State v. Gibney

• Decision Date: 28 March 2003
• Docket Number: No. 99-081.,99-081.
• Citation: 825 A.2d 32
• Parties: STATE of Vermont v. Shawn K. GIBNEY.
• Court: Vermont Supreme Court

825 A.2d 32

STATE of Vermont v. Shawn K. GIBNEY.

No. 99-081.

Supreme Court of Vermont.

March 28, 2003.

Diane C. Wheeler, Franklin County Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.

Robert Appel, Defender General, Anna Saxman, Deputy Defender General, and Henry Hinton, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE¹, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

¶ 1. Defendant appeals from his conviction by jury on one count of first-degree murder, for which he received a sentence of fifty years to life. Defendant makes four claims on appeal: (1) the jury's guilty verdict was not supported by the evidence; (2) he was improperly prohibited from offering exculpatory evidence that other persons had the motive to kill the victim; (3) the court erred in failing to dismiss the case, or to impose an alternate sanction, because of the prosecution's destruction of possibly exculpatory notes taken by various police officers during their investigation; and (4) the court erred in concluding that defendant's sentence should be aggravated because the crime had multiple victims. We affirm the conviction, but reverse the sentencing decision and remand for resentencing.

¶ 2. Defendant's first claim on appeal is that the guilty verdict is not supported by the evidence and thus the trial court erred in denying his motion for a judgment of acquittal. Because defendant was charged with first-degree murder, the State was required to prove beyond a reasonable doubt that defendant killed the victim, Sam Gendron, that he intended to do so, and that he did so deliberately and with premeditation. State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999); 13 V.S.A. § 2301. The evidence, taken in the light most favorable to the State and excluding any modifying evidence, must sufficiently and fairly support a finding of guilt beyond a reasonable doubt. See State v. Durenleau, 163 Vt. 8, 10, 652 A.2d 981, 982 (1994). The evidence "must be examined both for its quality and strength," and it cannot create a mere suspicion of guilt or leave guilt uncertain or dependent on conjecture. Id.

¶ 3. This was an assassination. The victim was shot multiple times by a semi-automatic assault rifle while driving in his pick-up truck. One of the bullets blew away a portion of Gendron's scalp and skull; a portion of the skull was found on the ground near the truck. Thus, there is no dispute that whoever shot Gendron did so with intent to kill, deliberately and with premeditation. The only issue in the trial was whether the State proved beyond a reasonable doubt that defendant was the shooter.

¶ 4. The State's case was strongest with respect to motive. In May 1992, defendant assaulted Gendron, his supervisor, when they both worked for Blue Seal Feeds in Richford. Defendant was convicted of simple assault for this incident and, on June 2, 1992, he was fired from his job because of it. Defendant blamed Gendron for his discharge and threatened and harassed him thereafter. On one occasion defendant called Gendron a "dead man." Defendant told an investigating police officer that next time he would take care of Gendron and "blow his head off." The murder occurred on June 2, 1997, exactly five years after defendant was fired from his job.

¶ 5. No one saw the murder, but up to a point, the State made a strong showing that defendant had the opportunity to commit the crime. Every day around 11 A.M., Gendron left work and drove home for lunch, proceeding in his pick-up truck up Hardwood Hill Road. On the day of the murder, he punched out of work at 11:36 A.M. and proceeded home, some ten minutes away by vehicle. He was shot from the side of the road as he proceeded up the hill. Neighbors called for an ambulance at 11:51 A.M.

¶ 6. Numerous observers saw defendant standing along Hardwood Hill Road next to his blue Cadillac automobile, placing the times of observation at some point between 10:30 A.M. and 11:30 A.M. He smoked a number of cigarettes at this location and drank from a plastic Coca-Cola bottle. His location was approximately that from which the shots at Gendron were fired. No one saw defendant or his vehicle leave that location. Although defendant did not testify at trial, his evidence suggested that he was at that location looking for a place to grow marijuana plants.

¶ 7. At this point, the opportunity evidence becomes less clear. A witness was walking up Hardwood Hill Road when Gendron passed in his truck going in the same direction. About thirty seconds thereafter, the witness heard shots and the sound of a running motor on the truck, but observed no one else driving on Hardwood Hill Road. The observer came up to the truck off the road, saw Gendron's body, and proceeded to the next house up the hill. At that house, three persons were working. They heard the shots, and one went outside to look. He could see the road but neither saw nor heard a vehicle pass on it after the shots. ¶ 8. The only access to the point of the shooting by car was by Hardwood Hill Road. However, bike trails provided access to Hardwood Hill Road near the point of the shooting for off-road vehicles.

