State v. Couture, 97-426.

• Decision Date: 07 May 1999
• Docket Number: No. 97-426.,97-426.
• Citation: 734 A.2d 524
• Parties: STATE of Vermont v. Ronald G. COUTURE.
• Court: Vermont Supreme Court

734 A.2d 524

STATE of Vermont v. Ronald G. COUTURE.

No. 97-426.

Supreme Court of Vermont.

May 7, 1999.

Dan M. Davis, Windham County State's Attorney and Christopher C. Moll, Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

Charles S. Martin and Charles Tetreault of Martin & Associates, Barre, for Defendant-Appellant.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

Defendant Ronald Couture appeals his second degree murder conviction after a jury trial. Defendant contends that his conviction should be reversed because the trial court erred by: (1) denying his motions for judgment of acquittal and for a new trial, (2) admitting evidence of a drop of human blood on his boot in violation of the Fourth Amendment and V.R.E. 403, and (3) failing to describe the elements of murder and the lesser included offenses in the jury instructions in the order he requested. We affirm.

Randy Barrows' body was discovered in the early morning hours of June 23, 1993 lying on a path near the Connecticut River in Brattleboro. The police responded to the scene shortly after 6:00 a.m. There was a single bullet hole in Barrows' head. The entry wound was just above Barrows' left ear at the temple. An autopsy indicated that the bullet had travelled horizontally with a slight forward pitch from back to front. Barrows was lying face up with his left arm extended down and his right hand positioned around a brown bag. The weapon was not at the scene.

At trial, defendant claimed that Barrows committed suicide. The State sought to prove that defendant shot Barrows with evidence consisting of testimony from several of defendant's friends and associates who had seen him on the night of the shooting.

On June 22, 1993, defendant was temporarily staying at the Fletcher residence in Brattleboro after he and his wife had had an argument. Defendant, Barrows and another friend, Harry Goddard, started drinking early that evening at Barrows' residence. Large quantities of beer were consumed during the evening. The autopsy revealed that Barrows' blood alcohol content at the time of his death was .326 percent. On prior occasions when Barrows was drinking, he had professed his desire to commit suicide, and he reiterated his wish that evening. Defendant offered to sell Barrows a .22 caliber rifle to use for his suicide. After drinking beer and discussing the weapon, the three men left Barrows' residence and proceeded to Deborah Wilkins' house to drink more beer. Wilkins was acquainted with defendant and was a neighbor of Barrows.

At around 8:30 p.m., one of the men called a cab from the Wilkins' house in order to retrieve defendant's rifle from the Fletcher residence. Wilkins testified that when the cab arrived, Barrows did not want to go and that Goddard "pushed him into the cab." The cab driver testified that Barrows' companions were "harassing" him, "picking on him and slapping him in the back of the head." When they arrived at their destination, the three men went inside while the cab driver waited outside. Barrows eventually paid for the cab. The cab driver testified that he "saw the thinner man from the back seat grab the little guy by his neck and drag him out of the front door of the house and tell[] him to pay [] for the ride."

While inside the house, defendant's friend, Scott Denyou, observed defendant retrieve the rifle from a duffle bag. Denyou had known both defendant and Barrows for many years. Denyou asked defendant what he was doing, and defendant replied that "he was going to shoot someone."

Goddard testified to the events that followed. From defendant's temporary residence, the three men walked to the Riverview Restaurant for Barrows' last meal. Defendant carried the rifle wrapped in a garbage bag, and Barrows carried a bag full of beer. The restaurant was closed, and the men continued toward the river where Barrows eventually laid down on the ground with the beer by his side and said, "this will do." Defendant unwrapped the rifle and handed it to Barrows, who placed it beside him. Goddard then took a beer with him and walked back up the path alone toward the restaurant. Goddard testified that, moments after he left the scene at the river, he sat on the hood of a car, and "[s]ome sort of time elapsed and I heard a pop." Goddard then started to walk back down the path where he met defendant approaching with the rifle in hand. Defendant told Goddard "Randy is gone." They wrapped the rifle in the garbage bag and the two men left the area. Defendant and Goddard walked from the river to the house of another friend nearby, William Sabolevski, where they drank more beer. Goddard informed Sabolevski that Barrows was "gone" and that "you don't have to worry about Randy anymore." Defendant admitted to Sabolevski when they arrived that "He [Barrows] wanted to die and I popped him. I did it."

