State v. Hamlin

• Decision Date: 05 July 1985
• Docket Number: No. 82-339,82-339
• Citation: 146 Vt. 97,499 A.2d 45
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Louis A. HAMLIN III.

Page 45

499 A.2d 45

146 Vt. 97

STATE of Vermont v. Louis A. HAMLIN III.

No. 82-339.

Supreme Court of Vermont.

July 5, 1985.

Reargument Denied Aug. 15, 1985.

Susan L. Fowler, Chief Deputy State's Atty., and James Carroll, Law Clerk (on brief), Burlington, for plaintiff-appellee.

Christopher L. Davis and Robin M. McCormick (on brief), of Gear and Davis, Inc., Burlington, and Valsangiacomo, Detora & McQuesten, P.C., Barre, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

PECK, Justice.

Defendant appeals his convictions of first degree murder and aggravated sexual assault following a jury trial in Windsor Superior Court. He also appeals the sentence he received on the charge of first degree murder. We affirm.

On May 15, 1981, the defendant, then sixteen years old, and a fifteen-year-old companion seized two girls, ages twelve and thirteen, as the girls walked through a wooded shortcut on their way home from school. The defendant and his friend covered the girls' mouths and dragged them off the path and into the woods. The two boys had BB guns and told the girls to keep quiet or they would be shot.

The defendant began choking the thirteen-year-old girl, forcibly removed her clothes, and attempted both vaginal and anal intercourse. He shot a BB or pellet into the back of the twelve-year-old as she lay on the ground, and stomped on her back with his boot. The defendant said to the thirteen-year-old girl, "Now you are going to know what it's like to be slaughtered like a pig and shot five times." The girls were then dragged to another spot in the woods where they were gagged and their arms bound. The defendant shot the thirteen-year-old in the side of the neck with a BB gun, and she heard him ask, "Where's the knife?" She felt a sharp pain in her back but was unable to see who inflicted it; shortly thereafter she lost consciousness. During these events, the defendant's companion had also participated in physical and sexual assaults upon both girls.

When the older girl recovered consciousness, she was bleeding, still unclothed, and still bound and gagged; her assailants had gone. She was not able to locate her twelve-year-old friend, so she walked down a path and was discovered by an employee of the Central Vermont Railway and rushed to the Medical Center Hospital of Vermont. After a brief search of the wooded area, police officers found the lifeless body of the twelve-year-old girl still bound and gagged.

An autopsy on the body of the murdered child disclosed evidence of choking, blunt impact injuries, BB-type gunshot wounds, at least five stab wounds, and shallow incisions characterized by the state medical examiner as "teasing wounds." The medical examiner determined the cause of death to be a stab wound to the left chest which punctured the heart.

On May 20, 1981, the thirteen-year-old girl identified photographs of the defendant and his younger companion as the attackers. Both were arrested in the early morning of May 21, 1981. The defendant was charged with first degree murder and aggravated sexual assault. His companion could not be charged in the criminal courts because he was under the age of sixteen; juvenile delinquency proceedings were instituted against him.

At trial, four witnesses testified to admissions made by the defendant. About a week after the death of the younger girl, the defendant and his companion met two young women with whom they were acquainted. The conversation turned to the subject of the killing. Both women testified that the defendant said, "Actually, we did it," referring to the killing. His companion admonished the defendant to keep quiet.

In August of 1981, the defendant was incarcerated in the maximum security wing of the St. Albans Correctional Center. A guard testified at trial that he heard the defendant tell another inmate that, "I killed the girl. I figure I owe 10 years. I'm going to tell the judge I owe 10 years, and that's all I'm going to serve." Further, an inmate of the correctional center testified that he overheard the defendant tell another inmate that he, the defendant, had killed a girl; that he stabbed her in the chest twice and in the back once. The inmate further testified that he heard the defendant say that he shot his victim and that he would kill his companion for "ratting him out."

The facts summarized are descriptive of the general events which form the basis for the charges of first degree murder and sexual assault. Subsequent sections of this opinion will supplement these facts with the additional facts underlying defendant's specific claims of error.

