State v. Potter

• Decision Date: 10 April 1987
• Docket Number: No. 84-485,84-485
• Citation: 148 Vt. 53,529 A.2d 163
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Richard POTTER.

Page 163

529 A.2d 163

148 Vt. 53

STATE of Vermont v. Richard POTTER.

No. 84-485.

Supreme Court of Vermont.

April 10, 1987.

William S. Bos, Windsor Co. State's Atty., and M. Patricia Zimmerman, Law Clerk, on the brief, White River Junction, for plaintiff-appellee.

Martin and Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, ¹ JJ.

PECK, Justice.

Defendant appeals his conviction, following jury trial, on charges of first degree arson and possession of stolen property. We affirm.

Defendant raises several issues for our consideration. First, he contends that the trial court erred in refusing to declare a mistrial after a witness referred to the possibility that he had been recently incarcerated. Second, defendant argues that the court violated his constitutional right to present evidence in his defense when it denied a motion to reopen his case for the purpose of admitting an anonymous, exculpatory note into evidence. Third, he assigns error to the trial court's denial of his motion to suppress evidence seized from a storage shed located on his mother's property, and he asserts both a lack of probable cause for issuing the search warrant and a failure to include the shed within its scope. Fourth, defendant argues that the lower court erred in refusing to order acquittal or a mistrial after no stenographic record was made of the jury's verdict. Finally, defendant complains of the trial court's denial of two motions for a new trial, one following the receipt of a second exculpatory letter and the other following a purported confession made by a person incarcerated with defendant.

On the morning of October 11, 1983, fire destroyed the residence of David and Mary Chestnut. The Chestnuts' daughter, Cassandra Potter, testified at trial that she and her husband, defendant Richard Potter, who lived nearby in a mobile home, ² arrived at her parents' home at approximately 9:15 that morning in order to wash some clothing. The Chestnuts were not at home, and the Potters left the house within five or ten minutes, relocking the door behind them. Mrs. Potter testified that she noted nothing unusual about the house except the fact that the woodstove was fully loaded with the damper open. By 9:45, a passerby observed smoke coming from the Chestnuts' house and reported the fire, but firefighters arrived too late to save the rapidly burning structure. Subsequent investigation revealed that a liquid incendiary had been used on the floor of the house and that the fire had not originated with the woodstove.

Mr. Chestnut testified that he owned an extensive but uninsured stamp collection, valued at approximately $200,000, and that it had been stored in the house. Although some evidence of burned stamps was found after the fire, the metal binders from the stamp albums could not be located. Testimony indicated that defendant knew where the collection had been stored as well as its value.

Before the fire occurred, the Potters had been discussing plans to leave Vermont, but instead they moved into the home of defendant's mother. Subsequent to the destruction of the Chestnut property, a warrant authorizing a search of defendant's mother's residence was obtained, and the shed behind the house was included in the search. Inside the shed, the stamp collection was found in two duffel bags, one with defendant's name stenciled on it. Defendant's mother testified that nobody other than defendant and his wife had a key to the shed or used it in any way.

After the defendant had rested his case at trial, an anonymous note appeared under the windshield wiper of a local police vehicle. The note, written in a disguised hand, included the claim that the writer had been paid to set the fires and to "set up the Potters." The court denied defendant's motion to reopen his case for the purpose of introducing this note into evidence. After the jury returned its verdict, the court received an anonymous letter accompanied by certain documents that appeared to be from the Chestnuts' house. This letter contained further assertions of defendant's innocence, but the court denied his subsequent motion for a new trial. Finally, while the appeal was pending, an inmate incarcerated with defendant professed guilt for the arson incidents. The investigating officer interviewed the inmate and elicited an account of the crimes that was inconsistent with the known facts. At the hearing on defendant's subsequent motion for a new trial, the inmate claimed his privilege against self-incrimination, and the court denied the motion.

I.

