State v. Brochu, 05-177.

• Decision Date: 07 March 2008
• Docket Number: No. 05-177.,05-177.
• Parties: STATE of Vermont v. Alfred E. BROCHU.
• Court: Vermont Supreme Court

949 A.2d 1035

2008 VT 21

STATE of Vermont v. Alfred E. BROCHU.

No. 05-177.

Supreme Court of Vermont.

March 7, 2008.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney

General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, Montpelier, and William A. Nelson, Middlebury, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and BURGESS, JJ., and PEARSON, Supr. J., Specially Assigned.

DOOLEY, J.

¶ 1. Defendant Alfred Brochu was convicted of aggravated murder following a jury trial in Addison District Court. On appeal, defendant argues that his conviction should be reversed because the evidence is insufficient to reasonably and fairly convince a trier of fact that defendant is guilty beyond a reasonable doubt. Defendant also argues that the trial court: (1) erred in admitting expert microscopic-hair-comparison evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Vermont Rule of Evidence 702; (2) violated defendant's right to compulsory process in limiting the questions defendant was able to ask his expert witness; (3) erred in excluding information from a list of past sexual partners kept by the victim; (4) erred in excluding, as hearsay, the statement of one of the victim's alleged sexual partners; and (5) violated defendant's Confrontation Clause rights by unduly limiting defendant's cross-examination of a witness for the State. We affirm.

¶ 2. The evidence at trial disclosed the following. On January 17, 2003, the victim's aunt and a companion forced their way into victim's apartment in Barre, Vermont, after becoming concerned when the victim, an eighteen-year-old woman, would not return their calls. They discovered the victim on the floor of the living room, lying on her back with her right arm over her head and a blue towel covering her legs. The victim's underwear had been pulled down and a sanitary napkin left on her left thigh. Below the white sweater the victim was wearing, it was apparent that she had been stabbed and that her breasts had been removed.

¶ 3. The medical examiner concluded that the victim died of multiple stab wounds to the chest. The examiner also stated that the victim had also suffered from some form of blunt-force trauma to the head. While examining the victim's body, the examiner took swabs from the victim's vagina and mouth, both of which tested positive for PSA, a chemical substance that can indicate, inter alia, the presence of seminal fluid. No PSA was detected on the sanitary napkin. Based on the concentration of the PSA that was detected, the examiner concluded that the PSA came from seminal fluid rather than from another bodily discharge. There was no evidence of vaginal tearing. The examiner also collected several pubic hairs from the body.

¶ 4. The oral and vaginal swabs were subsequently subjected to DNA testing. The vaginal swab indicated that both male and female DNA were present and that the female DNA matched the victim's profile. There was relatively little volume remaining to test the male DNA. After separating out the male DNA, the laboratory compared it with the DNA profiles of four men known to have been romantically involved with the victim, including defendant's son. The DNA did not belong to the son but was 99.9% likely to belong to either his son or his father. A blood sample was then obtained from the defendant and a DNA profile created. The profile for both the oral and vaginal samples matched that of defendant.

¶ 5. On February 6, 2003, at the conclusion of DNA testing, the police interviewed defendant about his knowledge of the crime. At a first interview, he claimed that the victim had come to visit him at Progressive Plastics, where he worked. He explained that he had known the victim because she had been dating his son and that she came to his workplace to say she was breaking up with his son. According to defendant, the victim asked him to tell his son that the victim no longer wanted to see him, gave defendant a hug and drove away. Defendant also stated that he had repeatedly interrogated his son and the son's close friend about their whereabouts at the time of the murder.

¶ 6. At a second interview on March 3, defendant added that he had never had sex with the victim and that he had noticed that the victim appeared to be "stoned" when she visited him at work. Nine days later, defendant was asked to come to a municipal building complex in Barre where a model of the crime scene had been created. When confronted with pictures of the victim's body, defendant began dry-heaving. Officers then asked defendant about his relationship with the victim. Defendant denied having anything to do with the victim's murder. Defendant repeated his story about the victim's visit to the plant where he was employed but added that the victim had visited the plant on two separate occasions on the night of the murder. Defendant also stated that a friend of his might have been at his house on the night of the crime. At the end of this interview, defendant was arrested, and warrants were executed to search his house and car. Neither search produced any evidence.

