State v. Myers

• Decision Date: 18 May 2011
• Docket Number: No. 09–355.,09–355.
• Citation: 26 A.3d 9,2011 VT 43
• Court: Vermont Supreme Court
• Parties: STATE of Vermontv.Michael J. MYERS.

26 A.3d 9

2011 VT 43

STATE of Vermont

v.Michael J. MYERS.

No. 09–355.

Supreme Court of Vermont.

April 22, 2011.Motion for Reargument Denied May 18, 2011.

Christina Rainville, Bennington County Deputy State's Attorney, Bennington, for Plaintiff–Appellee.

William A. Nelson, Middlebury, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.SKOGLUND, J.

¶ 1. Defendant appeals a jury verdict finding him guilty of seven charges all resulting from a drunken altercation in which he drove his truck around the complaining witness's lawn and eventually into the complaining witness's home, then drove it at the complaining witness, and finally fled the scene, only to be arrested by the police some time later. He makes a series of related claims on appeal, arguing the trial court erred in: (1) denying his in limine motion to exclude prejudicial evidence; (2) failing to instruct the jury on simple assault as a lesser included offense to the aggravated assault charges; (3) giving the jury a flawed instruction on intent, which violated his federal due process rights; (4) neglecting to instruct the jury on his diminished capacity with regard to the aggravated assault charges; (5) refusing to instruct the jury on the necessity defense in connection with the charge of leaving the scene of an accident; (6) allowing the State to prosecute him on a flawed information; and (7) denying his motion for judgment of acquittal on one of the charges of aggravated assault. We affirm.

¶ 2. Defendant started the evening of March 4 by drinking a half liter of vodka. By about 11:00 pm a friend described his intoxication level as a nine out of ten. The friend declined to let defendant into his house and sent him on his way. Defendant then drove to the complaining witness's home. Testimony differs as to exactly what transpired at the complaining witness's mobile home, but the basic facts are uncontested. Defendant had known the complaining witness for about six months and had previously stopped by his home on multiple occasions. The complaining witness worked as a tattoo artist, and defendant, in the past, had requested that he rework some of defendant's tattoos. The complaining witness had refused, due to the racist subject matter of the tattoos.

¶ 3. Defendant arrived at the complaining witness's home around 11:30 pm, looking to have another drink. The complaining witness, his girlfriend, and their daughter were all asleep when defendant arrived. The complaining witness went out onto his deck to see what defendant wanted. Observing that defendant, who was walking towards the mobile home, was clearly drunk, the complaining witness asked him to leave. Defendant got back into his truck but did not leave. Instead he sat in the truck listening to music at a high volume. Eventually, the complaining witness told him he was trespassing and was “not welcome here.” At this point, the exchange rapidly became more heated, and defendant got out of his truck and approached the complaining witness, who was still on the deck of the mobile home. The complaining witness then threatened to shoot defendant if he did not leave. He went inside his home and got a steak knife. He did not own a gun. When he came back outside, defendant was driving his truck around on the driveway and lawn.

¶ 4. The two exchanged more threats—defendant from the cab of his truck and the complaining witness out in his yard—and at some point defendant drove over the complaining witness's mailbox. Eventually, defendant rammed the truck into a corner of the mobile home where the complaining witness's two-and-a-half-year-old daughter slept, causing considerable damage and knocking the home off its foundation. After hitting the home, defendant backed the truck up and, in leaving the property, drove toward the complaining witness. He missed him and then drove approximately a mile to his mother's house.

¶ 5. Meanwhile, the complaining witness's girlfriend had called the police, who arrived at the home shortly after defendant had left. While the police were on the scene, defendant called the complaining witness, threatening him further. During the call, the complaining witness had one of the officers speak to defendant. At the same time, other officers had located defendant's truck at his mother's house and had followed footprints leading from the truck to a locked camper in the woods where they found defendant. They arrested him without incident, handcuffed him, and walked him towards their cruisers. This took place approximately one half hour after defendant left the complaining witness's house. As they approached the cruisers, defendant began shouting and struggling against the officers. Conditions were icy; footing was slippery. The officers testified that while attempting “to regain control of [defendant]” because he “was struggling so violently,” one of them tripped and fell, jamming three fingers on his hand. When defendant calmed down, the officers put him in a patrol car. Once in the car, defendant again began to swear and struggle, and he kicked a second officer several times in the leg, knocking the officer backward. The officers brought defendant to the police station, and one officer noted that defendant was intoxicated enough that he was “having some difficulty standing up” while in the holding cell. On the processing report for defendant's driving under the influence charge, the officer indicated defendant had the highest level of intoxication.

