State v. Norton, 84-306

• Citation: 514 A.2d 1053,147 Vt. 223
• Decision Date: 27 June 1986
• Docket Number: No. 84-306,84-306
• Parties: STATE of Vermont v. Harold NORTON.
• Court: United States State Supreme Court of Vermont

Page 1053

514 A.2d 1053

147 Vt. 223

STATE of Vermont v. Harold NORTON.

No. 84-306.

Supreme Court of Vermont.

June 27, 1986.

Jeffrey L. Amestoy, Atty. Gen., David Tartter, Asst. Atty. Gen. and Steven Norten and John Glynn, Law Clerks (on brief), Montpelier, for plaintiff-appellee.

Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

HAYES, Justice.

Defendant, Harold Norton, appeals his conviction, following jury trial, of involuntary manslaughter.

Defendant raises several issues on appeal. First, he claims that the trial court erred in denying defense motions to dismiss for lack of probable cause and for lack of prima facie case, and defense motion for judgment of acquittal. Second, defendant asserts that the trial court erred in failing to order a mistrial after the prosecutor commented on defendant's refusal to cooperate with the authorities investigating the victim's death. Finally, defendant argues that the trial court erred in instructing the jury. We disagree with these contentions and affirm.

Robert Nisen died in the early morning of September 4, 1983, when his body struck the water in the Wells-Lamson Quarry in Barre Town, at approximately eighty-eight miles per hour. State police divers found Nisen's body the next day on a rock ledge about eight feet below water level.

The evidence concerning Nisen's death, viewed in the light most favorable to the State, and excluding the effect of modifying evidence, is summarized as follows. On Saturday night, September 3, 1983, a party was held at Quarry Hole No. Six in Barre Town. The victim arrived with Dwight Hull. Defendant arrived with David "Frenchy" Charette, in Charette's pick-up truck. At one point during the party, defendant and Hull had a brief altercation.

By about 2:00 a.m. on Sunday, September 4, only Nisen, Hull, Charette, and defendant remained at the party. When defendant and Charette drove away, Hull jumped into the back of Charette's truck. Nisen was unable to jump in before the truck sped off. Soon afterwards, Charette stopped the truck, and he and defendant forcibly ejected Hull. Charette hit Hull on the kneecap with a lead-weighted stick. Charette and defendant then drove off.

Hull rejoined Nisen, and they continued walking away from Quarry Hole No. Six. Shortly thereafter, Charette drove his pick-up back toward Nisen and Hull, apparently trying to run them over. Hull and Nisen jumped from the truck's path. Charette then turned the truck around, drove back, and stopped by Nisen and Hull. Defendant apologized, and offered them a ride. Hull offered his hand to shake. Defendant became angered, and Charette again drove the truck off. At least once more, however, Charette drove by Nisen and Hull, either trying to scare them or run them over.

Defendant then stated something like, "I'm going to get him." Charette parked his truck off the road across from the Wells-Lamson Quarry, about six-tenths of a mile from Quarry Hole No. Six. When Nisen and Hull arrived near the truck, defendant, armed with a hammer belonging to Charette, leaped out and ran after the pair. Hull saw defendant raise his arm with the hammer in it, and heard a thumping sound. Hull ran off. He fell, and looked back to see defendant swinging the hammer at Nisen a second time. Hull glanced at his watch. It was 3:00 a.m. He ran to nearby houses and began knocking on doors. Someone let him in, and he telephoned the police.

Lieutenant David Roberts of the Barre Town Police responded to Hull's telephone call. He picked up Hull at the house from which he had called, and they drove to the Wells-Lamson Quarry, arriving at around 3:30 a.m. They searched for Nisen with several Barre City policemen who had arrived at the scene earlier. Nisen was not found. At around 4:00 a.m., Lt. Roberts drove off and spotted defendant lying on the lawn of a private residence. Lt. Roberts shined a spotlight on defendant, who immediately rose, and began walking toward the house, away from the police car. Lt. Roberts approached defendant, recognized him as a Norton, and asked if he was Albert Norton, one of defendant's brothers. Defendant said no, and instead told the police officer that he was Randy, one of his other brothers. Defendant said that his girlfriend had kicked him out, and that, while walking to Barre, he had fallen asleep. Lt. Roberts noticed that defendant's knuckles were bloody. Defendant explained that he had become angry at Charette for leaving him at a party, and had punched a piece of granite.

