State v. Ovitt, No. 04-071.

Docket NºNo. 04-071.
Citation878 A.2d 314
Case DateJuly 06, 2005
CourtUnited States State Supreme Court of Vermont

878 A.2d 314

STATE of Vermont
v.
Jamie OVITT

No. 04-071.

Supreme Court of Vermont.

July 6, 2005.


878 A.2d 315
Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ., and GIBSON, Associate Justice (Ret.), Specially Assigned

ENTRY ORDER

¶ 1. The State charged defendant Jamie Ovitt with first-degree murder for the killing and subsequent burial of his mother's ex-husband, Duane Perry. A jury convicted defendant of the lesser-included charge of second-degree murder, which carries a statutory presumptive sentence of twenty years to life. 13 V.S.A. § 2303(b). At trial, the court excluded evidence of a prior incident offered in support of defendant's claim that the homicide was justified because he acted in self-defense. At sentencing, the trial court found that the aggravating and mitigating factors effectively negated each other, and therefore imposed the presumptive sentence of twenty years to life. Defendant appeals, contending that the trial court erred in excluding testimony about one of the victim's prior violent acts, and that the sentencing procedure in 13 V.S.A. § 2303 is unconstitutional. We affirm.

¶ 2. On April 15, 2000, Duane Perry went to the trailer where defendant lived with his mother to purchase an ATV from her. Sometime between 6:00 that night and 7:30 the following morning, defendant shot Perry in the back of the head and buried his body under construction debris and sand in an old cellar hole nearby. On April 18, one of Perry's coworkers called his mother to tell her that Duane Perry,

878 A.2d 316
normally not one to miss work, had not come in that day. Duane's mother then called the state police, who found Duane's pickup truck at a highway rest stop in Ryegate on April 19. The police deduced, by interviewing other motorists, that the truck had been left at the rest area on the night of April 15. When the police found the truck, the ignition had been "punched out" and was on the floor in the cab, and a bill of sale for the ATV was on the passenger seat. On May 2, 2000, the state police found Duane Perry's body buried under layers of sand and demolition debris in the cellar hole

¶ 3. Over the next year, defendant developed a relationship with a woman, and in June or July of 2001 moved to Connecticut to live with her. In October of that year, the woman asked defendant if he was involved in Duane's murder. Defendant asked her to swear not to tell anyone what he told her. When she swore secrecy, defendant admitted to shooting the gun that killed Duane after an argument between Duane and defendant's mother. Defendant went on to describe hot-wiring the truck and leaving it at the rest area in Ryegate, and disposing of the murder weapon by grinding it into "little pieces and spread[ing it] throughout the 10 Mile Square Road." Defendant's girlfriend kept her promise not to tell until December 2001, when she told the Vermont State Police what defendant had told her about the murder. The State subsequently charged defendant with first-degree murder.

¶ 4. At trial, in support of his self-defense claim, defendant introduced evidence about his relationship with Duane Perry, including evidence of Duane's prior acts of violence towards him and others. Defendant testified that Duane physically and sexually abused him from 1991 until about 1994, including an incident when Duane kicked defendant between the legs, and another when Duane smashed defendant's head and his brother's head together. Defendant's uncle testified to an incident in which Duane had chased a dog through the uncle's house with a loaded gun, shooting at the dog at least six times and nearly killing it.

¶ 5. Defendant planned to introduce into evidence his uncle's testimony concerning another incident in 1991 or 1993, when Duane allegedly entered the uncle's house and threatened him...

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31 practice notes
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 8, 2006
    ...evidentiary rulings only when we find an abuse of that discretion resulting in prejudice." State v. Ovitt, 2005 VT 74, ¶ 8, 178 Vt. 605, 878 A.2d 314 (mem.). Appellant rests his argument on Vermont Rule of Evidence 404(b), which prohibits the use of prior bad acts to prove that a defendant ......
  • State v. Rideout, No. 2005-310.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 20, 2007
    ...we will not consider issues that were not raised with specificity and clarity at trial. State v. Ovitt, 2005 VT 74, ¶ 13, 178 Vt. 605, 878 A.2d 314 (mem.). An issue is not preserved for appeal unless it has been raised at trial with sufficient specificity to afford the trial court "an oppor......
  • State v. Robitille, No. 17-403
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 17, 2019
    ...admit the evidence. The 213 A.3d 444 State contends that this issue was not preserved. See State v. Ovitt, 2005 VT 74, ¶ 13, 178 Vt. 605, 878 A.2d 314 (mem.) ("An issue is not preserved for appeal unless a party raises it with specificity and clarity below, thereby ensuring that the trial c......
  • State v. Brochu, No. 05-177.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 7, 2008
    ...an application of V.R.E. 403. The court had broad discretion in making this ruling. See State v. Ovitt, 2005 VT 74, ¶¶ 9, 11, 178 Vt. 605, 878 A.2d 314 (mem.); State v. Rinaldi, 264 N.C. 701, 142 S.E.2d 604, 606-07 (1965) (evidence of "abnormal" sexual practices is prejudicial). There is no......
  • Request a trial to view additional results
31 cases
  • State v. Yoh, No. 00-160.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 8, 2006
    ...evidentiary rulings only when we find an abuse of that discretion resulting in prejudice." State v. Ovitt, 2005 VT 74, ¶ 8, 178 Vt. 605, 878 A.2d 314 (mem.). Appellant rests his argument on Vermont Rule of Evidence 404(b), which prohibits the use of prior bad acts to prove that a defendant ......
  • State v. Rideout, No. 2005-310.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 20, 2007
    ...we will not consider issues that were not raised with specificity and clarity at trial. State v. Ovitt, 2005 VT 74, ¶ 13, 178 Vt. 605, 878 A.2d 314 (mem.). An issue is not preserved for appeal unless it has been raised at trial with sufficient specificity to afford the trial court "an oppor......
  • State v. Robitille, No. 17-403
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 17, 2019
    ...admit the evidence. The 213 A.3d 444 State contends that this issue was not preserved. See State v. Ovitt, 2005 VT 74, ¶ 13, 178 Vt. 605, 878 A.2d 314 (mem.) ("An issue is not preserved for appeal unless a party raises it with specificity and clarity below, thereby ensuring that the trial c......
  • State v. Brochu, No. 05-177.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 7, 2008
    ...an application of V.R.E. 403. The court had broad discretion in making this ruling. See State v. Ovitt, 2005 VT 74, ¶¶ 9, 11, 178 Vt. 605, 878 A.2d 314 (mem.); State v. Rinaldi, 264 N.C. 701, 142 S.E.2d 604, 606-07 (1965) (evidence of "abnormal" sexual practices is prejudicial). There is no......
  • Request a trial to view additional results

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