State v. Trombly, 85-199

• Decision Date: 24 July 1987
• Docket Number: No. 85-199,85-199
• Citation: 148 Vt. 293,532 A.2d 963
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Michael L. TROMBLY.

Page 963

532 A.2d 963

148 Vt. 293

STATE of Vermont v. Michael L. TROMBLY.

No. 85-199.

Supreme Court of Vermont.

July 24, 1987.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Biederman & Rakow, P.C., Rutland, and Patrick L. Biggam, Montpelier, for defendant-appellant.

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

PECK, Justice.

Defendant appeals from his conviction of attempted murder in the first degree. He contends that the evidence was insufficient to support the verdict and asserts numerous claims of error in the conduct of the trial. We affirm.

I.

In the evening of July 16, 1983, the Montpelier police department received notice of a disturbance at the house where defendant lived with his wife and son. Upon arriving at the house, two officers were informed by the defendant's son that the defendant was inside the apartment with his [defendant's] wife, and inflicting physical harm upon her. The son also stated that the defendant had broken up furnishings in the apartment and had beaten him, and that he had only gotten away from his father when his mother intervened between father and son. The son also informed the police officers that the defendant had a .22 caliber rifle.

Other officers arrived at the scene. Through a window, some of the officers saw the defendant grab a woman and assault her, and all of the officers heard screams, shouting and slapping sounds. One of the officers tried to reason with the defendant through a broken window in the kitchen door, but was met by an obscene response, to which defendant added: "Come in. I got something for you." Another officer tried to negotiate with defendant over the phone, but the defendant again answered with a string of profanities that could be heard throughout the neighborhood.

While the defendant was on the phone, the officer at the kitchen door gestured to the defendant's wife to leave. Seeing his wife edge toward the door, the defendant pulled the curtain across the broken window, bolted the door and turned out the lights, including the porch light. He later turned the outside porch light back on, illuminating a portion of the porch and the yard.

The chief of the Montpelier police force and other police officers repeatedly called the defendant and attempted to convince him to release his wife. The defendant sometimes responded by conversing in normal tones, while at other times he shouted and screamed epithets and threats at the police. Responding to one call, the defendant shouted an obscenity, telling the police that if they tried to rescue his wife, he would "shoot any cop that comes near the house."

In the early morning hours the defendant's wife persuaded him to go to sleep. After he fell into a deep sleep, with his gun resting at his side, she slipped out of the house. With Mrs. Trombly safe, the police implemented a plan to arrest the defendant. A tear gas cannister was thrown toward a window, but bounced back into the yard and exploded. Wakened by the noise, the defendant challenged the police to "come a little bit closer. Let me see you so I can take care of you."

A second tear gas cannister was then thrown through the broken kitchen window, and it exploded inside. The officer who threw the cannister had crept close to the house to do so, and as he ran toward cover behind the garage, approximately five shots rang out in quick succession, two of which struck him in the leg. When removed from the officer's leg the two slugs were found to be hollow point bullets, which cause increased bleeding and damage. Immediately after firing the shots, the defendant called out, "Don't try that again. Come closer and I'll shoot the next one, then I'll shoot myself."

Roughly one hour later, the defendant again hailed the police, stating that he did not have the nerve to shoot himself, and that he wanted to surrender. He emerged on the kitchen porch holding a dog on a leash in one hand, and carrying his sneakers in the other. Apparently oblivious to or ignoring the officers' commands to put his hands up, the defendant tied his dog to a chain and began putting on his sneakers; calm at that point, he told the police to "go ahead and shoot."

The defendant was arraigned on charges of attempted murder in the first degree, and kidnapping; his subsequent motion to sever the two charges was granted. Trial was held on the attempted murder charge in July of 1984. Defendant introduced a defense of diminished capacity in an effort to convince the jury that he lacked the ability to act with the premeditation necessary for an attempted first degree murder conviction, and that he was unable to form the requisite intent to justify a conclusion that he could have attempted first degree murder. Testifying for the defendant, two psychiatrists stated their opinion that the defendant lacked premeditated intent at the time of the shooting. They also testified that the defendant suffered from a number of personality disorders. The State stipulated to the existence of personality disorders, and did not present psychiatric testimony with regard to the defendant's ability to formulate intent.