¶ 7. Defendant was charged with aggravated first-degree murder pursuant to 13 V.S.A. §§ 2301, 2311(a)(8). As charged, the murder was first degree and aggravated because defendant allegedly committed murder while perpetrating a sexual assault on the victim. The punishment for aggravated murder is life imprisonment without probation or parole. Id. § 2311(c).

¶ 8. At trial, the State emphasized the forensic evidence that linked defendant to the crime. The State stressed that defendant's DNA had been found in the victim's mouth and vagina. The State also presented the PSA evidence to show that the contact between defendant and the victim had been sexual in nature. In addition, the State put on expert testimony about the hairs discovered on the victim's body. The first witness testified that, based on a microscopic visual comparison, she could not eliminate defendant as the source of the pubic hairs found at the scene of the crime. A second witness testified that the mitochondrial DNA (mtDNA) profile of the hair found at the scene matched the defendant's profile, as well as those of approximately 9% of the Caucasian male population.

¶ 9. Defense counsel had previously moved to exclude both visual hair comparison and mtDNA testimony on the ground that these forms of analysis did not satisfy the requirements of Daubert and Rule 702. The court denied these motions, concluding that, under Rule 702, there were an adequate number of published studies about each form of analysis and that each had scientific validity.

¶ 10. The central focus of the defense was an alibi. On the night the murder occurred, defendant was working a double shift at Progressive Plastics, running three machines that produced specific plastic parts. Defendant began work at 2:30 p.m. and worked with others until 7:15 p.m. He worked alone until 6:00 a.m. the following morning, when another employee joined him until he left at 9:00 a.m. The State's theory was that the murder occurred some time before 9 a.m., and so defendant must have left the plant during his shifts to commit the murder. The evidence showed that it would take approximately twenty-four minutes for defendant to drive from the plant to the victim's apartment and return. Defendant's position was that he could not have maintained the machine production numbers established by the evidence if he left the plant for that period.

¶ 11. In his direct case, defendant presented the expert testimony of the plant manager and attempted to elicit testimony that, based on the production numbers, defendant could not have left the plant for the time necessary to commit the murder. The trial court allowed some of this testimony but excluded parts, and the exclusions are challenged here.

¶ 12. To undermine defendant's alibi, the State presented the testimony of a friend and former coworker. She testified that defendant had not seen her that night, but that he had spoken with her on several occasions about the murder and had asked her to lie about having seen him at Progressive Plastics on the night of the killing.

¶ 13. Various other evidentiary issues arose in the course of the trial. The State presented the testimony of several witnesses, including a close friend of defendant's son. When cross-examining the friend, defendant elicited testimony that the friend considered the son to be like a brother and frequently allowed the son to sleep at his house. The friend further testified that he had two prior felony convictions. Defendant sought to ask the friend about instances in which the two men had sexual intercourse with the same woman at the same time. Defendant also hoped to introduce evidence that the two had committed crimes together. The trial court sustained the State's objections to these questions.

¶ 14. Defendant also presented a list of sexual partners allegedly kept by the victim, arguing that men on the list may have been the source of the pubic hairs collected from the crime scene. The State objected and requested that the trial court limit evidence of the victim's sexual past to her encounters with witnesses, including defendant's son, who would be testifying for the State. The court excluded the list, concluding: (1) the list was inadmissible hearsay; (2) defendant had not satisfied the requirements of this Court's decision in State v. Grega, 168 Vt. 363, 721 A.2d 445 (1998), which governs introduction of others as possible alternative perpetrators; and (3) the threat that the evidence would mislead the jury outweighed the probative value of the evidence.

¶ 15. The court also excluded as hearsay the statement of a declarant who told a detective that he had oral sex with the victim the night before the murder. Def...