¶ 9. The main evidence that defendant was gone from Hardwood Hill Road at the time of the shooting came from Carolyn Rivers, who testified that she was driving on South Richford Road to reach the Richford town clerk's office by noon. She testified that she saw defendant proceeding towards her and passing her; he was driving fast and in the middle of the road. She estimated that the point of passage was a thirty-minute drive from the point of the shooting on Hardwood Hill Road. She said she saw defendant at about 11:45 A.M.

¶ 10. Although the State identified the assault rifle as an AK-47 or similar type, it never found the murder weapon. It did establish that defendant once owned an assault rifle of the type used in the murder. During a search of defendant's house, it found an empty box of cartridges for such a rifle.

¶ 11. Defendant was arrested some twelve hours after the crime.

¶ 12. Defendant's position is that the State did not prove that he was at the shooting point at the time Gendron was shot, and thus the State's evidence is insufficient to establish guilt beyond a reasonable doubt. He points to the testimony of three witnesses—two who testified to seeing no car proceed on Hardwood Hill Road immediately after the shooting, and one who testified to observing defendant thirty minutes away within minutes of the shooting—that he argues precludes any inferences of guilt that can be drawn from the State's circumstantial evidence.

¶ 13. The undisputed State's evidence that defendant committed the crime was very strong. Defendant's motive, his threat to "blow [Gendron's] head off," the date of the shooting, the method of the killing, defendant's observed presence at the place from which the shots were fired shortly before the shooting, and his weak explanation for his presence would add up to an overwhelming case against him. The fact that the evidence is circumstantial is not determinative. See State v. Findlay, 171 Vt. 594, 599, 765 A.2d 483, 487 (2000) (mem.) ("While it is true that evidence leaving a determination of guilt wholly dependent upon conjecture is insufficient, circumstantial evidence may serve as proof of guilt beyond a reasonable doubt."). Indeed, recognizing that a claim of coincidence would be incredible, counsel on appeal argued that defendant must have been set up by an unknown killer who was aware of defendant's movements and wanted to frame him for the crime while killing Gendron.

¶ 14. The issue then is how we must consider the countervailing evidence. Our standard for reviewing a denial of a motion for a judgment of acquittal requires us to determine only whether the State's evidence, taken in the light most favorable to the State and excluding any modifying evidence, sufficiently and fairly supports a finding of guilt beyond a reasonable doubt. Durenleau, 163 Vt. at 10,652 A.2d at 982. By modifying evidence, we mean exculpatory evidence introduced by defendant, such as countervailing testimony. See United States v. Kelley, 152 F.3d 881, 886 (8th Cir.1998) (in ruling on a motion for a judgment of acquittal, which tests the sufficiency of the evidence, the court must determine whether there is substantial evidence justifying an inference of guilt, "irrespective of any countervailing testimony that may be introduced"); United States v. Wolfson, 322 F.Supp. 798, 806 (D.Del.1971) (in ruling on a motion for a judgment of acquittal, the court must determine whether there is substantial evidence justifying an inference of guilt, "irrespective of the evidence adduced by the defendant"). Moreover, credibility determinations are for the jury, not the court. See Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

¶ 15. The testimony of Carolyn Rivers introduced by defendant was in the nature of an alibi. See State v. Ovitt, 126 Vt. 320, 327, 229 A.2d 237, 242 (1967) ("By an alibi the accused attempts to prove that he was at a place so distant from the scene of the offense that his participation in the crime was impossible."). We have routinely treated alibi testimony as modifying evidence that does not prevent a case from going to the jury. See State v. Dezaine, 141 Vt. 335, 338, 449 A.2d 913, 914 (1982); State v. Parker, 139 Vt. 179, 182, 423 A.2d 851, 852 (1980); State v. Ladabouche, 127 Vt. 171, 173, 243 A.2d 769, 771 (1968); State v. Howard, 108 Vt. 137, 145, 183 A. 497, 500-01 (1936). Although the jury could reconcile the Rivers testimony with that of witnesses who saw defendant on Hardwood Hill Road towards 11:30 A.M., it could also find a conflict in the testimony. Whether or not there was a conflict, the jury could find that Rivers was mistaken in her time estimates.

¶ 16. We conclude that we must similarly treat the testimony of Daniel Parsons, the...