State v. Russo, 2004 VT 103 (VT 10/8/2004)

• Decision Date: 08 October 2004
• Docket Number: No. 2003-348, June Term, 2004,2003-348, June Term, 2004
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Vito Russo

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2004 VT 103

State of Vermont v. Vito Russo

No. 2003-348, June Term, 2004

Supreme Court of Vermont

Filed October 8, 2004

On Appeal from District Court of Vermont, Unit No. 1, Windham Circuit, Karen R. Carroll, J.

Dan M. Davis, Windham County State's Attorney, and Scott A. Willison, Deputy State's Attorney, Brattleboro, and Jane Woodruff, Executive Director, State's Attorneys' and Sheriffs' Department, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Henry Hinton, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J.,¹ Dooley, Johnson, Skoglund and Reiber, JJ.

DOOLEY, J.

¶ 1. Defendant, Vito Russo, was convicted by a jury of aggravated assault, unlawful trespass, driving under the influence of intoxicating liquor, driving with license suspended and four violations of conditions of release. He received a sentence of twenty-one years to serve. He appeals both his conviction for aggravated assault² and his combined sentence claiming that: (1) the evidence does not support his conviction; (2) the trial judge wrongfully limited testimony from the sole defense witness; (3) the trial judge failed to charge simple assault and reckless endangerment as either lesser-included or lesser-related offenses; (4) the twenty-one year sentence was based on a pre-sentence investigation (PSI) report containing a psychological evaluation conducted by a non-expert who was unavailable for cross-examination; and (5) trial counsel was ineffective.³ Having considered those issues preserved for appeal, we affirm the conviction.

¶ 2. In addition to the claims considered in this appeal, defendant, in his pro se brief, raises ten other arguments, not properly preserved for appeal. Defendant alleges that: (1) the rifle found in his car was the fruit of an illegal search; (2) the trial court allowed the State's witnesses to testify based upon hearsay and speculation; (3) limitations on the scope of cross-examination violated defendant's right to confront the State's witnesses; (4) the prosecutor's friendship with the victim and involvement in an ongoing civil case where both the victim and defendant were parties constituted prosecutorial misconduct; (5) the random elimination of two non?designated alternate jurors constituted jury tampering; (6) key pieces of evidence were kept from the jury during deliberation; (7) the State failed to disclose the PSI report to defendant in a timely manner; (8) the State misrepresented and misapplied defendant's criminal record during sentencing; (9) no defense was permitted during sentencing; and (10) the jury was given an incorrect instruction regarding intent and voluntary intoxication. The record shows that none of these claims was preserved during proceedings in the trial court; issues not raised during trial cannot subsequently be raised on appeal. State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 25-26 (1993).⁴ Accordingly, we do not consider these arguments, and now turn to the facts of the case.

¶ 3. In 1999, defendant purchased the Unique Motel and Gift Shop from John McKay under a payment plan where McKay retained the deed until defendant paid for the property in full. The two were close friends until a dispute arose regarding defendant's monthly payments. McKay foreclosed on the property, and defendant's family was subsequently evicted from the motel. On November 17, 2002, in the late afternoon, following the eviction, defendant visited McKay with the intent to offer him $5000 for permission to reside in the motel with defendant's family through the holidays. According to McKay's testimony, he immediately demanded that defendant leave his property, and defendant responded by pointing a gun at him. McKay then fled in his plow truck, pursued by defendant in his standard transmission Dodge Colt. Defendant fired four shots in McKay's direction, while the two vehicles dodged in and out of traffic, passing residences, businesses and the state police barracks. The chase continued for five miles, until McKay pulled into the Brattleboro Police Station, followed by defendant, who was arrested by officers on the scene.

¶ 4. After a jury trial, defendant was convicted of repeatedly firing the rifle at McKay while driving his vehicle under the influence of alcohol. Although defendant maintained his innocence throughout the trial, defense counsel's main argument was that defendant lacked the capacity to form intent due to intoxication and diminished mental state resulting from the eviction and his family's financial problems. Defendant's fiancée, whom he has since married, was the defense's only witness. She testified that on November 17, 2002, prior to visiting McKay, defendant was drunk, walking in circles and mumbling to himself. To make its case, the State presented McKay's testimony, testimony of two of McKay's tenants who claimed to have heard gun shots fired, testimony of the police officers who interviewed McKay and arrested defendant, the bolt-action rifle found in defendant's car, and four empty shell casings.

