State v. Davis, 95-090

• Decision Date: 21 June 1996
• Docket Number: No. 95-090,95-090
• Citation: 165 Vt. 240,683 A.2d 1
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Richard DAVIS.

Page 1

683 A.2d 1

165 Vt. 240

STATE of Vermont v. Richard DAVIS.

No. 95-090.

Supreme Court of Vermont.

June 21, 1996.

Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for plaintiff-appellee.

Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant.

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

ALLEN, Chief Justice.

Defendant appeals his jury convictions for kidnapping, 13 V.S.A. § 2405, and simple assault, 13 V.S.A. § 1023. He argues that the allocation of the burden of proof under 13 V.S.A. § 2405(b) violates the United States and Vermont Constitutions and that the trial court erred when it failed to hold a competency hearing. Defendant also argues that the court committed other trial errors regarding the admission or exclusion of evidence. We affirm.

On July 10, 1993, the victim, then married to defendant, left him and obtained a restraining order against him. She filed for divorce on July 23, and defendant subsequently threatened her with violence if she proceeded with the divorce. On August 16, defendant entered the victim's home and waited there for her to return from work. When the victim opened the door, defendant sprayed her in the face with pepper spray. He struck her in the face, hitting her in the jaw and nose. He then pulled her into the bedroom by her hair, while at the same time kicking her. After throwing the victim onto the bed, defendant tore her clothes from her body while continuing to strike her. Picking up some duct tape, defendant told her to put her hands behind her back and that she was "going for a ride." She initially refused, but he threatened to beat her more if she did not cooperate with his request.

After allowing the victim to put some clothes back on, defendant taped her hands behind her back. He led her to her car, where he forced her face down into the back seat. At that time, he said, "I put a gun in the trunk. You're going to go with me and watch me while I shoot myself." Defendant then drove the car up an isolated mountain road. After a while, he stopped the car and spoke to her in a desultory manner, saying that he was not sure whether he was going to shoot himself, or her, or her and then himself.

Defendant moved the victim to the front seat and continued to drive. While driving, he continued to threaten the victim with violence. As they passed a home with people outside, the victim yelled for help. In response, defendant sped up and struck the victim in the jaw. Defendant then turned off the road and drove across a field, stopping at the edge of a wooded area. Defendant dragged the victim from the car and towards the woods. Before reaching the woods, he severed the tape binding her wrists and said, "Go on. Get out of here." As the victim fled, defendant drove the car towards her. She jumped into a grove of trees and he drove off.

The victim walked to the road and flagged down a passing motorist. The motorist took the victim to an emergency room in St. Johnsbury, where she was found to have a laceration above her right eye, bruising and swelling around both eyes, a swollen left cheek and jaw, a broken nose, scratches and abrasions on her neck, and abrasions on her back and buttocks.

The incident was reported to the police and a bulletin to "be on the lookout" for defendant, possibly driving the victim's car, was broadcast to officers on patrol. Later that evening, two state troopers drove to defendant's mother's trailer, where defendant lived, to look for him. Before knocking on the trailer door, the officers noticed the victim's automobile parked seventy feet behind the trailer. Although the troopers did not find defendant at that location, they had the victim's automobile removed by a wrecker and taken to a secure location. The victim's automobile was subsequently searched with her consent.

The police also looked for defendant at the victim's home, and searched for evidence of the crime while there. They located a paper bag containing a number of items from the victim's home, but which she had not placed in the bag. One item, not from her home but found in the bag, was a United States Navy knife and sheath, both wrapped in a vinyl tent bag. At trial, the victim testified that she had never seen the knife before, and did not know to whom it belonged. She recognized the tent bag as from a tent that she had purchased; she had given the tent to defendant's parents when they came to collect defendant's belongings after the victim and defendant separated.

