State v. Pitts

• Decision Date: 17 May 2002
• Docket Number: No. 00-399.,00-399.
• Citation: 800 A.2d 481
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Sequoya PITTS.

800 A.2d 481

STATE of Vermont v. Sequoya PITTS.

No. 00-399.

Supreme Court of Vermont.

May 17, 2002.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE and JOHNSON, JJ., and CORSONES, D.J., Specially Assigned.

AMESTOY, C.J.

Defendant appeals a jury conviction in Chittenden District Court for accessory to aggravated assault in violation of 13 V.S.A. §§ 3 and 1024. Defendant argues that (1) the jury instructions on accomplice liability failed to require the jury to find that she shared in the principal's intent; and (2) defendant had no notice of the State's intention to charge her for accomplice liability and where a defendant is not charged as an accomplice, she cannot be convicted as one. We affirm.

Defendant was charged with aggravated assault on Kristina Prior, in violation of 13 V.S.A. § 1024(a)(1), after an altercation on April 12, 1999, which left Ms. Prior with a laceration to her face requiring fifteen stitches and leaving permanent scars. Defendant was acquitted of principal liability for the aggravated assault but was convicted as an accomplice.

On the evening of April 11, 1999, defendant and her friend Natalie Wright decided to go out. Ms. Wright had never been to Vermont and had come to visit defendant. At a friend's house, defendant and Ms. Wright wrote a rap song. Later, the group headed to a bar and dance club in Burlington. Also at the bar was Ms. Prior, who was engaged to the father of defendant's child, accompanied by her friends. The two groups did not interact, save for a brief exchange between defendant and Ms. Prior.

Ms. Prior and her friends left the bar and, on their way back to Ms. Prior's King Street residence, stopped at a pizzeria. The defendant was standing outside of the pizzeria with Ms. Wright and others. Ms. Prior and her friends began to leave the pizzeria to head home and walked past defendant and Ms. Wright. Defendant followed Ms. Prior and pushed her. An altercation ensued, and Ms. Wright joined the fight. Defendant and Ms. Wright took turns fighting Ms. Prior until Ms. Prior felt a sudden burn on her check, which she later realized was a laceration to her face. Ms. Prior did not see who had cut her. The police arrived at the scene and took defendant into custody. The police recovered a box cutter and found the three-page handwritten rap song in defendant's pocket.

Defendant was charged with aggravated assault, in violation of 13 V.S.A. § 1024(a)(1), and simple assault, in violation of 13 V.S.A. § 1023(a)(1). The State proceeded under two theories at trial: that defendant was the principal in the aggravated assault, or in the alternative, that defendant aided in the commission of the felony of aggravated assault. See 13 V.S.A. § 3 (person who aids in felony will be punished as principal). Defendant conceded simple assault at trial. The jury acquitted defendant as the principal but convicted her of accessory to aggravated assault.

On appeal, defendant raises two arguments: (1) that the trial court erred in its instructions to the jury on accomplice liability because the instructions allowed the jury to convict defendant under the theory of accomplice liability without finding that she shared the principal's intent, as required by State v. Bacon, 163 Vt. 279, 289, 658 A.2d 54, 61-62 (1995); and (2) that defendant lacked notice of the accomplice charge, as the information never charged her as an accomplice but only as a principal to the aggravated assault.

First, defendant challenges the jury instruction on accomplice liability. In reviewing the trial court's charge to the jury, we read the charge as a whole, rather than piecemeal, and will uphold the instruction where it "breathes the true spirit and doctrine of the law" and does not mislead the jury. Harris v. Carbonneau, 165 Vt. 433, 438, 685 A.2d 296, 300 (1996)(internal citation omitted). Defendant argues that the jury instruction was error, because it did not require the jury to find that defendant shared the intent of the principal, Ms. Wright, to cut Ms. Prior with the box cutter. At trial, defendant requested that the court instruct the jury that defendant could be convicted of accomplice liability only if she intended to "purposely cause serious bodily injury to Kristina Prior by cutting her." (emphasis added). Defendant asserts that the court's rejection of this proposed instruction was error, and that our holding in State v. Bacon, 163 Vt. at 289, 658 A.2d at 62, mandates a jury instruction which requires the defendant to share the intent of the principal as to the means by which the crime will be committed, in order to convict the defendant for accomplice liability.

Accomplice liability is meant to convict "defendants who intended to, and did in fact, aid in the commission of the charged offense, but who were not the primary perpetrators of the crime or did not participate in every aspect of the planned illegal act." Id. at 290, 658 A.2d at 62. In State v. Bacon, we rejected an accomplice liability theory based on language from our earlier decision in State v. Orlandi, 106 Vt. 165, 171-72, 170 A. 908, 910-11 (1934), overruled by Bacon, 163 Vt. at 289, 658 A.2d at 61-62, that would permit the principal's intent to be imputed to the accomplice so long as the result followed as a natural consequence of the common plan, even if it was not intended as a part of the original plan. Bacon, 163 Vt. at 289, 658 A.2d at 61-62. Rather, we held that a defendant can be convicted as an accomplice only where he acted with the same intent that is required to convict the principal. Id. at 289, 658 A.2d at 61 (citing State v. Davignon, 152 Vt. 209, 215, 565 A.2d 1301, 1304 (1989)).

Defendant's argument implicitly suggests that the jury could have erroneously convicted defendant as an accomplice to aggravated assault by finding she intended to cause bodily injury to Ms. Prior with her fists, an intent sufficient only to convict for simple assault. We disagree.

The State's theory of accomplice liability was based on the rap song found on defendant at the scene, written by defendant and Ms. Wright prior to their going out for the evening. It read in part:

Lettin yall bitches know yall the waekest to ever walk across my path, and it's you talk that shit & pop that shit, but what yall bitches don't know that my girl Ox will stop that shit. Slicin bitches where there eyelids meet, so let me just keep this brief because yall King Street pigeon heads will loose some teeth.

The song was written in the first person of "Shortie Assassin," identified in trial testimony to be defendant, and foretold that "Ox," identified in trial testimony to be Ms. Wright, would hurt the women from King Street.

The State's evidence established that the events of that evening mirrored those in the song: Ms. Wright and defendant did assault Ms. Prior, a resident of King Street, by cutting her on her face as predicted in the song, "my girl Ox . . . [s]licin bitches where there eyelids meet." The fact that Ms. Wright, a resident of New York City, had never been to Vermont nor met the victim previous to the altercation; that defendant knew the victim, and shared a strained and jealous relationship with her, given their interest in the father of defendant's child; and that defendant and Ms. Wright stopped assaulting the victim as soon as the victim's face was cut supported the State's theory that defendant intended for herself or Ms. Wright to cause serious bodily injury to Ms. Prior. The State, in its closing argument, argued both the principal and accomplice liability theories. In its discussion of defendant as an accomplice, the State argued: "If you believe that the defendant . . . engaged in a common scheme, if it was her intent that Kristina Prior be injured, that she suffer a serious physical injury, it doesn't matter who wielded the knife."

The challenged instruction reads in pertinent part:

The State's second theory does not require the

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