The court instructed the jury on attempted first and second degree murder, omitting a charge on attempted manslaughter at the defendant's request. The court also instructed the jury with regard to the defense of diminished capacity. The jury returned a guilty verdict of attempted first degree murder. The defendant filed post-judgment motions for judgment of acquittal and a new trial. These motions were denied, and this appeal followed. Defendant is currently serving a sentence of no less than fifteen years nor more than twenty years.

II.

The defendant first contends that the court erred in denying his motion for a new trial, made pursuant to V.R.Cr.P. 33. The defendant asserted in the motion, as he does on appeal, that the jury's verdict was against the weight of the evidence.

In State v. Ladabouche, 146 Vt. 279, 285, 502 A.2d 852, 856 (1985), this Court held "that a new trial based upon the weight of the evidence should be granted only where the evidence preponderates heavily against the verdict and a serious miscarriage of justice would otherwise result." In reaching this holding, the Court rejected the "thirteenth juror" standard, stressing that the jury is the ultimate arbiter of questions of fact, id. (quoting State v. Morrill, 127 Vt. 506, 512, 253 A.2d 142, 146 (1969)), and that the granting of a new trial is a remedy to be used sparingly and only in exceptional circumstances. Id. at 284, 502 A.2d at 856 (citing United States v. Phifer, 400 F.Supp. 719, 722 (E.D.Pa.1975)).

The gravamen of the defendant's claim of error is that no jury could reasonably have found that the defendant acted with malice after premeditation and deliberation, the elements necessary for a verdict of attempted first degree murder. See State v. Girouard, 135 Vt. 123, 138, 373 A.2d 836, 846 (1977). The defendant relies on the testimony of the two expert witnesses that he lacked the capacity to form the requisite premeditated intent, and upon the evidence of his bizarre and aberrant behavior throughout the whole episode.

In reviewing this same argument, the trial court observed that the jury was free to disregard the expert testimony, id. at 137, 373 A.2d at 845, and concluded that "[t]here was considerable evidence of a non-expert nature placed upon the scales in the State's favor." It cannot be said that the court abused its discretion in reaching this conclusion. Notwithstanding his aberrant conduct, the defendant's behavior throughout the confrontation did demonstrate a calculated intent to commit murder. He purposefully turned on the porch light and kept the yard area illuminated throughout most of the confrontation, carried his gun with him at all times, and repeatedly threatened the police officers who had surrounded his house. When the tear gas cannister was thrown through the first floor window, he responded by firing a rapid burst of shots at the fleeing police officer from an upstairs window, using hollow point bullets, and wounded the officer twice in the leg. The verdict was supported by credible evidence; we are unable to find that the trial court abused its discretion in denying the motion for a new trial. ¹

III.

The defendant next contends that the trial court erred in denying his pretrial motion to dismiss for lack of a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. The motion was filed on April 20, 1984, nine months after his arraignment on July 18, 1983. Defendant does not contend that the time period between the filing of the motion and the actual date of trial three months later should be considered; accordingly, the focus of our review is the nine months leading up to the filing of his motion.

Under A.O. 5, § 2, "cases in which the defendant is in custody shall proceed to trial within 90 days from the date of arraignment, except for exceptional circumstances, showing cause for temporary postponement." In determining whether a defendant's trial was improperly delayed more than ninety days, periods of delay occasioned by pretrial motions and preliminary psychiatric evaluation are omitted from consideration. Id. § 4; State v. Williams, 143 Vt. 396, 401, 467 A.2d 667, 669-70 (1983). A conclusion that the trial was delayed more than ninety days triggers further inquiry into the reason for the delay, the defendant's assertion of his right, and the resultant prejudice to him. Id. (citing Barker v. Wingo, 407 U.S. 514, 532-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972)).

Defendant's claim does not successfully cross the threshold computation of the length of delay. First, he was committed to the state hospital for three of the nine month period for psychiatric evaluation of his competency to stand trial, and, at his own request, to assess his capacity to form...