Defendant was apprehended and subsequently charged with kidnapping and aggravated assault. The information charging defendant with kidnapping reflected the statutory punishment of life imprisonment. On November 23, 1993, defendant entered into a plea agreement, and the State amended the charge to mitigated kidnapping, with a maximum sentence of thirty years imprisonment. Defendant later withdrew his plea with the permission of the court. Before trial, however, the information was not amended to again reflect punishment of life imprisonment.

Before trial, the State filed a motion in limine seeking to exclude evidence of the victim's psychiatric hospitalizations in 1969 and 1984. The defense sought to introduce medical records showing the victim had attempted suicide and had been hospitalized for observation. The medical records also included references to her use of alcohol. The defense sought to use the evidence to impeach the victim. The trial court excluded the evidence on the ground that it was not probative of the victim's truthfulness. The court also found the evidence prejudicial to the victim.

Before trial, defendant's attorney filed a motion for a competency evaluation, and the court ordered an examination. The competency evaluation was performed on October 5, 1993. The psychiatric examiner's report noted that defendant was of low-average intelligence and had no previous inpatient or outpatient psychiatric history. In the report, the examiner also stated that defendant understood the charges against him, understood the roles of the participants in the criminal proceeding, and was capable of assisting in the preparation of his defense. A competency hearing, scheduled for November 9, 1993, was cancelled when defendant entered into a plea agreement. When defendant sought to change his plea, defense counsel stipulated to the findings in the psychiatric report and agreed that defendant was competent to stand trial.

A different attorney was assigned to defendant for the trial. Defendant's second attorney told the court that he was "concerned about competency" and noted that defendant had been uncooperative because he "either doesn't have the ability or he's unwilling and stubborn." The trial judge noted that, based on his own observations and his review of the competency report, he was not concerned about defendant's competency. Nevertheless, the judge suggested that a mental health screener evaluate defendant to determine whether a full-scale competency examination should be performed. Defense counsel told the court that that course of action was "acceptable."

The following morning, the court provided defendant with a mental health screener. Defendant refused to speak with the mental health screener, so the mental health screener reviewed the competency report and spoke to defense counsel about defendant's behavior. The mental health screener concluded that defendant's unwillingness to cooperate with counsel resulted from immaturity rather than mental illness. Defense counsel "continue[d] to have some concerns" and said, "I don't know if that's paranoia or not, but he feels very isolated, feels that nobody has listened to him." The trial judge responded that "it does not appear to me there is a competency issue." The competency issue did not arise again.

During trial, defendant filed two motions seeking the recusal of the trial judge, the first before trial and the second before sentencing. The first motion sought recusal on the ground that the judge had presided over defendant's change-of-plea hearing. The administrative judge denied defendant's first motion because the trial judge's prior involvement in a judicial capacity was insufficient grounds for disqualification. The second motion sought the trial judge's recusal from sentencing because information from defendant's competency evaluation had erroneously been included in the presentence investigation report, which the trial judge had reviewed. On defendant's request, however, the trial judge struck from the report defendant's competency evaluation and ordered the preparation of a new report by a different probation officer. The administrative judge also denied defendant's second recusal motion.

A jury convicted defendant of kidnapping and of the lesser-included offense of simple assault. The trial judge sentenced defendant to life imprisonment, with not less than twenty-five years to serve.

I.

Defendant argues that the kidnapping statute, 13 V.S.A. § 2405, unconstitutionally shifts the burden of proof to the defendant. We conclude that the legislative allocation of the burden of proof ins 2405(b) ¹ is clearly permissible under the United States and Vermont Constitutions.

In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the United States Supreme Court upheld a New York law substantially similar to § 2405. At issue in Patterson was a statute that defined second-degree murder as causing the death of another with the intent to do so, but which also provided an affirmative defense of extreme emotional disturbance. If the defendant could prove by a preponderance of the evidence that he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation, the crime was reduced from murder to manslaughter. The defendant challenged the statutory allocation of the burden of proof as a violation of due...