State v. Miller

• Decision Date: 19 July 1985
• Docket Number: No. 83-279,83-279
• Citation: State v. Miller, 146 Vt. 164, 502 A.2d 832 (Vt. 1985)
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Timothy MILLER.

Page 832

502 A.2d 832

146 Vt. 164

STATE of Vermont v.Timothy MILLER.

No. 83-279.

Supreme Court of Vermont.

July 19, 1985.

Reargument Denied Sept. 13, 1985.

John J. Easton, Jr., Atty. Gen., Elizabeth Grant Rome and Robert V. Simpson, Jr., Asst. Attys.Gen., David Tartter and Karen Corti, Law Clerk (on brief), Montpelier and Susan L. Fowler, Chittenden County Chief Deputy State's Atty., Burlington, for plaintiff-appellee.

Andrew B. Crane, Defender Gen. and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before HILL, UNDERWOOD, PECK and GIBSON, JJ., and DALEY, J.(Ret.), Specially Assigned.

GIBSON, Justice.

Defendant appeals his conviction and sentence on a charge of second degree murder.Defendant raises six issues on appeal: (1)the State failed to prove defendant intentionally participated in a common criminal plan unlawfully to kill another human being; (2)the court erred in declining to instruct the jury that prior inconsistent statements of witnesses could be considered as substantive evidence, and not merely as impeachment; (3)the State's failure to disclose in a timely way certain prospective testimony was prejudicial error; (4)the court erred in rejecting defendant's requested jury instructions on accomplice liability; (5)the court erred in excluding evidence that defendant's alleged accomplice had been acquitted, and in instructing the jury that defendant could be convicted as an accessory, despite the alleged accomplice's acquittal; and (6) assistant judge participation in sentencing was unconstitutional.We affirm.¹

I.

Defendant first claims the State failed to prove that he intentionally participated in a common plan to murder Timothy O'Neal.The question on appeal is "whether the evidence, when viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt."State v. Derouchie, 140 Vt. 437, 445, 440 A.2d 146, 150(1981).

The evidence, taken in the light most favorable to the State, establishes the following.During the afternoon of April 8, 1982, the victim, Timothy O'Neal, cashed his paycheck and, possessing more than $200, began frequenting bars in the vicinity of the Champlain Mill, a shopping mall in Winooski.By evening, O'Neal was very drunk.Although not violent, he became a persistent nuisance at a bar called "Le Club."After several female patrons complained, Le Club's bartender expelled O'Neal, who returned twice more and was expelled each time.

Defendant and a companion, Richard Sorrell, were also patrons at Le Club.After O'Neal's third expulsion, Le Club's manager asked defendant and Sorrell, who were then standing outside, to take care of O'Neal and they agreed to do so.Soon thereafter, O'Neal entered Le Club again, to retrieve his coat.Defendant pursued him and pulled him outside before it could be found.

A service road ran between the Champlain Mill and Le Club, leading to a rear parking lot and service entrances.A cement abutment at the rear of the parking lot borders the Winooski River as it runs downstream to a waterfall.An irregular hole in the abutment permits access to the river bank.

Between 11:30 p.m. and midnight, shortly after defendant had pulled O'Neal out of Le Club, a witness saw defendant, O'Neal and Sorrell walking down the service road toward the river.Later, another witness saw two men walking together along the river bank, toward the falls, looking into the water.

Some time after midnight, defendant appeared at his sister's house, where he kept his clothes.When he arrived, defendant stamped his feet, as though his shoes were wet.Although testimony by the sister was sketchy and conflicting, the jury could reasonably have believed that defendant immediately shut the lights off.While there, he picked up pants, shirt and a pair of shoes, then left after about ten minutes.Two days later, he returned and vacuumed the floor of the house.

After leaving his sister's house with his change of clothing on the night of the crime, defendant next appeared at his girlfriend's apartment, noticeably favoring his shoulder.Asked by the occupants how he had gotten blood on the cuffs of his pants, defendant replied that he had been in a fight and broken the other person's nose.Defendant later said he'd had a fight with a black man at the Mill Restaurant.At another time he said he had fought two black men there.The Mill Restaurant was closed that night.

After changing his clothes, defendant gave the clothes he had been wearing to his girlfriend and asked her to wash them thoroughly.He then returned with Sorrell to Le Club, where the manager thanked them for helping "take care of the problem" of O'Neal.When the manager asked what had happened to O'Neal, defendant replied, "We lost him" and then volunteered: "He's pretty much of a ding-a-ling--he was always threatening to commit suicide."

