State v. Nunez, 92-467

Decision Date17 June 1994
Docket NumberNo. 92-467,92-467
Citation647 A.2d 1007,162 Vt. 615
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Albert NUNEZ.

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

ENTRY ORDER

Defendant Albert Nunez was charged with two counts of burglary, and one of simple assault, all arising out of his actions in response to the failure of his intimate relationship with Deborah Falzarano. One burglary occurred at the home of Ms. Falzarano and the other at the home of her sister. The simple assault occurred during a meeting between defendant and Falzarano. Defendant appeals from his conviction on all three counts. We affirm.

Defendant first argues that the trial court erred in failing to sever the two burglary counts. The trial court denied the motion to sever because the burglaries were part of a common plan to extract revenge against Falzarano, as alleged by the State. Notwithstanding the merits of defendant's argument, defendant failed to renew his severance motion at the close of the evidence as required by V.R.Cr.P. 14(b)(4)(B). Consequently, he has waived his right to raise the issue on appeal. See State v. Venman, 151 Vt. 561, 566-67, 564 A.2d 574, 578-79 (1989) (failure to renew motion to sever at close of evidence, when all relevant facts known, waives any right to argue severance on appeal).

Second, defendant argues that the court erred in admitting a statement made by defendant to Reverend George Abetti. During a telephone conversation initiated by defendant, Reverend Abetti, Falzarano's minister, informed defendant that Falzarano's home had been burglarized, to which defendant replied: "Well, to tell you the truth, I was only trying to scare the hell out of her." Defendant sought to have this statement excluded under V.R.E. 505(b), which provides that "[a] person has a privilege to ... prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser." Defendant bore the burden of demonstrating that his statement to Reverend Abetti was a privileged one. See State v. Kennison, 149 Vt. 643, 648, 546 A.2d 190, 193 (1987) (person claiming attorney-client privilege bears burden of establishing that communication was privileged), cert. denied, 486 U.S. 1011, 108 S.Ct. 1743, 100 L.Ed.2d 206 (1988). However, defendant failed to show he made this statement to Reverend Abetti acting in a capacity as defendant's spiritual adviser. Neither the fact that defendant initiated the telephone call nor that the communication could be construed as a penitent statement in confession to a crime overcomes the absence of this essential element of the privilege.

Third, defendant argues that the court erred in admitting statements he made to a state police officer during an October 1988 telephone conversation after defendant invoked his right to remain silent, but was told by the officer that this right did not apply outside of the courtroom. During this conversation, defendant made a number of statements later proved false in attempting to establish his alibi for the burglaries. The officer's erroneous legal opinion, however, is not conclusive as to the admissibility of defendant's statements. Defendant attempts to paint this as a case in which the officer's statement was intentional misinformation used to elicit incriminating evidence, tantamount to the use of "threats, improper influence, or physical or psychological pressure to extract a confession." State v. Zehner, 142 Vt. 251, 253, 453 A.2d 1126, 1127 (1982). This characterization ignores that fact that defendant's telephone call to the officer was entirely voluntary, and that defendant did not confess to the crimes during the conversation. There was no error in admitting defendant's statements.

Fourth, defendant argues that the court erred in denying his motion for acquittal on the burglary charges. Emphasizing...

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6 cases
  • State v. Fonseca-Cintron
    • United States
    • Vermont Supreme Court
    • November 8, 2019
    ...court must provide the jury with an instruction on an affirmative defense when the evidence supports that defense. State v. Nunez, 162 Vt. 615, 617, 647 A.2d 1007, 1009 (1994) (mem.) ("A court's obligation to charge on a defendant's theory is limited to situations in which there is evidence......
  • State v. Fonseca-Cintron
    • United States
    • Vermont Supreme Court
    • November 8, 2019
    ...court must provide the jury with an instruction on an affirmative defense when the evidence supports that defense. State v. Nunez, 162 Vt. 615, 617, 647 A.2d 1007, 1009 (1994) (mem.) ("A court's obligation to charge on a defendant's theory is limited to situations inwhich there is evidence ......
  • State v. Albarelli
    • United States
    • Vermont Supreme Court
    • November 18, 2016
    ...to charge on a defendant's theory is limited to situations in which there is evidence supporting the theory," State v. Nunez, 162 Vt. 615, 617, 647 A.2d 1007, 1009 (1994) (mem.), the lower court did not err by refusing to instruct on self-defense after defendant failed to prove the necessar......
  • State v. Trowell, 14–269.
    • United States
    • Vermont Supreme Court
    • July 24, 2015
    ...Moses owed defendant money. At best, the evidence showed that a different person, Cody, owed defendant money. See State v. Nunez, 162 Vt. 615, 617, 647 A.2d 1007, 1009 (1994) (mem.) ("A court's obligation to charge on a defendant's theory is limited to situations in which there is evidence ......
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