State v. Percy, 91-131

• Citation: 158 Vt. 410,612 A.2d 1119
• Decision Date: 08 May 1992
• Docket Number: No. 91-131,91-131
• Parties: STATE of Vermont v. Robert L. PERCY.
• Court: United States State Supreme Court of Vermont

Page 1119

612 A.2d 1119

158 Vt. 410

STATE of Vermont v. Robert L. PERCY.

No. 91-131.

Supreme Court of Vermont.

May 8, 1992.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

E.M. Allen, Defender Gen., and William Nelson, Appellate Atty., Montpelier, for defendant-appellant.

Before ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and BRYAN, Superior J., Specially Assigned.

MORSE, Justice.

Defendant appeals from jury convictions for sexual assault, kidnapping, carrying a dangerous weapon while committing a felony, and assault and robbery. His defense was insanity, and he challenges the convictions on a multitude of grounds: (1) admission in evidence of prior criminal behavior violated V.R.E. 403, (2) evidence of criminal acts committed in Connecticut was improperly admitted and relied on in sentencing, (3) the jury charge failed to state that kidnapping includes an element of felonious intent, (4) the instruction on reasonable doubt was incomplete, (5) he was denied a speedy trial, (6) imposition of a harsher sentence after appeal and retrial violated his due process rights, (7) too little credit for time served was applied to his sentence, and (8) the court improperly engaged in an ex parte telephone conversation about sentence computation with a corrections department employee. We affirm.

The events leading up to this case began late on the afternoon of Friday, January 16, 1981. Defendant was working at a garage in Stowe while awaiting trial on a charge of sexual assault and kidnapping. A week or two earlier, defendant had told another employee to give him any credit cards inadvertently left behind by customers, despite the garage owner's policy that employees were to place them in a box by the cash register. In that conversation the other employee asked defendant how he thought the pending criminal case would come out. He replied, "It doesn't matter. Friday is going to be my last day."

Between 5:00 and 5:30 p.m., a woman pulled up to the gas pumps at the station. Defendant put gas in her car, and then told her that one of her tires needed air. Although there was a well-lit air pump nearby, defendant told her to pull her car up to an air pump located in a dimly lit area of the station. After she did so, defendant told her he needed to get something inside the station. While he was inside, a friend of the woman's drove into the station and parked his car so that the headlights illuminated her car. Defendant came back out and told the woman that everything was all right, and she drove away.

Then, the victim in this case pulled into the station, and defendant filled her car with gas. After she paid, defendant told her that a tire was low and directed her to the air pump in the dimly lit area. A few minutes later, defendant jumped into the front passenger seat. When the victim asked if this was a joke and told him to get out, defendant ordered her to "shut up and drive." She at first refused, but when defendant pulled a gun, she obeyed. Following his directions, the victim drove along back roads to an isolated spot where defendant told her to park and then ordered her to take off her clothes. When she refused, he choked her, tied her hands behind her back, covered her eyes and nose with a rag, and sexually assaulted her--threatening to use the gun if she resisted. After the assault, she pleaded with defendant to let her go. He said that if he did, she would report the car missing. He reached back, jiggled a baby seat, and told her to lock the door on the passenger side. He then took the wheel and drove off.

As they travelled, defendant asked the victim her name, where she lived, where she worked, and how old her baby was. He pulled into a rest area off I-89 in Chittenden County, where he lit what appeared to the victim to be a marijuana cigarette and insisted that she smoke it. He also ordered her to take all of the money out of her purse and put it on the dashboard; she complied, and defendant later took the cash, totaling $130.

Defendant drove cautiously and at one point watched a state trooper's car in the side-view mirror. At a closed service station, defendant bought a soda from a vending machine and then traced a route on a New York map that he had brought with him. Before leaving, defendant again ordered the victim to lock her door, and he headed the car south.

After entering Connecticut, defendant stopped and parked, pointed the gun at the victim and again sexually assaulted her. Afterward, he told her to lock her door, but since it was already locked, she reached back and unlocked it. Defendant turned on the dome light to check the door, but did not notice that it was unlocked. As they proceeded south, defendant said they needed gas and drove into a busier area. At about 2:00 a.m., the victim saw a police car near an intersection where defendant had stopped. She opened the door, jumped out, and ran to it. Defendant drove away.