Two other officers of the Barre City Police then arrived at the scene. Defendant told them that after leaving the party he had gone to his sister's house. He explained his bloodied hand by saying that he had become angry while at his sister's house, and had punched a wall.

Charette testified that after defendant jumped from the truck to chase Nisen and Hull, defendant told Charette to leave. Charette drove off, and spent the rest of the night at the home of a woman he had recently met. On Sunday, Charette and his companion went to the home of defendant's girlfriend. Defendant was there. Charette asked defendant if he had Charette's hammer. Defendant responded, "Don't worry about it. It's long gone." In addition, defendant said, "You should have been there. I made $65.00. I pissed on his head and his eyes curled."

On Monday, September 5, Charette and his girlfriend drove to a farmhouse where they, and defendant, and several others had a party. That night, someone telephoned the farm to report that the quarries were being drained. At this point, defendant said that he and Charette should go to Massachusetts. Charette initially said that he did not want to go. Defendant said that he didn't want to leave Charette there to "narc him out," which, Charette's girlfriend explained, meant to tell on somebody. Charette eventually acquiesced, and he and defendant drove to Williamstown, Vermont. Charette's truck was low on gas. Charette drove back to Barre to fill it up. He stopped at the Morgan Store in Barre, and while there, several police officers arrived. Charette agreed to speak with them the following morning.

A detective spoke with defendant at the Morgan Store. Defendant told him that after leaving Quarry Hole No. Six with Charette, he had gotten out of the truck at the cemetery where Websterville Road intersects Quarry Hill Road.

Meanwhile, on Sunday, September 4, Hull began to search for his friend. He continued to look for Nisen on Monday. At about mid-afternoon on Monday, Hull found a five-dollar bill and a book of matches in the area between the Wells-Lamson Quarry access road and Websterville Road. He searched further and found bloodstains by the edge of the quarry, and several coins. Hull then sent for the police.

A state policeman called to the Wells-Lamson Quarry found blood spots and coins on a ledge above the quarry. The blood spots were four to five feet from the quarry's edge. Four samples of the blood were consistent with the defendant's blood type, and that of only one and one-half percent of the general population. The remaining samples were all consistent with defendant's blood type, and inconsistent with the blood types of Nisen, Hull, and Charette.

The next morning, a team of state police divers located Nisen's body against the wall of the quarry, directly below the edge where the bloodstains were found. A distance of 260 feet separated the top of the quarry from the surface of the water.

An autopsy was performed on Nisen's body. It was concluded that Nisen died of multiple blunt trauma due to a fall from a great height. The autopsy also revealed that Nisen's hyoid bone, located under his jaw, was fractured. Furthermore, the autopsy showed no injuries on the head or neck area that would have been caused by a hammer blow. Any injuries to the left side of the chest wall and abdomen which would have been caused by a hammer blow, however, would have been obscured by the extensive injuries resulting from the fall.

I.

A.

Defendant argues first that the trial court erred in denying his motion for review of probable cause. We disagree.

On December 5, 1983, defendant moved for a review of probable cause on grounds that the information charging defendant with murder failed to provide the specific act which the State claimed resulted in Nisen's death. The State subsequently amended the information to allege that defendant murdered Nisen by causing him to fall into the Wells-Lamson Quarry. Thus, defendant's objection was remedied before trial.

Defendant asserts on appeal, however, that two of the facts contained in the affidavits of probable cause were subsequently found to be untrue, and that without these facts, no probable cause existed to charge defendant. The two facts in question are: first, that Hull saw defendant strike Nisen with a hammer, when, in fact, Hull testified that he merely saw defendant raise his arm above Nisen with the hammer, and then heard a thump; and second, that bloodstains were found at the scene, when, in fact, the bloodstains were those of defendant, and not of Nisen.

In a motion testing probable cause, the "review is made solely on the pre-existing record. There is no right to cross-examine witnesses or offer new evidence." Reporter's Notes, V.R.Cr.P. 5(h). The trial court "must assume circumstances equivalent to those existing and applicable to a hearing at the time of the challenge." State v. Perry, 131 Vt. 75, 77, 300 A.2d 615, 615 (1973). Defendant's argument is based upon subsequently discovered evidence. Therefore, his challenge to the probable cause determination is without merit because the sufficiency of affidavits to support an information is to be judged by the affidavits on their face.

Furthermore, a challenge to probable cause following trial and conviction is untimely. The purpose of the requirement of probable cause "is to assure that persons are not proceeded...