State v. Pelican

• Decision Date: 23 July 1993
• Docket Number: No. 91-355,91-355
• Citation: 632 A.2d 24,160 Vt. 536
• Parties: STATE of Vermont v. Terrance L. PELICAN.
• Court: Vermont Supreme Court

Page 24

632 A.2d 24

160 Vt. 536

STATE of Vermont v. Terrance L. PELICAN.

No. 91-355.

Supreme Court of Vermont.

July 23, 1993.

Motion for Reargument Denied Aug. 27, 1993.

Howard E. VanBenthuysen, Franklin County State's Atty., St. Albans, for plaintiff-appellee.

E.M. Allen, Defender Gen., and Henry Hinton, Appellate Atty., Montpelier, for defendant-appellant.

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

ALLEN, Chief Justice.

Defendant Terrance L. Pelican appeals his voluntary manslaughter conviction, claiming several errors in the court's instructions to the jury. Defendant contends that (1) the court erroneously instructed that the evidence of diminished capacity could defeat proof of malice only, (2) the court erroneously directed the jury to convict defendant if the jury rejected the self-defense theory, (3) the self-defense instruction was incomplete because it did not adequately present the self-defense theory of the case to the jury, (4) the court erroneously directed the jury on how to reconcile conflicting testimony, and (5) the court committed prejudicial error by charging the jury that defendant's flight was evidence of guilt. We affirm.

Defendant and the victim had been friends who lived on the same floor of a hotel. Defendant, the victim, and others had been drinking alcohol throughout the day and into the evening. Defendant and the victim were involved in an altercation where the victim viciously assaulted defendant. After some time had passed, defendant shot the victim at close range with a shotgun. Immediately after the shooting, defendant fled the scene of the crime. Upon his arrest, defendant was charged with second-degree murder. Defendant asserted the defenses of self-defense and diminished capacity from intoxication.

Defendant's first two contentions--that there was an erroneous diminished-capacity charge and that the trial court erroneously directed the jury to convict him if it rejected the self-defense theory--were not preserved for our review. Defendant failed to make a "succinct recitation of [the] specific itemized objections" following the instruction, as required by V.R.Cr.P. 30. State v. Wheelock, 158 Vt. 302, 302, 609 A.2d 972, 975 (1992). Although the diminished capacity claim was mentioned during the charge conference, defendant's attorney did not object following the charge to the jury.

Anticipating this shortcoming, defendant points out that the Wheelock decision was handed down after the trial in this case, and to apply it retroactively would be unfair. Defendant claims that his counsel's preservation method comported with practice prevailing at the time. We disagree. Our rule and case law required an objection following the instructions to preserve the issue for appeal. See State v. Roberts, 154 Vt. 59, 71, 574 A.2d 1248, 1253 (1990) (" 'A claimed error in the jury instructions can be raised on appeal only if, after the delivery of the charge, the aggrieved party made a specific objection, including a clear statement of the matter to which he objects and the grounds of the objection.' ") (quoting State v. Lettieri, 149 Vt. 340, 342, 543 A.2d 683, 685 (1988)).

Nonetheless, defendant claims that both instructions were plain error. Plain errors are those errors "affecting substantial rights ... [which are] not brought to the attention of the [trial] court." V.R.Cr.P. 52(b). Plain error exists "only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986). Plain error doctrine requires "an appellate court to find that the claimed error not only seriously affected 'substantial rights,' but that it had an unfair prejudicial impact on the jury's deliberations." United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985). Prejudice must exist to demonstrate that error undermined fairness and contributed to a miscarriage of justice.

Defendant claims that the court's instruction--that evidence of diminished capacity could defeat only proof of malice, an element of murder, and not intent to kill, an element of voluntary manslaughter--was plain error. When evaluating the sufficiency of jury instructions, we consider the instruction as a whole. See State v. Valley, 153 Vt. 380, 398, 571 A.2d 579, 588 (1989). Here, the court instructed that diminished capacity relates to the State's burden of proving that defendant had the ability to form the intent to commit the crime. Additionally, the court had previously charged the jury on the required mental states for murder, voluntary manslaughter, and involuntary manslaughter. Whether defendant's mental capacity to formulate these essential elements was so diminished was properly left to the jury. Thus, the instructions, as a whole, provided sufficient guidance, and the portion of the instruction referring to malice did not have an unfair prejudicial impact on the jury's deliberation.