Police set up a roadblock, but defendant succeeded in going around it. Defendant later abandoned the car, but police found him nearby. During arrest processing, defendant gave his name as "Thomas R. Lindbloom." He had in his wallet an identification card with that name on it as well as a card with his own name, two oil company credit cards issued to customers of the garage where he worked, and $855 in cash.

The following day, defendant offered to help police find the gun, which he had thrown out the car window. As he put it, he didn't want a child "to find it and get hurt." Defendant went with the police and showed them his route after the victim jumped out of the car. The gun was not recovered.

At trial, the principal issue was defendant's sanity. Defendant claimed to be suffering from post-traumatic stress disorder (PTSD) as a result of his experiences in the Vietnam war. Defense experts testified that defendant, who claimed to have amnesia about the events, had experienced an unconscious flashback at the time of the incident and could not control his behavior. In their opinion, some event at the garage triggered the flashback, causing defendant to believe that he was in Vietnam and under imminent danger of sniper attack. According to these experts, he believed that the victim was a Vietnamese woman who had betrayed his company and that he was driving her to a prisoner-of-war camp. The State contended that defendant was simply fleeing from prosecution when he kidnapped and raped the victim, and his mental abnormality was "manifested only by repeated criminal or otherwise antisocial conduct," not as a result of a mental disease or defect. 13 V.S.A. § 4801(a)(2).

I. Prior Bad Acts

The State introduced the testimony of a psychiatrist about two uncharged criminal offenses committed by defendant in 1972. Defendant had told the psychiatrist that in one incident he had gone to a college campus to collect a drug debt from a student and then blacked out from drugs. Police records and other documents given to the expert to review showed, however, that defendant had never met the student before, had accosted her at gunpoint, and had sexually assaulted her. Afterward he had taken her back to her dorm and engaged in casual conversation. Defendant related another incident of kidnapping a woman to the expert, but no details were given other than a name and the year.

The court admitted this testimony over defendant's objection that any relevance to sanity was "substantially outweighed by the danger of unfair prejudice." V.R.E. 403. ¹ The State's position was that the incidents were relevant as part of the basis for the opinion of its expert witness on the issue of sanity.

A discretionary ruling admitting relevant evidence under Rule 403 is given considerable latitude on appeal because the rule requires that exclusion of the evidence is permitted only upon a showing that the risk of unfair prejudice to the defendant substantially outweighs the probative value of the evidence. See State v. McElreavy, 157 Vt. 18, ---, 595 A.2d 1332, 1334-35 (1991) (burden to show abuse of discretion under Rule 403 is "heavy" and "often difficult to satisfy").

The prejudice defendant complains about is the potential that the jurors would infer that he had a propensity to commit violent crimes as "a man of dangerous criminal character." Yet, defendant conceded at trial that he had committed violent acts. His point was that he acted violently because he was legally insane at the time. The claimed unfair prejudice, therefore, was what made the evidence relevant. Defendant either acted with criminal propensity, as claimed by the State, or acted as a result of insanity, as claimed by defendant. The central issue for the jury was why defendant acted violently toward women. The general rule, therefore, that character evidence is not admissible to prove that defendant "acted in conformity therewith on a particular occasion" did not apply in this case. The prosecution offered evidence to rebut "a pertinent trait of his character offered by an accused," and it was admissible for that reason. V.R.E. 404(a)(1). Because defendant put his sanity in issue, his prior conduct relevant to sanity was admissible when offered by the State.

The 1972 incidents were particularly relevant because they occurred closer in time to defendant's return from Vietnam. They were relevant to defendant's sanity from either side's point of view. Had no psychotic episodes occurred between 1970 and 1981, defendant's insanity defense would have been less credible. Defendant claimed that he committed the 1972 acts in a psychotic state, and several of his expert witnesses agreed.

Defendant contends the evidence about the 1972 incidents was inconclusive and their probative value therefore was "attenuated and uncertain." The contention that the evidence was not as decisive as it could have been is difficult to understand; had the evidence more strongly suggested that defenda...