State v. Buckley

• Decision Date: 27 May 2016
• Docket Number: No. 15–407.,15–407.
• Citation: 149 A.3d 928,2016 Vt. 59
• Parties: STATE of Vermont v. David G. BUCKLEY.
• Court: Vermont Supreme Court

149 A.3d 928

2016 VT 59

STATE of Vermont

v.David G. BUCKLEY.

No. 15–407.

Supreme Court of Vermont.

May 27, 2016.

Motion for Reargument Denied July 6, 2015.

Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff–Appellee.

Timothy M. Andrews and David F. Silver of Barr, Sternberg, Moss, Lawrence, Silver & Munson, P.C., Bennington, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

EATON, J.

¶ 1.Defendant appeals from his conviction by jury of aggravated assault with a deadly weapon and disorderly conduct.Defendant was acquitted of reckless endangerment.Defendant was charged with these crimes after allegedly pointing a shotgun at and threatening to shoot two men who were repossessing a vehicle from a tenant parking lot on his property.Defendant admitted confronting the men with a gun, but steadfastly denied pointing it at them or threatening to shoot them.Defendant argues on appeal that the court committed plain error by failing to sua sponte instruct the jury on self-defense, defense-of-others, and defense-of-property.He maintains that the court compounded its error through its instruction on repossession of collateral.We find no plain error, and affirm.

¶ 2.Defendant's claims of error require a detailed review of the evidence presented at trial.The incident giving rise to these charges transpired on May 17, 2014, on defendant's property in Bennington, Vermont.The property is located across the street from the police station, and it is bisected by two public roads.Defendant lives on the property with his brother, Peter Buckley.¹Defendant owns a residential rental apartment building adjacent to his house.There is a parking lot near the house that is used by the apartment building tenants.Around 5:00 a.m. on the morning in question, two employees of a repossession company located a car that was the subject of their repossession efforts parked in the parking lot on defendant's property.²The lot was no more than ten to fifteen feet off of the public road.The car in question belonged to a woman who was visiting one of defendant's tenants.Defendant knew of this woman, knew that she was a guest of his tenant, and knew that it was her car in the lot.

¶ 3.After verifying that both the license plate and the VIN number matched the car they were seeking to repossess, the employees backed their flatbed truck toward the car and hooked it with a cable in preparation to tow it away.One employee was in the driver's seat while the other hooked up the car.The noise of the truck woke Peter, who went outside to investigate.The employee who was outside testified that Peter was very loud, and that despite informing Peter why they were there, Peter told them to get off his property.Peter, by contrast, described himself as calm, and claimed that the employee was belligerent and swearing at him.Peter said that he“started to back himself into a log pile” as the employee was “coming at [him].”Peter testified that he interacted only with this employee.

¶ 4.Sometime during the encounter between the employees and Peter, defendant testified that he woke to loud voices outside his home using language he felt was abusive and threatening.He looked out the window and claimed to see two men, unknown to him, advancing toward his brother.He heard his brother tell the men they needed to unhook the car and leave the property.Defendant grabbed his shotgun, which he claimed was unloaded, went outside, and stood next to Peter.Peter testified that at that point the employees were at least twenty to twenty-five-feet away.Defendant similarly testified that the employees were twenty feet away when he arrived on the scene, and he stated that immediately after seeing his gun, the employees “retreated back” to a position forty-five feet away.Defendant knew that the employees were not armed.

¶ 5.Not surprisingly, the testimony at trial differed considerably about what happened next.The employee who hooked up the car testified that defendant was fifteen feet away from him, and he held a shotgun in the “ready” position with the butt of the gun in his shoulder pocket.He testified that defendant pointed the gun in the “general direction” of himself and the other employee.The employees were standing on either side of the flatbed truck at that point.The employee also testified that defendant screamed at them multiple times that if they did not unhook the car he would shoot them.The shotgun remained pointed at them during a stand-off lasting between one and five minutes.Ultimately, the employee went to the tow truck and called the police.When the employee got off the phone, defendant and the shotgun were gone.The employee then unhooked the cable from the car, moved the tow truck into the parking lot and waited for the police to arrive.