¶ 6. Based on the foregoing, defendant was charged with eleven different crimes.¹ Before trial, defendant moved to exclude evidence of events that took place prior to his arrival at his friend's house. Specifically, the State sought to introduce testimony that defendant had been in a local bar where he got into an argument with another patron. The bartender separated the two and asked defendant to leave. Defendant wanted the evidence from the bar excluded because during the course of the interaction the two men discussed defendant's beliefs about racial supremacy. The interaction grew heated when defendant learned of the patron's mixed racial background and allegedly called the patron a “spic.” Defendant argued that evidence of the event would be prejudicial because of its racist content and had no probative value because it was irrelevant to the charges. The prosecution opposed the motion arguing that the evidence would show defendant's consumption of alcohol a short time before the incident, discussion of his racists beliefs, and an angry argument between defendant and the patron. In denying the motion, the trial court ruled that evidence from the bar was relevant as “highly probative” on the issues of defendant's motivation and intent in committing the later crimes. On this point the court held “any racist statements defendant made tend to cast light on his motive to be violent with [the complaining witness], whom—according to the State's version of the facts—defendant knew has a daughter whose godfather is black.” The court agreed that the evidence would be somewhat prejudicial, but it judged the events at the bar to be sufficiently relevant and probative because they were part of the res gestae of the charged crimes, meaning they “form[ed] a body of evidence relating to the events surrounding the crime of which a defendant is charged.” State v. Maduro, 174 Vt. 302, 306, 816 A.2d 432, 435 (2002) (quotation omitted).

¶ 7. In March 2006, the case was set for a jury draw. During voir dire, apparently in response to the judge's denial of the motion in limine, the defense attorney discussed with the jury defendant's racist beliefs to assess potential bias against him. He told the jury panel that defendant was a “white supremacist.” Due to the defense attorney's health, the case did not go to trial with this first jury pool, and the parties were forced to draw a second jury. Because some of the original jurors who learned of defendant's beliefs would be in this second draw, the defense attorney again believed it necessary to discuss defendant's racist beliefs during voir dire. During a conversation with the court before the jury draw, the State asserted that its case was “just ... not about white supremacy.” The trial judge noted that reraising this issue was “a difficult decision tactically [for the defense attorney], so ... whether or not you do it is completely your election. It's not compelled by anything that's obvious in the State's presentation of how it intends to proceed.” After the defense attorney brought up white supremacy during voir dire, the court dismissed several jurors who said they could not be impartial to defendant based on his beliefs.

¶ 8. During the trial, the issue of defendant's beliefs came up several times. Both attorneys brought it up during their opening statements. The bar patron was unavailable to testify for the State; however, the bartender testified that defendant had gotten in an argument and called the patron a “spic.” The complaining witness also testified to the fact that many of the tattoos defendant wanted him to rework were Aryan Brotherhood and Nazi tattoos. The complaining witness stated that he refused to work on such tattoos because he “didn't believe in what the tattoos stood for” and because his “daughter's godfather is black.” Finally, defendant took the stand, and the defense attorney elicited testimony from defendant related to his “sacrodist” or racial purist religious beliefs.

¶ 9. At the close of the State's case, defendant moved for a judgment of acquittal. The court denied the motion, and after defendant presented his case, the parties met to discuss the jury instructions. Defendant raised several concerns about the instructions, requesting a necessity defense instruction for the leaving-the-scene-of-an-accident charge and an instruction on simple assault as a lesser included offense to the charges of aggravated assault. The...