State v. Johnson

• Decision Date: 22 May 1992
• Docket Number: No. 90-578,90-578
• Citation: 615 A.2d 132,158 Vt. 508
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Roy JOHNSON.

Page 132

615 A.2d 132

158 Vt. 508

STATE of Vermont v. Roy JOHNSON.

No. 90-578.

Supreme Court of Vermont.

May 22, 1992.

William Sorrell, Chittenden County State's Atty., and Pamela Hall Johnson, Deputy State's Atty., Burlington, for plaintiff-appellee.

Charles Martin of Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, Justice.

Defendant appeals from a first-degree murder conviction. He argues that (1) the evidence, when viewed most favorably to the State, failed to establish causation; (2) the trial court's instructions regarding malice and evidence of other crimes constituted plain error; (3) the court committed reversible error by allowing a sequestered juror to return from emergency leave without determining whether he had been prejudicially influenced against defendant; (4) the court's examination of an expert witness put into doubt the impartiality of the trial; and (5) the conviction is void because due process requires that a charge carrying a life sentence be brought by grand jury indictment rather than by information. We affirm.

I.

Defendant contends that the court erred by not granting his motion for judgment of acquittal because the evidence was insufficient for the jury to conclude that his conduct proximately caused the victim's death. Viewing the evidence in the light most favorable to the State, and excluding the effect of modifying evidence, State v. Papazoni, 157 Vt. 337, ----, 596 A.2d 1276, 1276 (1991), we conclude that there was sufficient evidence for the jury to find causation.

Aside from the testimony of the state medical examiner, most of the direct evidence in the case was supplied by an eye witness, who recounted a sequence of bizarre events culminating in the abandonment of the victim in the Lamoille River. In the early morning hours of May 31, 1989, following a night of imbibing alcohol and driving from one location to another, defendant, the victim, and the witness arrived at a spot along the river. Defendant, who allegedly had already attempted to asphyxiate the victim only an hour or so earlier, drove his car into the victim soon after they arrived. Apparently, the victim was bruised and in pain but not seriously injured.

Defendant then pushed the victim into the river. As the victim stood in two or three feet of water, defendant threw an eight- or nine-inch rock at him, and was about to throw another larger rock when the witness intervened. Shortly thereafter, defendant threw the victim's wallet farther out into the river, purportedly to induce him to proceed deeper into the water. Defendant knew that the victim was in his sixties, in poor health, gullible, and drunk. He also knew that the victim believed the wallet contained a significant amount of money. The victim did indeed swim farther out into the cold water. Failing to retrieve the wallet, he remained afloat by clinging to a branch of a half-submerged tree that extended into the river. Defendant rejected a suggestion that they rescue the victim, stating, "He's history. He knows too much." Apparently, this statement was in reference to a crime spree of the preceding days, in which defendant had the victim write worthless checks for a variety of valuable items. Defendant and the witness left, and sometime that morning the victim drowned.

A person is responsible for a death proximately caused by criminal conduct, even though the person's conduct was not the immediate cause of death. United States v. Guillette, 547 F.2d 743, 749 (2d Cir.1976). When the immediate cause of death is the natural result of the accused's conduct, the chain of direct legal causation remains unbroken. Id.; State v. Yudichak, 151 Vt. 400, 403, 561 A.2d 407, 409 (1989). This principle applies even when the victim sets in motion the immediate cause of death. Accordingly, "if a person acting on a well grounded and reasonable fear of death or bodily injury induced by an accused's threats or actual assaults, dies in an attempt to extricate himself from the danger, the accused bears criminal liability for the death." Guillette, 547 F.2d at 749 (defendants criminally responsible for victim's death, even assuming victim planted the bomb that killed him to protect himself from defendants' attempts to dissuade him from testifying); see also State v. Myers, 7 N.J. 465, 475, 81 A.2d 710, 715 (1951) (first-degree murder conviction upheld where wife jumped into river and drowned after husband struck her several times and told her to jump in).

