State v. Larose

• Decision Date: 09 April 1980
• Docket Number: No. 277-78,277-78
• Citation: 415 A.2d 210,138 Vt. 281
• Parties: STATE of Vermont v. Ricky D. LAROSE.
• Court: Vermont Supreme Court

Page 210

415 A.2d 210

138 Vt. 281

STATE of Vermont v. Ricky D. LAROSE.

No. 277-78.

Supreme Court of Vermont.

April 9, 1980.

Dissenting Opinion April 16, 1980.

David G. Miller, Franklin County State's Atty., and Edward D. Fitzpatrick, Deputy State's Atty., St. Albans, for plaintiff.

James L. Morse, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, and Steven P. Dunham, Public Defender, St. Albans, for defendant.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and COSTELLO, District Judge, Specially Assigned.

BILLINGS, Justice.

This is an appeal from a conviction on July 24, 1978, of a violation of 13 V.S.A. § 1201, for a burglary during the nighttime of June 13, 1978, in Enosburg, Vermont. The two issues presented are whether the evidence is sufficient to support the verdict and whether the State established that the search of the defendant's bedroom was made with his voluntary consent.

In the early hours of June 13, 1978, a store window was smashed. A woman living across the street heard the noise and went to her window. She saw an individual continue breaking glass and enter through the break. Leaving her window and descending a flight of stairs, the witness emerged into a parking area adjacent to her residence where she secreted herself behind a car. Shortly thereafter, the witness saw an individual leave the broken store window and head across the street. While he crossed the street two other persons joined him. From her position, the witness saw the three approach her from the street, but did not see their faces. After the shadows of these individuals passed her, the witness peered over the car in the direction the three shadows had gone. There, in the dim light she saw only two individuals, one of whom had turned to expose his face. This was the only time at which the witness was able to identify any of the three individuals who had crossed the street from the burglarized store area.

The witness stated that she recognized the individual who had exposed his face as a person other than the defendant, and that she was familiar with that person. She also stated that this person was not the individual whom she had seen enter the nearby store. Moreover, the witness could not account for the disappearance of one of the three individuals. She did note that the person who broke into the store was shorter than the individual she identified and stated that the unidentified second person whose back she viewed from behind the car was shorter than the identified person. The defendant is shorter than the identified individual, but the witness could not say whether he was the individual who broke into the store.

The eyewitness testified that she could not and did not identify the defendant for the police as one of the three individuals she saw in the vicinity of the burglary. The police chief who arrested the defendant testified, however, that the eyewitness gave him "the name of one suspect that she knew and also helped . . . identify the second suspect involved." On cross-examination by the defense, however, the chief stated that the eyewitness had indicated to him that "one (of the suspects) she believed was the Larose boy living with" the identified individual. It was clear, however, that the eyewitness could not identify the defendant as one of the three she had seen near the scene of the crime at an informal and makeshift line-up conducted at the doorway of the defendant's apartment late on the night of the crime.

The other evidence which most strongly linked the defendant with the burglary is a set of sneaker prints made on a paper chart and counter top at the point of entry into the store which correspond with the treads of a pair of sneakers belonging to the defendant. These sneakers were found by police under defendant's bed at the apartment he shared with the identified individual and others.

Following the investigation of the scene of the crime, the police went to the apartment of the identified individual. It was without electric power and darkened. The occupants told the police that they had been swimming earlier in the evening and had been at home for the rest of the night. They also showed the police some of their shoes on request, but did not produce the sneakers in question. Upon request, the occupants refused to allow the police to search without a warrant. The chief informed them that he was going to get one and posted a guard at the front door of the apartment. No guard was posted on the fire escape at the rear of the apartment. While the chief was gone, the guard heard "shuffling" going on inside the apartment. By the time the chief returned, the defendant and the identified individual had told the guard outside the door that the police could search the bedrooms. The chief then filled out consent to search forms, one of which the defendant signed.

