State v. Schreiner

• Decision Date: 14 December 2007
• Docket Number: No. 06-440.,06-440.
• Citation: 2007 VT 138,944 A.2d 250
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Hope B. SCHREINER.

944 A.2d 250

2007 VT 138

STATE of Vermont v. Hope B. SCHREINER.

No. 06-440.

Supreme Court of Vermont.

December 14, 2007.

Dan M. Davis, Windham County State's Attorney, and David W. Gartenstein, Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

Jesse M. Corum IV, of Gale, Corum, Mabie, Cook & Prodan, Brattleboro, and Michael L. Levine of Michael Levine, P.C., Scarsdale, NY, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. DOOLEY, J.

Defendant was convicted of second-degree murder after a jury trial in the Windham District Court. She now appeals, arguing that the trial court erred in: (1) denying her motion for a continuance; (2) denying her an evidentiary hearing on her motion for a new trial; (3) denying her motion for a new trial; and (4) not including a manslaughter charge in the instructions given to the jury. She argues further that her conviction must be reversed because she received ineffective assistance of counsel. We affirm in all respects.

¶ 2. The evidence at trial showed the following. On June 2, 2004, defendant called 911 and reported that she had just arrived home and found her husband with his head bloodied, "like he fell out of his car." Within ten minutes, rescue personnel arrived at the scene and discovered the body of defendant's husband, Robert Schreiner, in the driveway of the Schreiners' Townshend residence. Based on their observations of the body and the dried blood near Mr. Schreiner's head, the responders concluded that Mr. Schreiner had died within the past two to three hours. When defendant spoke with medical personnel, she stated that she had arrived home a half-hour before and, after briefly going inside, came out and discovered her husband's body.

¶ 3. Approximately a half-hour later, defendant spoke with the first police officers to arrive at the scene. Defendant explained to one of these officers that she had come home from playing tennis between forty minutes and half an hour before calling the police, went in the house to look for her husband, and discovered his body upon taking the dogs out for a walk. Defendant would give somewhat different versions of this account to several other investigating officers.

¶ 4. The medical examiner concluded that Mr. Schreiner's death had been caused by blunt-force trauma that had resulted in several puncture wounds and marks that showed a wedge-shaped pattern with three prongs. No murder weapon was ever found, though there was testimony concerning a three-pronged rake that was missing from its customary storage place.

¶ 5. The examiner found evidence that Mr. Schreiner had ingested an extremely large dose of Ambien, a sleeping pill, sometime in the morning before his death. DNA evidence presented at trial established that traces of Mr. Schreiner's blood were present on the door knob to the Schreiner residence, in several garbage bags handled by defendant, on the storm door in the basement, and near defendant's vehicle. There was evidence that defendant insisted on doing laundry as she was talking to the police.

¶ 6. At trial, a friend of defendant testified that, while driving defendant to a friend's home on the night of the murder, she had asked defendant "why?" and that defendant responded that she had "just snapped." According to the friend, defendant then asked her to retrieve a bag of cat litter from the basement because it was "full of blood." The friend testified that defendant went on to make several other potentially incriminating statements, including an admission that she had "put sleeping pills in [her husband's] coffee." She made the same admission about the sleeping pills to her son. A neighbor of defendant testified that when the neighbor expressed concern that a murderer was on the loose in the neighborhood, defendant whispered to her "Don't worry. I did it."

¶ 7. The State also presented evidence of motive. Defendant was unhappy in her marriage and told others that she wanted to live separately from her husband. She became involved in a sexually intimate relationship with another man in the months before her husband's death and discussed this relationship with others.

¶ 8. In the final days of the State's case, defense counsel received an unsolicited letter from Bob Hurlbut, an inmate at the state prison in Berlin, New Hampshire. Hurlbut suggested that his second cousin may have been involved in Mr. Schreiner's murder. Defense counsel, and an investigator working on his behalf, set about investigating Hurlbut's claim, which led to a taped interview with Hurlbut. In that interview, Hurlbut related that, in 2004, his cousin said that he had to "take care" of some "dude" in Townshend who owed him money for work on a car. Hurlbut further stated that his cousin had admitted to committing several, unspecified murders in "early 2004." In the next twenty-four hours, the investigator learned that a man with the same name as the cousin was living in Hartford, Vermont and ran an auto salvage company. The defense team also discovered that the cousin was one of the suspects in an unsolved murder of a woman in 1987. In addition, defendant's son told defense counsel that Mr. Schreiner had purchased auto parts from a salvage yard and refused to pay for them because they did not work.

