State v. Delisle, No. 92-039

Docket NºNo. 92-039
Citation648 A.2d 632, 162 Vt. 293
Case DateJuly 01, 1994
CourtUnited States State Supreme Court of Vermont

Page 632

648 A.2d 632
162 Vt. 293
STATE of Vermont
v.
Wayne E. DELISLE.
No. 92-039.
Supreme Court of Vermont.
July 1, 1994.

Page 634

[162 Vt. 296] Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Peter F. Langrock and Mitchell L. Pearl of Langrock Sperry & Wool, Middlebury, for defendant-appellant.

[162 Vt. 293] Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

[162 Vt. 296] MORSE, Justice.

Defendant appeals a jury conviction of second-degree murder. The principal issue is how the jury should be instructed when a lesser-included offense supported by the evidence is barred by the statute of limitations. We conclude that, in such a situation, the defendant should have a choice between foregoing an instruction on the lesser offense or obtaining an instruction informing the jury that, because the passage of time precludes prosecution for the lesser offense, it must acquit the defendant if it determines the evidence would support a conviction for that offense alone. Because the court refused defendant's alternative request to give a similar instruction, we reverse and remand for a new trial.

I.

On November 4, 1976, Richard Gonyo reported to the Vermont State Police that his wife, Laurie, was missing. Her body was found eight months later in the Lamoille River, wrapped in a tarp, bound with rope, and weighted down by cement blocks. Although the police considered defendant a suspect, no charges were brought against him at that time, and the case was classified as unsolved. In late 1989 or early 1990, defendant's son, Wayne "Bud" Delisle, who was eleven years old in 1976, went to the police with evidence implicating his father in Laurie Gonyo's murder. On March 7, 1990, the State charged defendant with first-degree murder.

At trial, the State presented evidence that the items used to wrap, bind, and weigh down the victim's body were indistinguishable

Page 635

from [162 Vt. 297] similar items gathered from defendant's property, which adjoined the victim's property. The state pathologist testified that the cause of death was manual strangulation. The State also introduced evidence that defendant and the victim had quarreled the night before she disappeared. Bud testified that the victim threatened to tell "a dark tale" about defendant if he did not take her horses to be shod the next day and did not give her new horse blankets. Bud also testified that during this argument defendant threatened to kill the victim. Bud then testified as to defendant's activities on the morning of the day the victim disappeared, explaining that his father broke with his normal routine. Bud testified that his father went toward the Gonyo residence, returned shortly thereafter, threw a tarp and some other items into the back of a pickup truck, and drove off. The State also presented evidence that defendant fled the area after the victim disappeared and introduced arguably inculpatory statements made by defendant. It was also undisputed that defendant and the victim had been involved in what the State described to the jury as "a torrid love affair."

Defendant maintained that he was innocent and that somebody else had killed Laurie Gonyo. He offered the alibi that he was at work in a store owned by his parents, which they corroborated. Defendant also explained that he left the area because the victim's husband threatened him, not because of the victim's disappearance.

The court instructed the jury on first-degree murder and the lesser-included offense of second-degree murder, but not voluntary manslaughter. Instead, the court instructed the jury that if the State failed to prove all of the elements of murder in the first or second degree, the jury must acquit defendant even if the State proved beyond a reasonable doubt that he had killed the victim. The jury convicted defendant of second-degree murder, and the court sentenced him to twenty-to-fifty years in prison.

Defendant claims on appeal that: (1) the trial court had accepted and was bound by a plea agreement to voluntary manslaughter, and even if the trial court was not bound by the plea agreement, it abused its discretion in rejecting the plea; (2) the trial court erred in refusing to charge the jury on the lesser-included offense of manslaughter; (3) the State did not present sufficient mens rea evidence for a second-degree murder conviction; (4) the court erred in allowing the State to give evidence concerning tangible evidence that it had lost; and (5) due process requires reversal because of the age of the case and inability to defend. Defendant raises other issues that we need not reach in light of our disposition of this case.

[162 Vt. 298] II.

Defendant first argues that the trial court accepted, and thus was bound by, the terms of a plea agreement reached by the parties. He also contends that, even if the court was not bound by the parties' agreement, it abused its discretion in rejecting the agreement.

On October 15, 1990, the parties informed the court that defendant agreed to plead no contest to the charge of manslaughter, and, in return, the State agreed to recommend a sentence of not less than four nor more than ten years, all suspended except for two years to serve, minus credit for time already served. During its colloquy with defendant to assure that the plea was knowing and voluntary, the court informed defendant that he would be given the sentence he agreed to "assuming that I'm able to consummate the plea agreement for you." The court also informed defendant that he could withdraw the plea "right through these proceedings." After hearing a rendition of the facts of the case, the court asked the State why it decided to enter into the plea agreement. The State explained that it was a "tactical decision" motivated primarily by the age of the case, but it conceded that the victim's mother was frustrated by the proposed sentence. The court responded as follows: "Okay. I'm going to be ordering a presentence report. I think it's important in this case." The court then entered an adjudication of guilt and stated that it would set a sentencing hearing after it had a chance to review the report.

Before the sentencing hearing, the court advised counsel in chambers that it had serious

Page 636

reservations about accepting the plea agreement. Both parties filed memoranda in support of the agreement, and then argued for the agreement at a February 28, 1991 hearing. While conceding that it had not specifically informed defendant at the October 15, 1990 hearing that it was deferring a decision on whether to accept or reject the plea agreement, the court stated that "that is the fairest interpretation of what occurred at that time." Noting that it had ordered the presentence report "to give me the advantage of having the probation officer's input and to reflect myself at greater length on what an appropriate sentence would be," the court concluded that it did not "believe that the plea agreement calls for an appropriate sentence given the nature of this offense."