I.

Defendant contends that during closing argument the state's attorney made an impermissible comment on his decision not to testify at trial. He argues that this constituted a violation of his privilege against compelled self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.

During the State's rebuttal argument, the state's attorney addressed the jury as follows:

We did a very unusual thing in this case. Very unusual thing. We don't often do that in criminal cases. We proved the defense attorney was wrong and we proved the defendant was right. The reason I say that is because Louie as he sits here knows he's guilty. He's sitting right here, he knows he's guilty. And the reason why Louie knows he's guilty is because he said that. When Lori Comstock and Evelyn were there on the bridge, what did Louie say? Actually we did it and laughed. Right, Louie ? And then--(emphasis added).

Defendant's counsel promptly objected to the language emphasized above; the prosecutor apologized to the court and the jury; and the court immediately admonished the jury to "completely disregard that and put it completely out of its mind."

During an in-chambers conference following closing arguments the defendant moved for a mistrial or, if that motion was denied, for curative instructions. The court denied the motion for mistrial. Nevertheless, in its charge to the jury, the court referred to the state's attorney's remark, admonished him, then questioned the jury directly as to their ability to disregard the remark. The court then asked that if any juror had any reservation as to his ability to disregard the remark "will you please raise your hand at this time." The record indicates that no juror raised a hand. The court then concluded this phase of the charge: "And so I say to you, and I must re-emphasize because of the unfortunate error ... that defendant ... has not taken the stand to testify, and in no way are you to infer his guilt or even discuss that fact within the jury room."

After the jury returned guilty verdicts on both charges, the defendant filed a motion for a new trial. One of the grounds stated for the motion was the trial court's failure to grant defendant's motion for a mistrial based on the state's attorney's alleged improper comment on defendant's Fifth Amendment right to remain silent. After a hearing, the court denied the motion for a new trial.

In stating its reasons for denying the defense motion for a new trial, the court indicated that, based on its recollection, the prosecutor did not physically point at defendant nor did he lean over defendant or act in any menacing manner toward the defendant at the time the "Right, Louie" statement was made.

The defendant appeals the court's denial of the motion for a new trial.

A question involving the Fifth Amendment raises an issue of federal law. Therefore, it requires us to analyze the alleged error in light of the relevant decisions of the United States Supreme Court. State v. Badger, 141 Vt. 430, 438, 450 A.2d 336, 341 (1982). Thus, in reviewing a claim of error under the Fifth Amendment we place ourselves in the position of a federal court of appeals. Id.

In United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), the Court considered a situation where, in summation before the jury, the prosecutor commented on the fact that the defendants never presented any evidence. Id. at 502, 103 S.Ct. at 1977. The United States Court of Appeals for the Seventh Circuit had reversed the convictions, because of what it perceived as a Fifth Amendment violation, and remanded the case for a new trial. 660 F.2d 301, 303 (7th Cir.1981). The United States Supreme Court never expressly indicated whether or not the prosecutor's comments violated the defendant's Fifth Amendment rights as set forth in earlier cases, see Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), but applied the harmless error doctrine announced in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), and Hasting, supra, at 510-12, 103 S.Ct. at 1981-82.

Griffin and Chapman both involved direct and unequivocal comments on defendants' failure to testify. The comments in Hasting, like the prosecutor's remark in the instant case, were more equivocal to the extent they were not direct in referring to failures to testify. However, both parties agree that the first issue is whether or not the remark "Right, Louie?" constituted an improper comment on the defendant's right to remain silent.

A.

The test for evaluating alleged comments on a defendant's failure to testify, adopted by the overwhelming majority of federal circuit courts of appeals, considers whether the remark was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify. See, e.g., Hearn v. Mintzes, 708 F.2d 1072 (6th Cir.1983); United States v. Hartley, 678 F.2d 961 (11th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983). We have recognized this as the appropriate test for analyzing whether a prosecutor's remarks infringed upon defendant's Fifth Amendment privilege against self-incrimination. State v. Kasper, 137 Vt. 184, 209, 404 A.2d 85, 99 (...