State v. Perez, 05-045.

• Decision Date: 16 June 2006
• Docket Number: No. 05-045.,05-045.
• Citation: 912 A.2d 944,2006 VT 53
• Parties: STATE of Vermont v. Michael PEREZ.
• Court: Vermont Supreme Court

Page 944

912 A.2d 944

2006 VT 53

STATE of Vermont v. Michael PEREZ.

No. 05-045.

Supreme Court of Vermont.

June 16, 2006.

Motion for Reargument Denied October 16, 2006.

Dan M. Davis, Windham County State's Attorney, and Tracy Kelly Shriver, Deputy

State's Attorney, Brattleboro, for Plaintiff-Appellee.

Allison N. Fulcher and Erika Wright, Law Clerk (on the Brief), of Martin & Associates, Barre, for Defendant-Appellant.

Present: REIBER, C.J., and DOOLEY, JOHNSON and SKOGLUND, JJ., and KUPERSMITH, D.J., Specially Assigned.

SKOGLUND, J.

¶ 1. Defendant Michael Perez appeals from his conviction, after a jury trial, of aiding in aggravated murder in violation of 13 V.S.A. §§ 3, 2301, 2311(a). He argues that: (1) the trial court erred in refusing to instruct the jury on a lesser-included offense of voluntary manslaughter; (2) the court's instruction on accomplice liability was inadequate and misleading; (3) there was insufficient evidence to support his conviction; (4) the court erred in denying his motion for individual and sequestered voir dire; and (5) the court erred by failing to sequester the jury during deliberations. We affirm.

¶ 2. The record reveals the following. In July 2002, defendant was charged with aiding in aggravated murder based on information that he aided in the intentional killing of Gregg Enos and Colleen Davis. The victims' bodies were discovered on June 25, 2002, in Enos's pickup truck in the Mollie Beattie State Forest in Grafton, Vermont. Enos died from multiple stab wounds to his head and torso. His body was found upside down on the driver's side of the truck, under the steering wheel. Davis was found partially inside the cab of the truck, bent somewhat at the waist through a small window in the back of the cab. Her upper torso and head were resting on a tire in the open, back part of the truck. She died from blunt trauma to the head.

¶ 3. At the scene, police found a long tree limb with a piece of red cloth wrapped around its end, resting on the back of Davis's skull. The cloth was burnt, and it contained Enos's blood. Another piece of burnt red cloth, also containing Enos's blood, was found protruding from the truck's gas tank. Both pieces of cloth were part of a red "Fat Albert" t-shirt that defendant had been observed wearing on the day of the murders. Police also discovered a rock with Davis's blood on it near a picnic table at the campsite.

¶ 4. Police encountered defendant and Charles Sherman at the murder scene the day the bodies were discovered. Defendant, who is black, was twenty years old at the time of the murders, and he was living with the Sherman family. Sherman, who is white, was in his early forties. Defendant told police that he and Sherman wanted to retrieve their truck, which had gotten stuck in the state forest the previous evening. Defendant initially stated that he and Sherman had walked home after their truck got stuck. He later said that he and Sherman caught a ride to Bellows Falls in a dark brown or black pickup truck.

¶ 5. Defendant gave another statement to police later that evening. He reiterated that he and Sherman caught a ride in a pickup truck. He denied any involvement in the murders. Defendant told police that after catching a ride into Bellows Falls, he and Sherman got drunk and went to sleep. He said that on the day of the murders, Sherman wore a red shirt, while he wore a white one. He denied that he and Sherman had a knife in their truck that day, despite testimony from several witnesses to the contrary.

¶ 6. Several days later, defendant told police that Sherman killed both victims. He recounted the following story. He and Sherman were very intoxicated. They went joyriding in the state forest until their truck got stuck. They started walking back to Bellows Falls and caught a ride with Enos and Davis. After stopping to buy beer and snacks, they all decided to return to the state forest to party. At some point, Enos and Sherman left the campsite to look at the stuck truck, and defendant had consensual sex with Davis on the picnic table. Enos and Sherman returned while this was occurring, which angered Enos. Defendant calmed things down, and the group started drinking together again. When Enos and Davis got ready to leave, Enos made a parting comment to defendant, calling him a "nigger." This angered Sherman, who began arguing with Enos. Defendant described himself as "frozen."

¶ 7. According to defendant, Sherman grabbed a stick out of defendant's hands and hit Enos with it. Sherman then tried to move Enos's body and asked defendant for help. Enos sprang up and ran to the truck. Sherman chased Enos and stabbed him. Defendant did not know that Sherman had a knife.