We recognize that the witness was intoxicated at the time these events took place, that he interacted with the other two men throughout the entire episode and may have had reason to inculpate defendant, that cross-examination brought to light many inconsistencies in his story, and that he testified that he believed the victim did not want to return from the river and was sitting in the tree waving goodbye as the other two men left. Assessing the credibility of witnesses, however, is the province of the jury, State v. Jost, 127 Vt. 120, 128, 241 A.2d 316, 322 (1968), and there was ample evidence for a reasonable jury to conclude that, to silence the victim, defendant intended to cause his death by luring or frightening him into the river in his inebriated condition. Not only was there evidence of a motive for the killing, but there was also evidence that defendant had attempted to kill the victim earlier by asphyxiation, and that the victim's body had bruises and abrasions that could have been caused by an automobile driven at a slow speed. Given this evidence, the jury could have concluded that, even if the victim had an opportunity to return to shore, he was afraid to do so for fear of defendant, and that his death was the natural result of defendant's conduct.

Defendant correctly points out that "the causal connection between the death of the decedent and the unlawful acts of the [defendant] cannot be supported on mere conjecture and speculation." State v. Rounds, 104 Vt. 442, 457, 160 A. 249, 254 (1932). In Rounds, there was some question as to whether the decedent died from blows suffered in a fistfight a month earlier or from injuries resulting from a fall out of his hospital bed. Noting that some of the defendant's blows had been struck in self-defense, the Court concluded that there was no competent evidence tending to establish that death resulted from any "unlawful" blows. Id. at 455-56, 160 A. at 253. Here, the evidence, not mere conjecture, supports the reasonable conclusion that defendant intended to cause the death of the victim. See Papazoni, 157 Vt. at ----, 596 A.2d at 1277 (despite reasonable possibility that victim of vehicular homicide was attempting to commit suicide, there was sufficient evidence for jury to conclude that death resulted from the defendant's recklessness); State v. Norton, 147 Vt. 223, 231, 514 A.2d 1053, 1058 (1986) (although no witness observed victim's death, evidence was sufficient for jury to find that the defendant forced victim over edge of quarry to his death).

II.

Next, defendant argues that parts of the court's charge constituted plain error. There are no precise criteria for determining whether plain error exists. See State v. Ross, 152 Vt. 462, 474, 568 A.2d 335, 342 (1989) (Morse, J., dissenting); 3A C. Wright, Federal Practice and Procedure § 856, at 337 (2d ed.1982) ("the cases give the distinct impression that 'plain error' is a concept appellate courts find impossible to define, save that they know it when they see it"). In general, we must examine the record in each case, and determine whether the error is so prejudicial that "it undermines confidence in the outcome of the trial." United States v. Sblendorio, 830 F.2d 1382, 1388 (7th Cir.1987) , cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988); see United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (reviewing court must evaluate claim of plain error against entire record of case). Only in extraordinary cases will we find plain error. State v. Mecier, 145 Vt. 173, 178, 488 A.2d 737, 741 (1984).

A.

Defendant first contends that the court committed plain error by allowing the jury to consider defendant's failure to rescue as evidence of malice or intent to kill. The challenged charge reads as follows:

The law imposes no general duty to rescue. Hence if Defendant was not responsible for the victim's peril, but merely failed to attempt a rescue, such failure does not constitute any crime charged in this case. Although not a crime, you may consider any failure to rescue as possible evidence of malice or intent if you conclude that Defendant had the capacity, means and ability to make a rescue.

We agree that the last sentence was inaccurate because if the jury had concluded that defendant was not responsible for the victim's peril, defendant would not be guilty of the charged crime and there would be no need to consider whether malice or intent was present. Nevertheless, there was no plain error. This particular charge followed a detailed statement by the court explaining that the jury must find that defendant's conduct was both the cause in fact and the proximate cause of the victim's death. The jury could not reasonably have construed the charge as a whole to mean that defendant could be criminally responsible for his failure to rescue even if he did not put the victim in peril. Given this conclusion, it would have been proper for the jury to consider defendant's failure to rescue in determining whether defendant intended to kill the victim. See State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988) ("Intent is rarely proved by direct evidence; it must be inferred from a person's acts and proved by circumstantial evidence."); see also 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.2(b), at 193 (1986) (intent to kill must be gathered from killer's actions and words in...