State v. Kulzer

• Decision Date: 24 July 2009
• Docket Number: No. 07-075.,07-075.
• Parties: STATE of Vermont v. Peter L. KULZER.
• Court: Vermont Supreme Court

979 A.2d 1031

2009 VT 79

STATE of Vermont v. Peter L. KULZER.

No. 07-075.

Supreme Court of Vermont.

July 24, 2009.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Charles S. Martin and Peter Abbarno (on the Brief) of Martin & Associates, Barre, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and BURGESS, JJ., and DAVENPORT, Supr. J., Specially Assigned.

¶ 1. JOHNSON, J.

Defendant appeals his conviction following a jury trial for second-degree murder. On appeal, defendant raises two issues. First, defendant argues that the trial court erred by allowing a witness for the prosecution to comment on his invocation of the privilege against self-incrimination set forth by the Fifth Amendment to the United States Constitution and Chapter 1, Article 10 of the Vermont Constitution. Second, defendant contends that the trial court committed plain error by failing to instruct the jury regarding the lesser included offense of voluntary manslaughter. We affirm.

¶ 2. Viewed in the light most favorable to the jury's verdict, the record reveals the following facts. Defendant lived with his son in Readsboro, Vermont. The victim was defendant's son's close friend and lived nearby.

¶ 3. According to defendant's son's testimony, his relationship with his father was tumultuous due to his father's shifting views on the military. Defendant's son joined the Army in 2002 with his father's encouragement and was deployed in Iraq from February 2003 until March 2004. At home on leave, defendant's son learned that his father no longer supported the war, and the two began to argue over his military service.

¶ 4. Defendant's son received an honorable discharge from the Army in September 2004. By mid-February 2005, he had returned to Readsboro to live with his father. He testified that being a civilian for five months made him realize that he missed his military career. When he learned that the victim had enlisted in the Marines, he was eager to enroll as well through the buddy system. On March 12, 2005, he shared with defendant his plan to join the Marines. This disclosure precipitated angry yelling, with defendant exclaiming that his son was "committing suicide." That evening defendant's son spent the night at the victim's home.

¶ 5. On March 13, 2005, defendant's son and the victim enjoyed a leisurely afternoon playing video games. The two friends headed to defendant's home to retrieve a particular game. The victim drove, and he waited in the car while defendant's son went inside. Once inside, defendant's son encountered his father and reiterated his intention to join the Marines. Defendant then brandished a pistol at his son. Defendant's son started walking outside, and defendant, with the gun in his hand, followed. Defendant's son reached the car and started to open the passenger-side door. Defendant warned him not to enter the car and then shoved his son, who stumbled into a snow bank. Defendant's son testified that he then heard the victim exclaim, "No, no, no!" followed by a gunshot.

¶ 6. Defendant's son managed to wrest control of the gun from his father, and defendant retreated into his home. In a state of hysteria, defendant's son telephoned the victim's father and then dialed 911 from his cellular phone. Because defendant's son informed them that defendant owned many guns, the paramedics, fearing another violent altercation, would not approach the scene. Although the victim was finally transported for medical care, the nineteen-year-old later died from his wounds.

¶ 7. Given the circumstances, the police also proceeded cautiously. One officer testified that he telephoned defendant's residence from the police barracks. Defendant answered the telephone, and, after stating his name and title, the officer said, "I heard there had been some trouble out there." The officer further related that defendant "advised he didn't want to talk to me about it." The officer's testimony did not describe defendant's repeated statements to the effect that the only person he would talk to was his lawyer.¹ The ostensible purpose of the telephone call was to ensure the safety of the police, other emergency responders, witnesses, and defendant. The officer, therefore, instructed defendant how to exit his home and surrender to the police, who were on their way to arrest him. Subsequently, defendant was arrested and read his Miranda rights without further incident.