We first consider defendant's claim that the trial court's denial of his motion for a mistrial was reversible error. The motion was made after a witness referred indirectly to the fact that defendant may have been incarcerated at some time immediately prior to the incident in question. During preliminary direct examination by the prosecution, Mrs. Chestnut was asked whether defendant had been living nearby during the ten days before the fire. She replied: "I don't know whether he was in jail then or at the house at that time." After approaching the bench, counsel for defendant asked the court to strike the response and moved for a mistrial. The court agreed to have the answer stricken but denied the motion, reasoning that the response was not anticipated by the State and that the problem could be cured with a jury instruction. The court then addressed the jury, stating:

[T]he Court heard in the last response by Mrs. Chestnut a reference to the Defendant possibly may have been in jail in October, 1983. That is at this time stricken from the record, and you will disregard that in all of your deliberations. It's not evidence in this case. It's removed from the case at this time by order of the Court.

Because the disposition of a motion for mistrial is discretionary, a claim of error can be supported only with a showing that the court's discretion was either totally withheld or exercised on grounds clearly untenable or unreasonable. State v. Chambers, 144 Vt. 377, 381, 477 A.2d 974, 977 (1984). Reversal is appropriate only where prejudice is shown by the moving party, and the existence of prejudice is to be determined on the facts of each case in the context of the entire proceeding. Id.

Here, defendant has failed to demonstrate an abuse of discretion. We have held that a prompt, strongly worded admonition to the jury can eliminate the need for a mistrial in certain cases. State v. Foy, 144 Vt. 109, 116, 475 A.2d 219, 224 (1984); see also State v. Hamlin, 146 Vt. 97, 104-05, 449 A.2d 45, 51 (1985). Here, such an admonition was given; "the trial court struck promptly and forceably at the essence of the error...." Foy at 116, 475 A.2d at 224. Moreover, in its final instructions, the court again cautioned the jury to disregard all remarks stricken from the record. Defendant has not made an affirmative showing to the contrary; accordingly, we assume that the instructions were not ignored by the jury, and that the witness' remark was disregarded. See Foy at 117, 475 A.2d at 224. The grounds supporting the trial court's denial of the mistrial motion were tenable and reasonable, and defendant has failed to demonstrate an abuse of discretion or that he was prejudiced.

II.

The second claim of error relates to the anonymous note that appeared after the close of evidence. Defendant argues that the trial court's denial of his motion to reopen his case for the purpose of admitting the note into evidence violated his right, guaranteed by Chapter I, Article 10 of the Vermont Constitution, to call for evidence in his defense. We disagree.

A trial court's ruling on a motion to reopen is discretionary. State v. Fitzgerald, 141 Vt. 369, 371, 449 A.2d 930, 931 (1982). Refusal to reopen a case is not an abuse of discretion where the proffered evidence would be inadmissible, People v. Mason, 183 Cal.App.2d 168, 173, 6 Cal.Rptr. 649, 652 (1960), and the admission of evidence is a highly discretionary matter. State v. Picknell, 142 Vt. 215, 230, 454 A.2d 711, 718 (1982). While the trial court here made no formal ruling as to admissibility, it expressed concern regarding the relevance of the note, its lack of authentication, and potential problems with the right to confrontation. The court also acknowledged the difficulties that could arise if anonymous, exculpatory notes were admissible in criminal proceedings. Finally, the court noted the availability of procedures for seeking a new trial. Thus, defendant has failed to demonstrate that the grounds for denial of the motion to reopen were either untenable or unreasonable.

Defendant presses his appeal on constitutional grounds, however, citing Chapter I, Article 10 of the Vermont Constitution , which provides in part: "That in all prosecutions for criminal offenses, a person hath a right ... to call for evidence in his favor...." This argument was not made in the court below, and we will consider it on appeal only if it assigns "plain error," i.e., error of such magnitude as to "strike at the very heart of a defendant's constitutional rights or adversely affect the fair administration of justice." State v. Messier, 146 Vt. 145, 158, 499 A.2d 32, 42 (1985) (citations omitted). The mere assertion of a violation of constitutional rights, standing alone, does not establish plain error, per se. State v. Gilman, 145 Vt. 84, 88, 483 A.2d 598, 600 (1984). In the case before us, the court's denial of the motion has not been shown to be untenable or unreasonable; no plain error appears. ³ Moreover, although we need not consider defendant's argument further, Article 10 does not confer upon the criminal defendant an independent right to introduce evidence at trial; the "evidence in his favor" must conform to the law of evidence in order to be admissible. State v. Johnson, 143 Vt. 355, 359, 465 A.2d 1366, 1368 (1983). Thus, the trial court's denial of the motion to...