State v. McCarthy, 10–297.

• Decision Date: 04 May 2012
• Docket Number: No. 10–297.,10–297.
• Citation: 48 A.3d 616,2012 VT 34
• Parties: STATE of Vermont v. Joseph M. McCARTHY.
• Court: Vermont Supreme Court

48 A.3d 616

2012 VT 34

STATE of Vermont

v.Joseph M. McCARTHY.

No. 10–297.

Supreme Court of Vermont.

Motion for Reargument Denied June 11, 2012.

May 4, 2012.

Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Marshall Pahl, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

ROBINSON, J.

¶ 1. Defendant appeals from his conviction of involuntary manslaughter following a jury trial. Defendant set up a dangerous shooting range on his property and invited others to join him in firing weapons at the site. An errant bullet struck and killed a neighbor in his nearby home. Defendant argues that: (1) a jury view of the scene presented misleading and prejudicial evidence and was not conducted with the necessary procedural and evidentiary safeguards; (2) the trial judge impermissibly assumed the roles of an advocate and a witness in reviewing the jury view; (3) the court erred by failing to excuse one of the jurors; and (4) his conviction was not supported by sufficient evidence. We affirm.

¶ 2. Viewing the evidence in the light most favorable to the State as the prevailing party, the jury could have found the following. Defendant decided to set up a shooting range in his back yard. On September 23, 2008, he invited several friends to come shoot at the range. When the friends arrived at the mowed out area by defendant's house, at defendant's direction they set up the targets on several stumps. One of the friends brought over a shooting bench and placed it at the north side of the range. The direction from the bench to the targets was south by southwest. The distance between the bench and the targets was approximately forty-three yards.

¶ 3. Behind the target area was a stone and rock wall approximately one to two feet high. Several trees were slightly in front of the rock wall. Beyond the wall was a sparsely wooded area about 200 feet deep, and beyond that were open fields. The landscape to the south rose slightly and gradually, but there were no significant hills or anything else to act as a berm behind the wooded area.

¶ 4. Approximately 250 yards from the shooting bench, in the general direction of the targets, was a home belonging to the Reiss family. From the shooting bench, the difference in angle to the target versus to the Reiss home was only six degrees. The difference in elevation between a shot at the target and a shot at the Reiss home was less than two inches. As a consequence, if a shooter pointed the gun barrel three inches to the right of the target that was forty-three yards away, and just under an inch up, the shot would hit the neighbor's house.

¶ 5. The Reiss house was visible from a mowed path leading down to the shooting area. One of the members of the group noted the neighboring house, and defendant assured him that the trees and hills behind the targets made the shooting arrangement safe. By his own admission, defendant had no way of knowing whether he or his fellow shooters would consistently hit their targets, or whether either of his friends were good shooters. Defendant also acknowledged that he should have been aware of the fact that a bullet could go high and to the right, leaving nothing to stop it.

¶ 6. Members of the group took turns firing a variety of firearms, including rifles with maximum ranges of over two miles. One of these rifles was a SKS-style semi-automatic rifle. Three people, including defendant, fired the SKS. Although he had recently taken a hunter safety course, defendant himself had little experience with high-powered rifles.

¶ 7. Toward the end of the group's shooting session, the neighbor, John Reiss, was eating dinner in his home when he was killed by an errant bullet fired from defendant's shooting range. The fatal bullet was fired from the SKS rifle.

¶ 8. Defendant was charged with involuntary manslaughter. The information alleged that he unlawfully caused Reiss's death and acted with criminal negligence by setting up a shooting range in an inherently dangerous location and by allowing for the discharge of rifles in that location in violation of 13 V.S.A. § 2304. Following a jury trial, which included a site visit, the jury found defendant guilty. After the trial court denied his motion for a judgment of acquittal or a new trial, defendant appealed.

I.

¶ 9. Defendant first challenges the site visit conducted during the trial, as well as the surrounding proceedings. He argues that the court should not have allowed the visit under Vermont Rule of Evidence 403, that the visit itself was not conducted properly, and that in making its record of the site visit the trial judge impermissibly became a witness and advocate in violation of Vermont Rule of Evidence 605 and Vermont's Code of Judicial Conduct. We consider each argument in turn.

