State v. Reuschel

• Decision Date: 04 December 1973
• Docket Number: No. 33-71,33-71
• Citation: 131 Vt. 554,312 A.2d 739
• Parties: STATE of Vermont v. Robert S. REUSCHEL.
• Court: Vermont Supreme Court

Page 739

312 A.2d 739

131 Vt. 554

STATE of Vermont v. Robert S. REUSCHEL.

No. 33-71.

Supreme Court of Vermont.

Dec. 4, 1973.

Patrick J. Leahy, State's Atty., for the State.

Bernard Lisman, Burlington, for defendant.

Before BARNEY, SMITH, KEYSER and DALEY, JJ., and HILL, Superior Judge.

KEYSER, Justice.

The respondent was convicted of first degree murder of Leopold Charette on July 25, 1970, by verdict of the Chittenden County jury on January, 27, 1971. He was a minor at the time of trial and the court appointed respondent's aunt as his guardian ad litem. The court stayed judgment, sentence and execution pending appeal under 13 V.S.A. § 7401. The respondent contends there was error in four respects: (1) prejudicial error by the instruction of the court to the jury on voir dire that the death penalty could not be imposed in the case; (2) insufficient evidence of premeditation; (3) inadmissibility of State's Exhibit 25; and (4) the court's refusal to accept the minor respondent's plea to second degree murder over the objections of his guardian ad litem.

I

During the vior dire one juror was asked if the state proved its case beyond a reasonable doubt would he have any difficulty in returning a guilty verdict. He stated he didn't know what the maximum penalty was in this state but was opposed to capital punishment, and if the state does that, he could not (return a guilty verdict) as he didn't believe in that. The court in light of this statement then told the jury 'that it is not up to the jury to determine the penalty in this case. The only function of the jury in this case will be to determine the guilt or innocence of the respondent.' Later during the voir dire the court stated to the jury:

Ladies and gentlemen, as I indicated to you this morning as a result of the questions asked . . . by the State's Attorney, you should not be concerned about the penalty that might be imposed in this case in the event a guilty verdict is returned. However, I will advise you that the Court does not have the power to impose the death penalty.

The respondent argues that the statement of the court raised the issue of sentencing in the minds of the jury and was prejudicial error.

We cannot agree that the issue of sentencing was raised by what the court said to the prospective jurors on voir dire. The court emphasized their only function was to determine the respondent's guilt or innocence and stated only that the court did not have the power to impose the death penalty. The court carefully avoided stating what sentences could be imposed depending on what verdict was returned. This theme that the case was to be decided on the evidence ran throughout the voir dire.

Also, the charge of the court clearly shows that the court with accuracy and minute detail instructed the jury on two occasions what the issues were for their determination. It also told the jury of the various verdicts is might render in accordance with what it found the facts to be. The record refutes any claim that there was a choice of penalty for the jury following any of the possible verdicts that it might render. The final sentence of the court's instructions was-'Return your verdict strictly on the evidence, applying the rules which we have given you, without passion, pity, sympathy, or prejudice, and you will have fulfilled the requirements of your oath.'

It should not be presumed that the jurors would depart from issues given them in charge by the court in its instructions, contrary to their oath. Children's Home, Inc. v. State Highway Bd., 125 Vt. 93, 100, 211 A.2d 257 (1965). On appeal we must assume that the jury abided by the instructions of the court. There can be no assumption under our system of jurisprudence that the jury will disregard the instructions of the trial court. Lewis v. Gagne, 123 Vt. 217, 219, 185 A.2d 468 (1962).

In addition, the respondent has failed to sustain his burden of showing that he has been prejudiced by the statement of the court. This exception is without merit.

II.

Respondent next contends the court erred in charging first degree murder to the jury because sufficient evidence of premeditation did not appear in the record.

To constitute murder in the first degree, the killing must have been wilful, malicious and premeditated. State v. Bradley, 64 Vt. 466, 472, 24 A. 1053 (1892). 'Every premeditated act is, of course, a wilful one; and deliberation and premeditation simply mean that the act was done with reflection and conceived before hand. No specific length of time is required for such deliberation.' State v. Carr, 53 Vt. 37, 46 (1880). The court there stated 'Every case must rest on its own circumstances.'

The uncontradicted evidence bearing on the issue of premeditation was that the respondent, Stephen Mulliss and Leopold Charette were together at a camp in Charlotte on July 25, 1970. The respondent by voluntary admissions made to several persons told what occurred at the camp. The gist of their testimony was that Mulliss went upstairs to shoot Charette but came back down and told respondent he couldn't do it. They had an argument about which one was going to do it. The respondent grabbed the gun and went upstairs. He turned left to the far end of the hall and went into the room where Charette was and shot him three times.

The respondent did not testify and this evidence was not challenged in any respect. The evidence at hand, if believed by the jury, established beyond question that the act of the respondent was done wilfully, deliberately, and 'with reflection and conceived before hand.' It was for the jury to determine the question of premeditation on the evidence presented and the law given it by the court. We find no error in the charge of the court as respondent alleges in this exception.

III.

The respondent alleges the court erroneously admitted State's Exhibit 25. The respondent and a Mr. Drapo, one of the state's witnesses, were confined in state prison but before trial of the case were transferred to the Regional Correctional Center. They have known each other for about eight years. This exhibit was a letter sent by the respondent to Drapo in answer to one from Drapo while they were at the Correctional Center. It was at the prison in December, 1970, that the respondent told Drapo in the presence of Blow, another inmate, referring to Charette, that 'he had shot him.' They both agreed not to testify against the respondent.

At first Drapo denied to the state's attorney that he had heard any such statement from the respondent. A few days before trial the respodnent knew Drapo was going to be a witness and didn't want him to testify to what he had told him. Drapo told respondent in his note that he had talked with his lawyer and there was no sense in perjuring himself at the trial.

Respondent's note to Drapo contained obscene language which respondent claimed was damaging to his chances for success at the trial. The letter replies to the contents of what Drapo said in his note to respondent with statements in substance like these: why did you tell your lawyer; don't give me that about perjury; how are they going to prove perjury; I don't care what you told your lawyer; if you could put Blow down you would be saving my life; I hope you don't do what you're planning; I'm disappointed in you.

One ground of the state's offer of the exhibit was that the letter shows 'a consciousness on the part of Robert Reuschel of the fact that what he (Drapo) is now saying is indeed the truth.' In other words, that the letter shows a consciousness of guilt.

Drapo testified he was acquainted with the printing style of respondent's handwriting because the respondent had written things for him; that the handwriting of the letter appeared to be that of the respondent and that he received the letter after the sent the note to the respondent. This uncontradicted evidence clearly identified the exhibit as being written and from the respondent and laid a proper foundation for its admission on this ground contrary to respondent's claim. See State v. Lacaillade, 131 Vt. 161, 163, 303 A.2d 131 (1973).

The respondent relies on State v. Beyor, 129 Vt. 472, 282 A.2d 819 (1971),...