State v. Herrick
| Decision Date | 12 August 2011 |
| Docket Number | No. 2010-252,2010-252 |
| Court | United States State Supreme Court of Vermont |
| Parties | State of Vermont v. Trevor Herrick |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press.
Marc D. Brierre, Rutland County State's Attorney, Rutland, for Plaintiff-Appellee.
William A. Nelson, Middlebury, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1. JOHNSON, J. Defendant appeals from a conviction, after jury trial, of second-degree murder and a sentence of imprisonment for twenty-two years to life. Defendant, who was romantically involved with the victim's wife, fatally stabbed the victim following a verbal and physical altercation. Just as the jury entered the courtroom to be sworn, three people walked in wearing t-shirts memorializing the victim. Following general and individual voir dire, defendant moved for mistrial, which the trial court denied. On appeal, defendant argues: (1) the trial court's failure to instruct the jury to consider defendant's individual characteristics in connection with its "adequate provocation" charge for the mitigating defense of passion-provocation manslaughter was plain error, and (2) the court erred in denying defendant's motion for mistrial when the jury was exposed to potentially prejudicial extraneous influence and the court's post-voir dire findings did not eliminate the possibility that jurors were in fact influenced. We affirm.
¶ 2. Defendant had been involved in a romantic relationship with the victim's wife for about four or five years. On the morning of April 20, 2009, defendant received a message with a telephone number. When he called the number, he reached the victim, who told defendant to meet him at 2:35 p.m. that afternoon in the parking lot of a Rutland shopping mall.
¶ 3. Defendant got a knife with a three-and-one-half inch blade and a pistol from his home before heading to the designated meeting spot. When he arrived, the victim was already there. The victim told defendant he just wanted to talk to him—he wanted to know how defendant felt about his wife. When defendant replied that he had "feelings" for her but was not going to explain himself or apologize, the victim began calling defendant names and telling him he was immature. In fact, defendant was thirty-five years old, while he estimated that the victim was about fifty years old.
¶ 4. Both men yelled at each other angrily. The victim got in his truck but then jumped out again, coming close to defendant, who was near the door of his own truck. They continued to yell at each other. Defendant pointed his finger at the victim's face but did not touch him. The victim pushed defendant's left shoulder "enough to toss [him] back." Defendant, who believed "nobody [had] the right to do that to [him]," drew his knife from its sheath and stabbed the victim in the back. The victim stepped back and then said, "I'm going to kill you," coming at defendant again. Defendant stabbed the victim a second time.
¶ 5. Defendant put the knife down in the truck, grabbed his cell phone, and called 911. Two people came to ask if everything was all right, and defendant told them that he had stabbed the victim in an altercation. The victim was taken to the hospital, where he was pronounced dead. The medical examiner concluded that the victim died as a result of the stab wounds, one of which pierced his aorta. Defendant gave a full confession to the police. He was charged with murder in the second degree.
¶ 6. Just as the jury entered the courtroom for the first time on the first day of trial, three people walked into the courtroom wearing green shirts bearing the statement "In Loving Memory of [Victim]." The court immediately sent the jury out again. The court and counsel then recited what had happened for the record. After ordering the three individuals not to display the shirts while in the courtroom, the court called the jurors back in.
¶ 7. The court asked the jurors if anyone had seen or observed anything that could affect his or her ability to sit fairly and impartially in the case. All the jurors responded that they had not. The State asked the jury if anything else that they had seen or heard or had contact with had "influenced [their] ability to be fair and impartial to both sides." All answered no. Defense counsel then asked the jury directly if any member had observed the gallery when they walked in to take their seats. Three jurors raised their hands.
¶ 8. At counsel's request, the court agreed to segregated voir dire of the three jurors who indicated that they had seen the gallery. The first juror questioned confirmed that she had noticed three women wearing green t-shirts with the last name of the victim on them but reported that what she had seen would not affect her ability to be fair and impartial. The second juror stated that she had noticed shirts with the last name of the victim. She believed the shirts were purple. She promised that what she had seen would not affect her ability to be a fair and impartial juror. When asked whether she had shared her observations with the other jurors, she remarked that "all [the jurors] were kind of mentioning it" and that "[o]ther people had noticed it, too, but didn't think anything of it." She clarified that while it was mentioned, the jurors had not discussed it. The third juror questioned reported that he had not seen anything—he had not intended to raise his hand.
¶ 9. Based on the second juror's statements, defense counsel requested individual voir dire of the other eleven panel members, which the court permitted. Six of these had noticed individuals wearing green t-shirts in the gallery. Only one juror reported reading any of the writing on the green shirts. None of the jurors indicated that their impartiality had been affected by the shirts, if they had seen them, or by any comments about the situation.
¶ 10. Defense counsel moved for a mistrial, citing the fact that many jurors who had seen the green shirts had not raised their hands initially, the possibility that they had done so intentionally, and the discrepancy between the second juror's recollection that everyone mentioned the shirts and what the subsequent jurors reported. The court denied the motion on the record. It emphasized that they had done individual voir dire of each of the jurors, and all the jurors had said that nothing they might have seen, if they had seen anything, would influence, bias, or otherwise affect their ability to serve as fair and impartial jurors. The court gave a preliminary limiting instruction to the jury, explaining that it must decide the facts based on the evidence presented at trial and that observations of matters within or outside the courtroom are not evidence.
¶ 11. During trial, defendant raised a mitigation defense of passion-provocation manslaughter. The court instructed the jury accordingly. Defendant did not object to the court's jury charge regarding adequate provocation mitigating the second-degree murder to voluntary manslaughter. The jury convicted defendant of second-degree murder, and he was sentenced to a term of twenty-two years to life. This appeal is automatic pursuant to Vermont Rule of Appellate Procedure 3(b)(2).
¶ 12. We first address defendant's second argument: that the court erred when it denied defendant's motion for mistrial after the jury was exposed to a potentially prejudicial extraneous influence and that the court's findings following voir dire did not eliminate the possibility that jurors were in fact influenced. Defendant relies on the discrepancy between the comment of the second juror questioned that "all [the jurors] were kind of mentioning it" and the assurances from jurors during the individual voir dire that they had not discussed anything regarding the t-shirts. While we agree that defendant, like all criminal defendants, has a constitutional right to trial by an impartial jury, U.S. Const. amend. VI; Vt. Const. ch. I, art. 10; see also State v. Sharrow, 2008 VT 24, ¶ 6, 183 Vt. 306, 949 A.2d 428; State v. Woodard, 134 Vt. 154, 158, 353 A.2d 321, 323-24 (1976) (), a motion for mistrial was not technically correct in these circumstances because the jury had not yet been impaneled. Cf. State v. Corey, 151 Vt. 325, 330, 561 A.2d 87, 89 (1989) (). Defendant should have filed challenges to individual jurors for cause. See V.R.Cr.P. 24(b) (). This makes no difference, however, to our decision to uphold the trial court.
¶ 13. Here, the trial court concluded that the irregularity had no effect on the jury and denied defendant's motion for mistrial. The proponent of a motion for mistrial must show that an irregularity—anything creating any suspicion of extraneous influences—was capable of influencing jury deliberations. State v. Schwanda, 146 Vt. 230, 232, 499 A.2d 779, 781 (1985). If an irregularity is shown, to avoid a mistrial, the opposing party must show that the irregularity in fact had no effect on the jury. Id. at 232, 499 A.2d at 781-82.
¶ 14. The trial court conducted both general and individual voir dire of the jury to determine whether or not the t-shirts had in fact created bias among the jurors. See State v. FitzGerald, 165 Vt. 343, 350, 683 A.2d 10, 15 (1996) (...
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