A search of the defendant's bedroom revealed a pair of sneakers underneath his bed. Their treads corresponded, upon expert comparison, with the tread marks found at the burglarized store. Moreover, the sneakers were damp, as were the cuffs of a pair of pants also found in defendant's bedroom. On the basis of this evidence and the chief's observation that his own shoes and pants were dampened by the heavy dew near the store, the defendant was arrested. At trial there was also testimony that the defendant was seen an hour or two before the break-in barefooted.

The dispositive question before this Court is whether these facts are sufficient to support the guilty verdict. For the State to have proven its case it must have established that the defendant broke and entered the store in the nighttime with the intent to commit larceny or other felony. 13 V.S.A. § 1201. The State must have established each and every one of these elements.

Our review of the evidence is governed by the standards of State v. Benoit, 136 Vt. 431, 432-33, 392 A.2d 406, 407 (1978), in which Mr. Justice Daley stated for the Court as follows:

To test the propriety of the trial court's denial of the defendant's motion for a judgment of acquittal, we determine whether the evidence, when viewed in the light most favorable to the State, fairly and reasonably supports the jury's finding of guilt beyond a reasonable doubt. State v. Bishop, 127 Vt. 11, 15, 238 A.2d 772, 774 (1968). Where the case is entirely circumstantial, we further subject the evidence to a second test of strict scrutiny. "(T)he circumstances proved must do more than create a mere suspicion of guilt, however strong . . . . The circumstances shown must exclude every reasonable hypothesis except that the respondent is guilty." State v. Goodhart, 112 Vt. 154, 158, 22 A.2d 151, 153 (1941) (citations omitted).

These standards require that this Court characterize the evidence linking the defendant to the store break-in. The State and the defendant are in agreement that most of the evidence is circumstantial. The State contends, however, that the police chief's admitted testimony that the eyewitness identified the defendant as one of the two individuals whom she saw after they walked by her place of concealment is direct evidence that the defendant broke and entered into the store.

In order for evidence to be considered direct evidence of an element of a crime, it must, if believed, prove the element without inference of any other fact. "Circumstantial evidence is that proof offered of certain facts and circumstances from which the trier of fact may, by way of a process of rational inference, conclude that the ultimate facts in dispute existed or did not exist." State v. Benoit, supra, 136 Vt. at 435, 392 A.2d at 408.

The testimony of the police chief on the eyewitness identification of the defendant in the parking area, if believed by the jury, is direct evidence that the defendant was one of two persons who walked from the street in front of the burglarized store into the adjacent parking area where the eyewitness was hiding. However, it is only circumstantial evidence that the defendant was the individual who broke and entered the store. In order for the jury to believe that the defendant did break and enter the store, it must have inferred from the presence of the defendant in the parking area and other evidence that he also was the person who broke into the store across the street, inasmuch as there is no evidence that he was identified in the process of committing the acts of breaking and entering. There was no direct evidence that the defendant did break and enter the store, even if the evidence is read in the light most favorable to the State, because the mere presence of a person near the scene of a crime does not establish that he participated in it. State v. Mecier, 126 Vt. 260, 262, 227 A.2d 298, 299 (1967). To the extent that State v. Burclaff, 137 Vt. 354, 404 A.2d 512 (1979), is inconsistent with this determination of whether evidence is direct or circumstantial, compare State v. Benoit, supra, with State v. Bourassa, 137 Vt. 62, 399 A.2d 507 (1979), and with the rule in State v. Mecier, supra, concerning the significance of the proof of presence to the proof of participation in a crime, it is overruled.

The circumstantial evidence linking the defendant to the crime, therefore, must be strictly scrutinized to determine whether the circumstances shown exclude every reasonable hypothesis except that the defendant is guilty. This determination may be made by ascertaining whether each element of the offense can be found and attributed to the defendant by a permissible inference from established facts.

If the police chief's statement that the eyewitness identified the defendant is believed, then the jury could infer that the defendant was the individual who broke into the store or that he was one of two other persons who met the burglar after the crime. The facts that the defendant is shorter than the other individual identified and that the eyewitness believed the...