or may not be inflammatory depending on the facts of the particular case, and even if it is inflammatory it still may not be prejudicial enough to be reversible error. Id.

Here, the argument was neither inflammatory nor prejudicial. The defendant's defense was that he was in an organic delirium resulting from the mistaken ingestion of PCP. No one saw him take the drug, and the defense psychiatrist's conclusion that he suffered from such a delirium was based entirely on what the defendant told him. In addition, there was evidence that the defendant may not have been completely truthful with the psychiatrist. Thus, the central issue in this...