Defendant and Sorrell began purchasing mixed drinks with large bills, buying drinks for others and leaving large tips.Earlier in the evening, they had purchased beers with exact change, leaving no tips.On the following day, defendant's brother noticed that, although defendant had been broke the day before, he now had money.

The next morning, Timothy O'Neal was discovered dead in the Winooski River.A trail of smeared blood, drag- and scuff-marks, scrapes and bruises, a lost sneaker and tears in O'Neal's trousers established that he had been pulled through the hole in the abutment and dragged, head first, face down, for a distance of about 55 feet, then placed in the river.His body snagged on a rock in the rapids above the falls, having been carried 75 yards downstream from the hole in the abutment.He had passed along the part of the river where the two men had been seen walking.There was no money in his wallet, and he wore no outer coat.

The cause of O'Neal's death was "asphyxia due to drowning" sometime between midnight and 3:00 a.m. Forensic examination determined that, before O'Neal was placed in the water, someone's arm had been wrapped around his neck in a choke hold, and that he had suffered three or four blows on the head with a large rock.The rock was found nearby, with several of O'Neal's hairs on it.O'Neal's hands had sustained injuries, apparently while fending off the blows.

Police investigators questioned defendant.Describing his own activities on the night in question, defendant identified several bars that he had visited but did not mention the Mill Restaurant.Nor did he mention visits either to his sister's or girlfriend's homes.He told the police that after a black man, standing with two other black men and a white woman in front of Le Club, warned him to leave O'Neal alone, he never saw O'Neal again.

After defendant's sister, girlfriend and other relatives were summoned to testify at an inquest, and after defendant learned of the inquest, he and Sorrell announced a trip to Canada and disappeared.Two months later, more than seven weeks after arrest warrants had issued, they surrendered in Florida, telling Florida police that they had been involved in a fight at Le Club.

As is apparent from the preceding summary, the State's case was built largely upon circumstantial evidence.Circumstantial evidence will sustain a conviction if it is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.State v. Rollins, 141 Vt. 105, 112-13, 444 A.2d 884, 888(1982);Derouchie, supra, 140 Vt. at 445, 440 A.2d at 150.From the evidence of defendant's companionship with Sorrell, their presence at the scene with the victim shortly before the crime, the injuries to O'Neal, the rock containing O'Neal's hairs, the trail of blood, the blood on defendant's clothes, and defendant's actions before and after the crime, a reasonable jury could conclude that defendant participated in taking O'Neal to the river, where he assaulted, robbed, and then placed O'Neal in the river.The evidence was sufficient for a reasonable jury to conclude beyond a reasonable doubt that defendant was guilty of participating in a common plan to murder Timothy O'Neal.

II.

Defendant next claims the court erred in declining to instruct the jury that prior inconsistent statements by witnesses could be considered as substantive evidence, and not just for impeachment.

Before the jury retired, defendant approached the bench and objected to the court's instruction that inconsistent statements, made by witnesses testifying at the previous trial of Sorrell or in depositions, were only to be considered as impeachment.Defendant argued that, because the out-of-court statements had been made under oath, subject to cross-examination, limiting their use to impeachment was erroneous.The court rejected defendant's argument, citing State v. Dragon, 128 Vt. 568, 570, 268 A.2d 913, 914(1970).

On appeal, defendant presents several arguments, based upon Vermont common law, the subsequently promulgated Vermont Rules of Evidence, and the Sixth Amendment to the United States Constitution.

A.

At the time of trial, March 16-24, 1983, Vermont's common law rule of evidence provided that prior inconsistent statements of a testifying witness were not admissible as substantive evidence.The common law rule, last upheld in Dragon, was changed by this Court's promulgation of V.R.E. 801(d)(1)(A)² of the Vermont Rules of Evidence, effective April 1, 1983.

Before April 1, 1983, the trial court was required to apply the common law rule unless presented with persuasive and authoritative reasons to depart therefrom.SeeMiller v. Willimott, 123 Vt. 448, 453, 193 A.2d 917, 920(1963)(stare decisis applies when not in conflict with constitutional and statutory provisions).The common law rule strongly favored in-court testimony and generally disfavored statements made out of the jury's observation.The rule freely permitted attacks on a...