Defendant contends that, in failing explicitly to defer its decision on whether to accept or reject the agreement at the October 15, 1990 hearing, the court accepted the agreement and was bound by it. In support of his contention, the defendant cites federal case law, particularly United States v. Holman, 728 F.2d 809, 812 (6th Cir.), [162 Vt. 299] cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984), for the proposition that a court's failure explicitly to reject, or defer a decision on, a plea agreement amounts to an acceptance of the agreement. The State counters that the court was not bound by the agreement because, unlike Federal Rule of Criminal Procedure 11(e)(2), Vermont Rule 11(e)(2)-(3) explicitly provides that a plea agreement neither binds the court nor limits its imposition of judgment or sentence unless the court informs the defendant that the maximum judgment and sentence it will impose is the one provided for in the agreement. We conclude the court was not bound by the agreement.

Once the prosecuting attorney has disclosed the terms and reasons for a plea agreement, Vermont Rule of Criminal Procedure 11(e)(2)-(4) sets forth the following procedure:

(2) Notice of Such Agreement. .... Thereupon the court, before entry of the plea, may accept or reject the agreement, or defer its decision as to acceptance or rejection until there has been an opportunity to consider the presentence report. The plea agreement shall not be binding upon the court nor shall it limit the court in the judgment and sentence to be imposed unless the court accepts the plea agreement under subdivision (e)(3) of this rule.

(3) Acceptance of Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or a less onerous disposition.

(4) Rejection of Plea Agreement. If the court rejects the plea agreement or defers decision upon it, the court shall inform the parties of this fact, advise the defendant personally in open court that the court is or may not be bound by the plea agreement, pursuant to Rule 32(d) afford a defendant who has already pleaded the opportunity to then withdraw his plea, and advise the defendant that if he persists in his plea the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

Our reading of the transcript of the plea hearing leads us to conclude that the court intended to defer a final decision on whether to accept or reject the plea agreement until it had an opportunity to review the presentence report. Further, because the Vermont rule states that the court is not bound by a plea agreement unless it informs the defendant that the strictest judgment and sentence it will [162 Vt. 300] impose is the one provided in...

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102 practice notes
  • State v. Morales, No. 14908
    • United States
    • Supreme Court of Connecticut
    • April 25, 1995
    ...demonstrate bad faith, even though the negligent loss of evidence may critically prejudice a defendant." State v. Delisle, --- Vt. ----, 648 A.2d 632, 643 (1994). Instead, the court has adopted, under the Vermont constitution, a balancing test that requires the trial court to conduct a "pra......
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 8, 2006
    ..."As a general rule, a criminal defendant is entitled to have the jury instructed on all lesser-included offenses." State v. Delisle, 162 Vt. 293, 301, 648 A.2d 632, 637 (1994). Second-degree murder and manslaughter are both lesser-included offenses of murder in the first degree. Id. The dis......
  • Pena v. State, No. 10-03-00109-CR.
    • United States
    • Court of Appeals of Texas
    • May 2, 2007
    ...test. See Gurley v. State, 639 So.2d 557, 566-67 (Ala.Crim.App.1993); State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999); State v. Delisle, 162 Vt. 293, 648 A.2d 632, 642-43 226 S.W.3d 652 (1994); State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504, 511-12 (1995). The various balancing tests em......
  • State v. Wai Chan, Docket: Aro-19-203
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 18, 2020
    ...the basis for doing so. See, e.g. , State v. Morales , 232 Conn. 707, 657 A.2d 585, 590-95 (1995) (collecting cases); State v. Delisle , 162 Vt. 293, 648 A.2d 632, 642-43 (1994) ; State v. Smagula , 133 N.H. 600, 578 A.2d 1215, 1217 (1990) ; Commonwealth v. Olszewski , 401 Mass. 749, 519 N.......
  • Request a trial to view additional results
102 cases
  • State v. Morales, No. 14908
    • United States
    • Supreme Court of Connecticut
    • April 25, 1995
    ...demonstrate bad faith, even though the negligent loss of evidence may critically prejudice a defendant." State v. Delisle, --- Vt. ----, 648 A.2d 632, 643 (1994). Instead, the court has adopted, under the Vermont constitution, a balancing test that requires the trial court to conduct a "pra......
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 8, 2006
    ..."As a general rule, a criminal defendant is entitled to have the jury instructed on all lesser-included offenses." State v. Delisle, 162 Vt. 293, 301, 648 A.2d 632, 637 (1994). Second-degree murder and manslaughter are both lesser-included offenses of murder in the first degree. Id. The dis......
  • Pena v. State, No. 10-03-00109-CR.
    • United States
    • Court of Appeals of Texas
    • May 2, 2007
    ...test. See Gurley v. State, 639 So.2d 557, 566-67 (Ala.Crim.App.1993); State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999); State v. Delisle, 162 Vt. 293, 648 A.2d 632, 642-43 226 S.W.3d 652 (1994); State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504, 511-12 (1995). The various balancing tests em......
  • State v. Wai Chan, Docket: Aro-19-203
    • United States
    • Supreme Judicial Court of Maine (US)
    • June 18, 2020
    ...the basis for doing so. See, e.g. , State v. Morales , 232 Conn. 707, 657 A.2d 585, 590-95 (1995) (collecting cases); State v. Delisle , 162 Vt. 293, 648 A.2d 632, 642-43 (1994) ; State v. Smagula , 133 N.H. 600, 578 A.2d 1215, 1217 (1990) ; Commonwealth v. Olszewski , 401 Mass. 749, 519 N.......
  • Request a trial to view additional results

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