Defendant also contends that the court's instruction to convict if the jury rejected the theory of self-defense was tantamount to directing a guilty verdict and that this instruction was plain error. Defendant relies primarily on State v. Camley, in which this Court held that "a judge's instructions may not direct a verdict of guilty no matter how overwhelming or conclusive the evidence." State v. Camley, 140 Vt. 483, 489, 438 A.2d 1131, 1134, (1981). In Camley, we held that a misleading jury instruction was cause for a new trial under the plain error standard of review. Id. at 489-90, 438 A.2d at 1134. Camley is distinguishable from the case at bar because in Camley the trial court removed from the jury the option of a general not-guilty verdict. The Camley Court focused on the role of the judge in giving jury instructions. The Court noted that Vermont law "restrains a judge from commenting on the evidence in a way which gives undue prominence to any fact, claim or circumstance." Id. at 489, 438 A.2d at 1134. The Court concluded that the judge's failure to expressly mention the possibility of a not-guilty verdict constituted an "impermissible comment." Id. at 489-90, 438 A.2d at 1134.

In the present case, the court repeatedly instructed the jury of the State's burden of proof beyond a reasonable doubt. The instruction carefully informed the jury about the elements of the crime charged and the lesser-included offenses, and expressly informed the jury that it must acquit if it had a reasonable doubt that defendant was guilty. Read in its entirety, see State v. Valley, 153 Vt. at 398, 571 A.2d at 588, the instruction informed the jury that if the jury found that defendant did not act in self-defense, then he was guilty of one of the offenses charged only if its elements were proven. Taken as a whole, the instructions would not have thwarted the jury from returning a general not-guilty verdict. Thus, because defendant has not shown that he was prejudiced, there was no plain error.

Next, defendant contends that the self-defense instruction was incomplete because it did not adequately present defendant's self-defense theory to the jury. Specifically, defendant claims that the trial judge incorrectly denied defendant's request to instruct the jury that boots can be considered a deadly weapon which justify using lethal force, and that "renewed passion" could have caused defendant to act in the heat of passion. We disagree on both points because the "trial court is free to choose its own language in phrasing the charge." State v. Davignon, 152 Vt. 209, 216, 565 A.2d 1301, 1305 (1989). The instruction will be upheld provided the court instructs on every theory which is fairly put forward by the evidence. State v. Day, 149 Vt. 165, 166-67, 540 A.2d 1042, 1043 (1987).

Here, the court properly instructed the jury on the issue of self-defense, pointing out that the jury must "determine if it reasonably appeared to the Defendant that he was in danger of death or serious bodily harm." The court also instructed the jury that it must consider whether the force used by the defendant was reasonable from his vantage point and that the jury was to consider the totality of the circumstances. The instruction thus allowed the jury to consider whether the victim's previous assault upon defendant justified defendant's subsequent lethal force. The charge provided ample guidance regarding defendant's claim that lethal force was necessary under the circumstances.

Likewise, the jury was given adequate guidance as to the heat-of-passion claim. Defendant does not argue that whatever passion arose from the victim's first attack persisted into the second confrontation. Rather, he argues that his passion was renewed by the second conflict. Thus, under this theory of renewed passion, the proper focus of the jury's consideration would have been the amount of passion present during the second conflict. The trial court carefully explained the concept of sudden passion to the jury in its instructions. The charge properly focused on the possible existence of passion at the time of the offense and the circumstances in which defendant found himself. The instruction on heat of passion provided adequate guidance as to this issue.

Defendant's next contention is that the trial judge erroneously charged the jury to reconcile conflicting testimony on the theory that each of the witnesses was sworn to tell the truth. This Court has warned that "[i]nstructions [which] presume that witnesses are truthtellers pass dangerously close to unconstitutional shifts in the State's burden of proof and the presumption of innocence, and threaten to diminish the jury's role as the arbiter of credibility." State v. Snide, 151 Vt. 343, 345, 560 A.2d 380, 381 (1989). In Snide, however, we upheld a jury instruction...