¶ 5. After he was convicted, defendant was sentenced by the superior court judge to fifteen to twenty-one years to serve on the multiple convictions.⁵ During the sentencing hearing, the State presented a PSI report containing a psychiatric evaluation. Defendant argued then, and reiterates during this appeal, that the evaluation was prepared by a non-expert who was not available for cross-examination. The judge initially ruled that it was defense counsel's obligation to subpoena the evaluator, but ultimately decided not to rely on the evaluation. Other factors contributing to defendant's twenty-one year sentence included prior offenses and that the incident occurred while defendant was subject to a court order forbidding any contact with McKay.

¶ 6. Defendant first contends that his conviction is against the weight of the evidence and the trial judge should have directed a judgment of acquittal. Defendant argued at trial, as he does here, that the conduct for which he was convicted was physically impossible. He asks us, in this appeal, to consider whether it is possible for him to fire a bolt-action rifle multiple times while driving a standard transmission vehicle, given that both tasks require the use of two hands. Additionally, defendant points out that the State's case lacks the plethora of witnesses that one would expect when shots are fired on a public road in a prolonged car chase during the late afternoon, passing residences, businesses and the state police barracks.

¶ 7. The jury was in the best position to determine whether the alleged conduct was physically possible and whether the alleged events took place. This Court does not substitute its own findings of fact for those of the jury. See State v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595, 830 A.2d 122 (mem.) (noting that acquittal is only proper if there is no evidence to substantiate a jury verdict); State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999). We will grant a judgment of acquittal only where no reasonable juror could have found defendant guilty beyond a reasonable doubt if the evidence is viewed in the light most favorable to the State. Turner, 2003 VT 73, ¶ 7; Couture, 169 Vt. at 226, 734 A.2d at 527. We cannot conclude that defendant has demonstrated that the charged conduct was impossible. Here, a reasonable juror could have based the conviction on the testimony of McKay and other witnesses, as well as circumstantial physical evidence.

¶ 8. In addition to claiming the impossibility of the events for which he was convicted, defendant argues that the State did not introduce sufficient evidence of his specific intent to harm McKay and that the only evidence regarding specific intent was put forth by the defense. It is common, however, that the mental element of an offense must be inferred from the defendant's conduct. See State v. Alexander, 173 Vt. 376, 385, 795 A.2d 1248, 1255 (2002) (using the same facts to prove kidnapping act and intent). The State's evidence that defendant assaulted McKay is sufficient for a jury to infer that the assault was intentional. Allowing the State to use circumstantial evidence to prove intent does not, as defendant argues, relieve the State of its burden to prove each element of the crime. See State v. Findlay, 171 Vt. 594, 599, 765 A.2d 483, 489 (2000) (mem.). The jury was properly instructed on the State's burden to prove beyond a reasonable doubt that defendant specifically intended to assault McKay. The jury considered defendant's claim that due to his mental state he could not form specific intent to harm McKay and nonetheless chose to convict.

¶ 9. In a related argument, defendant contends that the trial judge prevented him from demonstrating his lack of specific intent by limiting the scope of his wife's testimony, the only defense witness. She was not permitted to testify that defendant's mother had lost her life savings as a result of the dispute between defendant and McKay or that her family was homeless and had applied for public assistance. Defendant also argues that the court's evidentiary rulings prevented the witness from describing any of the events leading up to the incident on November 17.

¶ 10. This issue has changed somewhat between its presentation to the trial court and its presentation here. The evidentiary issues began to arise when defense counsel wanted to show that defendant's mother had contributed substantial amounts of money and had lost it in the foreclosure, and so asked the witness who had made the down payment on the motel. After objection from the prosecution, defense counsel argued that the evidence went to defendant's mental state on the day of the incident. The court inquired about the mental state rationale because defendant had not given notice of an insanity defense. The court explained:

[T]he only defense I've heard about is this diminished capacity, which is...