¶ 8. Eventually, Sherman, defendant, and Davis went to Enos's truck. The truck was too bloody to drive. Sherman asked defendant to help him move Enos's body into the truck. Sherman then told Davis to get into the truck, which she did. She tried to climb out of the truck's back window, and Sherman hit her with a stick and a beer bottle while defendant left and went inside a camp building at the site. Sherman later came into the camp building, threw his shirt and keys into the fire, and told defendant to wrap his shirt around the tree limb and light it. Sherman lit the shirt, stuck it into the truck, and the two men left the scene.

¶ 9. After giving this statement, defendant led police to evidence that he and Sherman had discarded. En route, he repeated portions of his story. He reiterated that Sherman became angry when Enos used a racial slur, and he stated that Sherman responded by saying "that's my nigger, not yours." Defendant indicated that he was scared Sherman would kill him. He told police that he and Sherman filled their clothes and shoes with rocks and threw them into the river. He also stated that they had planned to go to the state forest the following day, remove the tree limb, and pretend to discover the bodies. Defendant repeated that Sherman was very drunk that day and falling down due to his intoxicated state.

¶ 10. Several days after giving the first statement, defendant provided police with a slightly different version of events. Contrary to his initial story, defendant said that Sherman told him to hit Davis with the tree limb, which he pretended to do.

¶ 11. Defendant testified on his own behalf at trial, recounting another slightly different version of events. The State introduced defendant's various statements to police, in addition to other evidence. Several witnesses also testified that defendant told them that he raped Davis before killing her and that he "beat the dude and stabbed the bitch fifty-seven times." The jury found defendant guilty of aiding in aggravated murder, and this appeal followed.

¶ 12. Defendant first argues that the jury should have been instructed on a lesser-included offense of voluntary manslaughter. According to defendant, ample evidence supported his assertion that the killings were prompted by Enos's use of a racial slur. Defendant maintains that, based on the evidence, the jury could have determined that Sherman got violent and aggressive when he drank, Sherman and defendant had been drinking most of the day, Sherman was upset when Enos called defendant a "nigger," and, in a drunken rage, Sherman lost control and attacked and killed Enos. Defendant also points to the existence of a "sloppy" crime scene as evidence that the murders were the result of sudden provocation.

¶ 13. Assuming for present purposes that voluntary manslaughter, or "aiding in voluntary manslaughter," can be a lesser-included offense of aiding in aggravated murder, we find no error in the trial court's refusal to instruct the jury on this offense. While it is true that, "[a]s a general rule, a criminal defendant is entitled to have the jury instructed on all lesser-included offenses," the instruction need be given only "if the facts in evidence reasonably support such an instruction." State v. Delisle, 162 Vt. 293, 301, 648 A.2d 632, 637 (1994). The facts do not reasonably support a voluntary manslaughter instruction here.

¶ 14. Voluntary manslaughter has four elements: (1) adequate provocation; (2) inadequate time to regain self-control or "cool off"; (3) actual provocation; and (4) actual failure to "cool off." State v. Turgeon, 165 Vt. 28, 32, 676 A.2d 339, 342 (1996) (quoting 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.10, at 255 (1986)). The only evidence of provocation in this case was defendant's testimony that Sherman became angry when Enos directed a racial slur toward defendant. Putting aside the oddities in defendant's story — including the fact that, according to defendant, Sherman responded by using the same slur — the alleged insult was insufficient as a matter of law to establish provocation. See State v. Bogie, 125 Vt. 414, 417, 217 A.2d 51, 55 (1966) (recognizing that "provocation by mere words will not justify a physical attack"). There was no other evidence to support the use of a voluntary manslaughter instruction. The existence of a "sloppy" murder scene in no way tends to reasonably show that the murders were provoked. Because no reasonable construction of the facts establishes the offense of voluntary manslaughter, the trial court did not err in refusing to provide this instruction to the jury. See Turgeon, 165 Vt. at 33, 676 A.2d at 342 ("The trial court need only instruct the jury on the elements of lesser-included offenses that are fairly raised; it need not charge on a theory not supported by the evidence.").

¶ 15. Defendant next argues that the trial court's charge to the jury, read as a whole, was inadequate and misleading. He maintains that a fair and reasonable interpretation of the overall charge on accomplice liability allowed the jury to find him guilty of aiding in aggravated murder even if it found that he and Sherman had entered into an agreement with the intent to kill only one of the victims and...