A.

¶ 10. In its motion for a site visit, the State explained that its trial evidence would focus largely on what defendant knew, or should have known, about the risks associated with the location of his shooting range. Critical to that analysis, the State asserted, was for the jury to be able to visualize the topography of the properties, the “backdrop” that defendant used for his shooting area and the surrounding area, the view of the Reiss property from various locations on defendant's property, and the general geographic surroundings. The State argued that the unique features of these scenes could not be fully conveyed through photographs, maps, or videos. The State acknowledged that the conditions at the respective properties had changed since September 2008, but argued that the changes would be so obvious that they would not mislead jurors or cause them to ignore evidence offered at trial.

¶ 11. Defendant opposed the State's request. He argued that a site visit would confuse and mislead the jury and unfairly prejudice him. Defendant asserted that the scene had not been preserved and that critical landmarks had either been moved or removed. He also noted that the view would occur in May, rather than September, which might give jurors misleading ideas about what was visible at the time of the incident. Defendant maintained that photographs of the scene were the best evidence and that the site view would be needlessly cumulative.

¶ 12. Following a hearing, the court granted the State's motion, concluding that a view would assist the jury in understanding the general geographic layout of the area; would allow the jurors to gain a full understanding of the evidence and the scene's unique features, which could not be entirely conveyed by other means; and would not unduly prejudice defendant since the purpose was not to “appeal to a jury's sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case.” State v. Bruyette, 158 Vt. 21, 31, 604 A.2d 1270, 1274 (1992) (quotation and alterations omitted). To the extent the scene had changed from the time of the events at issue, the court continued, it could curtail the risk of jury confusion by instructing the jury to keep in mind the other evidence presented at trial when viewing the conditions of the property.

¶ 13. Defendant challenges this ruling on appeal. He essentially reiterates his position below, arguing that there were material changes to the scene which could have misled or confused the jury. He also complains that a remedial instruction given by the court was not effective because it was not delivered “promptly” after the jury viewed the evidence and because the language used was “too weak to correct such a prejudicial error.”

¶ 14. The trial court has discretion in exercising its inherent power to allow or deny a request for a jury view, subject to the constraints of the Vermont Rules of Evidence. See Alberino v. Balch, 2008 VT 130, ¶ 8, 185 Vt. 589, 969 A.2d 61 (mem.) (recognizing that “the finder of fact may conduct a site visit or other analogous inspection, and may base its findings upon such examination together with all the evidence in the case” (quotation and emphasis omitted)); State v. Brown, 147 Vt. 324, 328, 515 A.2d 1059, 1062 (1986) (reviewing request for a jury view with respect to a crime that predated V.R.E. 403); see generally V.R.E. 402–403 (addressing admissibility of relevant evidence). The trial court's discretion to allow relevant but arguably prejudicial evidence is particularly broad because Rule 403 provides for exclusion only when the danger of unfair prejudice substantially outweighs the probative value. State v. Lee, 2005 VT 99, ¶ 11, 178 Vt. 420, 886 A.2d 378. Unless the trial court either totally withheld its discretion or exercised it “on clearly untenable or unreasonable grounds,” the trial court's evidentiary ruling will stand. Id.

¶ 15. As set forth above, the trial court thoughtfully evaluated the potential value of a site visit in this case in which the topography and natural features of the site were of critical importance. The court recognized that there would be changes to the scene, but found that the changes would be obvious and not prejudicial to defendant, and that any confusion could be addressed with a cautionary instruction. We cannot conclude that the trial court abused its discretion in reaching these conclusions. The court plainly “weighed the competing interests here and its conclusion was within its discretion.” State v. Wheel, 155 Vt. 587, 604–05, 587 A.2d 933, 944 (1990); see also Ledford v. State, 289 Ga. 70, 709 S.E.2d 239, 254 (2011) (holding that, despite changes at crime scene, trial court did not abuse its discretion in allowing jury site visit in capital murder trial “because the scene view might have aided the jurors in their understanding of the evidence despite...