¶ 8. Defendant did not testify at trial, and from the trial's beginning, the defense objected on constitutional grounds to any testimony regarding defendant's purported invocation of his privilege against self-incrimination during the telephone call with the police officer. On October 25, 2006, the defense filed a motion in limine to exclude certain evidence, including "[a]ll evidence that [d]efendant declined to speak to police about the alleged incident, invoked his right to counsel, and remained stoic or silent throughout the time he was with the police." Nevertheless, on November 3, 2006, the court made a preliminary ruling to allow the State to elicit testimony from the officer regarding defendant's invocation of the privilege during their conversation.²

¶ 9. Later that same day, however, the trial court revisited its decision to allow the officer to testify as to the entirety of his telephone conversation with defendant. The court asked the State for a proffer, and the State requested that the officer be allowed to describe his conversation with defendant—save for defendant's statements regarding talking to his lawyer. Defendant, for his part, expressed his belief that such testimony would impermissibly be "commenting on his invocation of [the privilege]" and would penalize him "for ... exercis[ing] [his] constitutional rights." Ultimately, the court accepted the State's proffer. It allowed the prosecution to elicit limited testimony from the officer who spoke with defendant over the telephone. See supra, ¶ 7 n. 1. According to the trial court, because defendant was not under arrest or otherwise in custody at the time he purportedly invoked his privilege against self-incrimination, the State could introduce the officer's testimony. The court, however, precluded the prosecutor from commenting on defendant's telephone conversation during closing argument.

¶ 10. Defendant was convicted of second degree murder, and this appeal followed. On appeal, defendant presents two claims, which we address in turn.

I.

¶ 11. Defendant contends that the trial court erred in allowing the prosecution to elicit testimony from the police officer regarding defendant's invocation of his privilege against self-incrimination. Neither the federal constitution nor the Vermont Constitution permits such testimony, defendant argues.

¶ 12. We note first that, contrary to the State's assertion, our decision in State v. LaCourse, 168 Vt. 162, 716 A.2d 14 (1998), is not controlling on the facts of this case. In LaCourse, we summarily held that, absent arrest or custody, a defendant's privilege against self-incrimination does not apply under either constitution. Id. at 166, 716 A.2d at 16. The defendant in LaCourse was tried for perjury. During the course of the trial, the prosecution elicited testimony from a government investigator who had called to question the defendant. There is no indication in the case that the defendant's arrest was imminent at the time of his conversation with the investigator. The investigator testified that the defendant refused to answer his questions and said that he "`should talk to [my] lawyer.'" Id. We found no error in the trial court's decision to admit this statement into evidence. Id. Here, unlike in LaCourse, defendant's arrest was imminent. In fact, the purported reason for the officer's telephone call was to tell defendant that the police were on their way to his home to arrest him and to instruct him on how to surrender safely. Thus, although both cases technically involve pre-arrest, pre-Miranda silence, we cannot say that LaCourse is controlling.

¶ 13. Nor is there controlling federal precedent. The United States Supreme Court has not ruled on this issue. See Jenkins v. Anderson, 447 U.S. 231, 236 n. 2, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (concluding that the prosecution may use a defendant's pre-arrest, pre-Miranda silence for impeachment purposes but explicitly withholding judgment on the issue of whether such silence may be used in the prosecution's case in chief where the defendant does not testify). The United States Courts of Appeals are split. The First, Sixth, Seventh, and Tenth Circuits have ruled that the federal constitution prohibits the prosecution from making substantive use of a defendant's pre-arrest, pre-Miranda silence. See Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.2000); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.1989); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir.1987). The Fifth, Ninth, and Eleventh Circuits, however, have ruled to the contrary. See United States v Oplinger, 150 F.3d 1061, 1067 (9th Cir. 1998); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991).

¶ 14. Our sister states that have considered the issue are likewise divided. A significant number have ruled, on either state or federal constitutional grounds, that the state may not introduce such silence during its case in chief. See State v. Moore, 131 Idaho 814, 965 P.2d 174, 180-81 (1998) (Fifth Amendment prohibits prosecution from introducing, in its case in chief, and for the sole purpose of implying guilt, evidence of a defendant's failure to appear at scheduled police interview); Commonwealth v. Thompson, 431 Mass. 108, 725 N.E.2d 556, 565 (2000) (concluding that where the defendant does not testify, federal...