¶ 6.Peter claimed to feel threatened because one employee was swearing and walked toward him.Nonetheless, he testified that he was calm when defendant exited the house, and defendant similarly testified that Peter was interacting with the employees in a “business-like” manner.Defendant stated that when he came outside with a gun, this stopped the employees from advancing toward him and Peter.As indicated, defendant testified that the men were twenty feet away when he emerged from the house, and that they moved back to forty-five feet away.Defendant and Peter denied that defendant ever pointed the shotgun at the employees and stated instead that defendant had pointed it into the air for the duration of the encounter.They denied that defendant repeatedly threatened to shoot the repossession employees.According to defendant and Peter, they repeatedly told the men they were trespassing and, eventually, the men were persuaded to leave.

¶ 7.Two of defendant's tenants also testified that defendant did not point the shotgun at the repossession men or threaten to shoot them.One tenant claimed to have been standing by defendant's side during the encounter with the employees, although police did not observe her at the scene, and defendant did not mention her presence to police.

¶ 8.The question of whether the employees were privileged to be on the property arose at trial.The employee who hooked up the car testified, based on his training and experience, to his understanding of what repossession agents were allowed to do.Peter also testified to his understanding of what was allowed.

¶ 9.At the close of the evidence, the court discussed its proposed jury instructions with counsel and asked the parties for any objections.The court explained in detail how it had crafted its instruction regarding a person's ability to repossess collateral, such as a vehicle.It discussed the case law it had reviewed on this issue, and it also discussed trespass and defense-of-property issues.The court expressed to the parties that a person has a reasonable right to deal with intrusions but also must use a reasonable degree of force, and noted that these were questions for the jury.While the State made numerous proposals in response to the court's proposed instructions, defendant raised no relevant objections.

¶ 10.The court instructed the jury in relevant part as follows:

In determining intent, you may consider all of the surrounding circumstances and facts established by the evidence.A secured party may try to take possession of collateral such as a vehicle without judicial process if it can be done without breach of the peace.A breach of peace is an action that causes or is likely to cause an immediate disturbance or loss of public order.It must be reasonably likely and not merely a remote possibility.

Merely going on someone's land or trespassing to repossess a vehicle is not a breach of peace alone.Whether actions do rise to a breach of peace allowing the owner of the land to defend his ownership depends on the accompanying circumstances of each case.[There are][a] number of factors ... you may weigh.These include whether the manner [in which] it was done created a potential for immediate violence and the nature of the premises intruded upon.This can depend on the time of day, the closeness to a dwelling, whether the property is secluded or not, notice or lack of notice, whether the property is owned by the debtor or a third-party and whether the third-party had notice of the debtor's situation, [and] did anything have to be moved or broken such as gates or doors to enter the location.

Even if there is a breach of peace as you find it, defendant must still act reasonably and use only reasonable degree of force in defending against it.You must determine from all the circumstances as you find they happened, if any actions you find defendant did were reasonable under the circumstances, so that they were not criminal.

¶ 11.The jury convicted defendant of aggravated assault with a deadly weapon and disorderly conduct, and acquitted him of reckless endangerment.Defendant obtained new counsel and filed a motion for a new trial, raising arguments similar to those raised in this appeal.The court denied the motion.It explained that defendant had not raised any of his objections to the jury instructions at trial, and it found no plain error.The court found the instructions as given, and considering the lack of objections, were fair and appropriate.

¶ 12.Given the evidence, moreover, the court questioned if a self-defense instruction would have been proper but it concluded that the absence of such instruction certainly was not plain error.The court found it hard to believe that defendant had not knowingly refrained from a self-defense instruction considering the facts of the case and his argument as to innocence.It concluded that defendant should not now benefit by arguing that the court should have given such an instruction despite his failure to ask for it.While the court acknowledged that it must instruct on all necessary issues, it pointed to the...