State v. McGee, 92-364

• Decision Date: 13 January 1995
• Docket Number: No. 92-364,92-364
• Citation: 163 Vt. 162,655 A.2d 729
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Ronald McGEE.

Page 729

655 A.2d 729

163 Vt. 162

STATE of Vermont v. Ronald McGEE.

No. 92-364.

Supreme Court of Vermont.

Jan. 13, 1995.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

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

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

GIBSON, Justice.

Defendant Ronald McGee appeals his first-degree murder conviction for killing William Bessette while perpetrating an attempted robbery, 13 V.S.A. § 2301. ^* He argues for reversal based on several asserted errors in the trial court's instructions to the jury and the court's denial of his motion for judgment of acquittal. We affirm.

In the early morning hours of June 4, 1991, William Bessette was shot and killed outside the home of Ann Barbour in Essex Junction, Vermont. Barbour operated a "crack house," which defendant and his brother, Leroy, visited on occasion. Barbour had informed defendant that she believed Leroy had stolen some of her cocaine, and that she had hired Bessette to retaliate by harming Leroy. Concerned for Leroy's safety, defendant, accompanied by his brother-in-law Samuel Hudson, and two friends, David Shelby and Timothy Roarda, visited Leroy late in the evening on June 3 to warn him of Bessette's impending visit. After speaking with Leroy, defendant and his companions drove to Barbour's home, and en route, devised a plan to steal Barbour's cocaine.

According to the plan, defendant would enter Barbour's home, converse with the others, and determine where Barbour kept her cocaine cache. Hudson and Shelby would stay outside the house, while Roarda remained by the car to keep lookout and serve as the getaway driver. When defendant believed the time was right, he would signal Hudson and Shelby to enter the home. Defendant and Hudson would hold the occupants at gunpoint while Shelby would take the drugs, whereupon the three would escape to the car and drive off with Roarda.

As often happens in these situations, the scheme went awry. Defendant and his cohorts arrived at Barbour's home as planned to steal the cocaine. Defendant, armed with a concealed handgun, knocked and entered the residence. Hudson, who was carrying a rifle, remained outside the house with Shelby, and Roarda waited by the car. Once inside the home, defendant encountered Barbour and Bessette, as well as Daniel Langevin, and two others. Barbour offered defendant some cocaine, which defendant accepted. Defendant spoke with Barbour about Leroy's situation, attempting to convince her not to send Bessette after Leroy. Barbour refused to call off Bessette, but agreed that defendant could accompany Bessette to visit Leroy. Defendant remained inside the home for some forty-five minutes while his accomplices remained outside awaiting defendant's signal.

Shelby grew impatient with the apparent delay and decided to investigate. He entered Barbour's home under an assumed name, used cocaine with the other occupants, and took defendant aside, suggesting to him that they forget about robbing Barbour. Defendant replied, "No." Shortly thereafter, defendant, Shelby, Bessette and Langevin left Barbour's house. When they stepped outside, they encountered Hudson with his rifle in hand. At this point, defendant told Hudson, "Come on, let's go."

Accounts of what happened next differed at trial. Langevin and Shelby testified that Hudson put his rifle against Bessette's back as Bessette walked by him, which ultimately caused Bessette to draw his gun and aim it at Hudson. According to these witnesses, defendant then shot Bessette. Defendant and Hudson, however, testified that Bessette, upon seeing Hudson, immediately pulled his gun and yelled, "Nigger you're dead!" whereupon defendant drew his gun and shot Bessette.

After the shooting, defendant returned to Barbour's home. He told Barbour that Bessette had become excited and that he was concerned about Bessette's behavior. Defendant did not tell her about the shooting. He subsequently left the home and went to the car to meet Hudson, Shelby and Roarda. On the way out, defendant encountered Langevin standing next to Bessette's body. Defendant grabbed Langevin and told him not to tell anyone what had happened.

Defendant then joined his three accomplices in the car. Shelby asked defendant if he had gotten the cocaine, and he responded that he had returned to the house to try to do so, but had not succeeded. The four circled the block once and drove off. Roarda testified that he drove around the block before leaving because defendant and Shelby had urged him to return to Barbour's home for the cocaine. Roarda stated that after circling the block he decided against stopping and chose to drive on.

I.

Defendant argues that the court erred in denying his motion for judgment of acquittal because the State failed to establish that he killed Bessette while perpetrating an attempted robbery. He claims that the attempted robbery had ended by the time he left the house and that the felony-murder charge should therefore have been dismissed. In reviewing the court's denial of defendant's motion, we consider "whether the evidence presented by the State, taken in the light most favorable to the prosecution, and excluding any modifying evidence, sufficiently and fairly supports a finding of guilt beyond a reasonable doubt." State v. Durenleau, 163 Vt. 8, ----, 652 A.2d 981, 982 (1994).

At trial, the State had to establish that Bessette was shot during an attempted robbery. An attempt requires intent to commit a particular crime and an overt act designed to carry out that intent. State v. Curtis, 157 Vt. 629, 631, 603 A.2d 356, 357 (1991). The act must advance the actor's conduct beyond mere intent, and reach far enough toward accomplishing "the desired result to amount to the commencement of the consummation." State v. Boutin, 133 Vt. 531, 533, 346 A.2d 531, 532 (1975).

Viewing the facts in the light most favorable to the State, the prosecution provided the jury with ample evidence from which it could reasonably conclude that defendant was engaged in attempted robbery when he shot Bessette, and that Bessette's death was a consequence of that attempt. Defendant crossed the line from merely preparing to rob Barbour, to engaging in the felony of attempted robbery when, intent on stealing Barbour's cocaine, he took the overt step of entering Barbour's home armed with a concealed weapon. He expressly rejected his accomplice's suggestion that he forget about stealing the cocaine, and after shooting Bessette, he returned to the home, the target of the robbery scheme, in a further effort to secure the cocaine. Regardless of whatever temporal gap defendant claims separated his attempted robbery from Bessette's killing, the State offered evidence that sufficiently and fairly supports a finding of guilt beyond a reasonable doubt. The court properly denied defendant's motion for a judgment of acquittal.

II.

Defendant claims that the court's instructions to the jury were erroneous in several respects, but did not object to the instructions at trial. Therefore, we review the court's instructions only for plain error. State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993). Reversal is required " 'only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights.' " Id. at 538, 632 A.2d at 26 (quoting State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986)).

A.

Defendant first takes issue with the court's omission of an element of attempted robbery, the felony underlying the first-degree murder charge. Defendant claims the jury should have been instructed to find beyond a reasonable doubt that ...