Goddard emptied the remaining bullets from the rifle and wrapped them in a paper towel, which he later threw down a storm drain after he and defendant left the Sabolevski residence. When defendant and Goddard departed, they took a fishing pole so that anyone who saw them arrive with the rifle would see them with a similar package on the way out. The next morning, Sabolevski, standing on his back porch, saw Barrows' body lying on the path. He found the rifle in the hallway outside of his front door. Sabolevski then dismantled the rifle, packed the pieces in a box with some old clothes, and put it in a dumpster.

The police questioned Sabolevski, who informed them that Goddard and defendant had stopped at his house the night before, and that the rifle was in the dumpster. An officer picked defendant up on June 23, and he was questioned by detectives at the police department. No arrest was made at that time. After further questioning on June 25, defendant was arrested and charged with first degree murder.

Another officer observed "drag marks" on the path leading to Barrows' body. The State suggested that Barrows was dragged to the place where he was shot. Goddard testified that Barrows had walked willingly down the path. In addition, the State offered fingerprint evidence taken from the rifle. Tests revealed only defendant's fingerprints, but the jury heard testimony regarding the handling of the weapon, including Sabolevski's testimony that he had wiped the gun off before placing it in the dumpster. The State also introduced evidence of blood taken from defendant's clothing.

Defendant did not testify at trial, but the jury saw portions of a videotaped interview conducted prior to his arrest. The jury found defendant guilty of second degree murder.

I.

After the State's case and at the close of all the evidence, defendant moved for judgment of acquittal under V.R.Cr.P. 29 based on insufficiency of the evidence. The trial court denied these motions, and also denied a defense motion for a new trial under V.R.Cr.P. 33. Defendant claims that the trial court erred by denying his motions for judgment of acquittal and for a new trial. Defendant contends that the evidence was insufficient to support the conviction and that the verdict was against the weight of the evidence. He claims that the State's evidence admitted of only one logical conclusion: Barrows committed suicide.

Our standard for reviewing a denial of a V.R.Cr.P. 29 motion for judgment of acquittal gauges whether "`the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.'" State v. Delisle, 162 Vt. 293, 307, 648 A.2d 632, 641 (1994) (quoting State v. McBurney, 145 Vt. 201, 204, 484 A.2d 926, 928 (1984)). Defendant urges us to reconsider our previous decision in State v. Miller in which we affirmed a second degree murder conviction based largely upon circumstantial evidence. See State v. Miller, 146 Vt. 164, 502 A.2d 832 (1985). Defendant asks us to apply a more rigorous analysis when reviewing motions for judgment of acquittal in cases based solely on circumstantial evidence. We decline to fashion a hard and fast rule regarding the sufficiency of evidence in a circumstantial case. Rather, each case must be based on its own facts and circumstances, and a judgment of acquittal is proper only if the prosecution has failed to put forth any evidence to substantiate a jury verdict. See State v. Devine, 168 Vt. ___, ___, 719 A.2d 861, 863 (1998) (defendant's motion for judgment of acquittal properly denied where State established prima facie case of criminal negligence).

Here, a prima facie case of first degree murder required the State to show that defendant intended to kill Barrows and that he did so deliberately and with premeditation. See 13 V.S.A. § 2301; State v. Johnson, 158 Vt. 508, 515-17, 615 A.2d 132, 136-37 (1992). The prosecution offered circumstantial evidence to show that defendant shot Barrows, including the nature of the bullet wound which, while far from conclusive, indicated that suicide was improbable. The State is not required to exclude every reasonable hypothesis of innocence if the inferences drawn from circumstantial evidence amount to more than "mere suspicion." State v. Durenleau, 163 Vt. 8, 12, 652 A.2d 981, 983 (1994). Furthermore, the State offered direct testimonial evidence that defendant admitted that he was "going to shoot someone" and confessed after Barrows' death that he had "popped him." Reviewing the evidence in the light most favorable to the prosecution and excluding defendant's modifying evidence, the State's case was sufficient to carry its burden under 13 V.S.A. § 2301, and withstand defendant's motion for judgment of acquittal. See State v. Grega, 168 Vt. ___, ___, 721 A.2d 445, 457 (1998).

A motion for a new trial under V.R.Cr.P. 33 "tests the sufficiency of all the evidence presented at trial ... [and] raises the question whether the jury...