¶ 9. The defense lawyer first provided much of the above information to the court with an oral request for a continuance "for at least enough time to try to locate" the cousin, and then "[i]deally a week, but at least a couple days." The court read the Hurlbut letter and denied the continuance because the letter was "full of . . . speculation" and lacked any "specific information." The next day, after all the evidence in the trial had been concluded, the defense renewed the motion relying particularly on the tape of a half-hour conversation with Hurlbut. Defense counsel asked the court to listen to the tape. The court refused based on defense counsel's representation of its contents and denied the motion again finding the evidence "speculative."

¶ 10. Later in the day, defendant submitted a written "Restatement of Prior Oral Application." The court responded with a written decision, ruling that it "was extremely doubtful that the investigation would result in the discovery of admissible evidence."

¶ 11. At the end of the trial, the court instructed the jury that it could find defendant guilty of either first- or second-degree murder, or not guilty of either, and defendant did not object to this charge on the record. On March 24, the jury returned a verdict of guilty on the charge of second-degree murder.

¶ 12. On April 6, defendant filed, inter alia, a motion for a new trial based on newly discovered evidence, including both evidence generated from the investigation following the Hurlbut letter and evidence from defendant's daughter that she had taken a garden rake that had been identified as a possible murder weapon. Included in the State's memorandum of law opposing this motion was new factual information concerning Hurlbut's credibility, drawn from statements made by a police officer supposedly familiar with Mr. Hurlbut. Ultimately, the court denied the new-trial motion. The court stated that "[i]f believed," the alternative-perpetrator evidence would "probably change the result upon retrial." However, the court concluded that Mr. Hurlbut was "patently and inherently incredible," especially in light of the factual information included in the State's motion opposing a new trial. This appeal followed.

¶ 13. Defendant's first contention is that the trial court committed reversible error by denying her motion for a continuance. Although defendant's brief discusses this issue only summarily, the substance of her argument is that, in light of the evidence she presented in support of this motion, the court abused its discretion in denying it.

¶ 14. Because a motion to continue must be decided in the light of the circumstances surrounding each individual case, we will not interfere with the trial court's decision if there is a reasonable basis to support it. State v. Hanlon, 164 Vt. 125, 128, 665 A.2d 603, 605 (1995). We will reverse a trial court's decision on such a motion only if that decision constituted an abuse of discretion. State v. Ahearn, 137 Vt. 253, 267, 403 A.2d 696, 705 (1979). Thus, it is not enough for defendant to show that any court, including this one, might have reached a different conclusion. State v. White, 172 Vt. 493, 500, 782 A.2d 1187, 1192 (2001). Defendant argues that the trial court abused its discretion by not allowing her the opportunity to develop further the evidence relating to Mr. Hurlbut's allegations. Defendant also argues that the court could have granted a mere two-day continuance without prejudice to the State.

¶ 15. We cannot conclude that the trial court's decision constituted an abuse of discretion. When defendant moved for a continuance, she relied primarily on Mr. Hurlbut's vague and uncorroborated statement to support the position that she should be allowed to engage in a mid-trial investigation to elicit admissible evidence. She was pursuing the theory that the cousin was the actual perpetrator of the crime. Testimony about a possible alternative perpetrator, like Mr. Hurlbut's, may be admitted only "`as long as motive and opportunity have been shown and . . . there is also some evidence to . . . connect [the] third person to the crime charged.'" State v. Grega, 168 Vt. 363, 375, 721 A.2d 445, 454 (1998) (quoting State v. Gilman, 158 Vt. 210, 214, 608 A.2d 660, 663 (1992)); see also State v. Gibney, 2003 VT 26, ¶ 24, 175 Vt. 180, 825 A.2d 32 (same). Although Mr. Hurlbut did suggest a possible motive, his statements did not show that his cousin had opportunity to commit the crime, or even that he knew Mr. Schreiner and had any interaction with him.

¶ 16. Nor do we see this as an issue of prejudice to the prosecution. Defendant's...