State v. Day, 86-549
| Decision Date | 31 December 1987 |
| Docket Number | No. 86-549,86-549 |
| Citation | 540 A.2d 1042,149 Vt. 165 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Darrell F. DAY. |
Deborah A. Barnard, Bennington County Deputy State's Atty., Bennington, for plaintiff-appellee.
Walter M. Morris, Jr., Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.
Before ALLEN, C.J., PECK, DOOLEY and MAHADY, JJ., and CONNARN, District Judge (Ret.), Specially Assigned.
Defendant was convicted, by jury, of knowingly and unlawfully selling for a consideration a regulated drug, cocaine, in violation of 18 V.S.A. § 4224(g). At trial, he relied upon the "procuring agent" defense. His appeal raises the following issue: Did the trial court adequately instruct the jury as to this theory of defense? We conclude that the charge was adequate and affirm.
Vermont recognizes the "procuring agent" defense. Where the sale of a regulated drug for a consideration forms the basis of the crime charged, the State must prove beyond a reasonable doubt that defendant was a "seller." However, " '[i]f the [defendant] undertook to act in the prospective purchaser's behalf rather than his own, and in doing so purchased the drug from a third person with whom he was not associated in selling, and thereafter delivered it to the buyer, the [defendant] would not be a seller.' " State v. Bressette, 136 Vt. 315, 317, 388 A.2d 395, 396 (1978) (quoting that defendant's requested jury instruction and holding that the instruction should have been given).
Defendant requested the court to include the following instruction in its charge to the jury:
The law requires the State to disprove the defense of agency beyond a reasonable doubt. So you must examine all the circumstances in this case to determine whether or not the State has proved beyond a reasonable doubt that the defendant did not act as an agent of [the buyer]....
The trial judge did not give this instruction as requested, and defendant objected in a timely fashion.
The trial judge, however, did clearly charge that it was the burden of the State to prove beyond a reasonable doubt that defendant sold a regulated drug. He went on to explain:
if [defendant] undertook to act solely in ... [the buyer's] behalf rather than his own and in so doing obtained the drugs from a third person and delivered [them] to the buyer, he would not be a seller.... [I]t's important to understand that in a drug transaction every buyer is of course a participant but the buying of a regulated drug is not a crime in Vermont. The crime is selling a regulated drug.
The court further charged the jury:
A person acting solely as an agent for a narcotics buyer cannot be convicted for the sale of a regulated drug. You must act on behalf of the seller to be guilty, or of course, he himself may be the seller. And if so, he would be guilty.
This charge fully explained defendant's theory of the case and the law applicable to that theory.
Obviously, State v. Morse, 127 Vt. 137, 141, 241 A.2d 328, 331 (1968). What is required is that the court provide the jury with a charge that is "full, fair, and correct on all issues, theories, and claims within the pleadings, so far as the evidence requires." State v. Ciocca, 125 Vt. 64, 74-75, 209 A.2d 507, 515 (1965).
It is particularly important to recognize that "[a] defendant is entitled to have the court present a defense based on the evidence 'to the jury squarely, that they might confront it, consider it, and resolve its truth or falsity by their verdict.' " State v. Drown, 148 Vt. 311, 312, 532 A.2d 575, 576 (1987) (quoting State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58 (1955)).
The trial judge clearly recognized the importance of this rule. He carefully tailored a clear and specific charge which fairly and fully explained defendant's theory of defense in the context of the evidence of the particular case....
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...fair, and correct on all issues, theories, and claims within the pleadings, so far as the evidence requires.' " State v. Day, 149 Vt. 165, 166, 540 A.2d 1042, 1043 (1987) (quoting State v. Ciocca, 125 Vt. 64, 74-75, 209 A.2d 507, 515 (1965)). See also State v. Bishop, 128 Vt. 221, 230, 260 ......