State v. Verrinder, 92-484

• Decision Date: 27 December 1993
• Docket Number: No. 92-484,92-484
• Citation: 637 A.2d 1382,161 Vt. 250
• Parties: STATE of Vermont v. William VERRINDER.
• Court: Vermont Supreme Court

Page 1382

637 A.2d 1382

161 Vt. 250

STATE of Vermont v. William VERRINDER.

No. 92-484.

Supreme Court of Vermont.

Dec. 27, 1993.

John T. Quinn, Addison County State's Atty., Middlebury, for plaintiff-appellee.

Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Defendant William Verrinder appeals his conviction for second-degree murder and sentence to a term of twenty years to life. We affirm.

At around 6:30 in the evening of July 29, 1991, defendant shot and killed Kenneth Bullock. Defendant is a Vietnam veteran who has experienced the symptoms of post-traumatic stress syndrome (PTSD). He also suffers from severely impaired heart function that limits his ability to engage in activities taxing to his cardiovascular system. In the fall of 1990, while working as a bartender at the Middlebury chapter of the Veterans of Foreign Wars (VFW), defendant developed a close friendship and spent considerable time with Debra Bullock, the wife of the victim.

Kenneth Bullock was a physically imposing figure who drank heavily and regularly, and often became aggressive and confrontational when intoxicated. Bullock's wife, stepdaughter and son testified in graphic detail to physical abuse that he had inflicted on them. Sometime in late 1990 or early 1991, Debra Bullock obtained a relief-from-abuse order which forbade him to approach his family or their house. Bullock became aware of defendant's relationship with Debra, and at least twice threatened to kill defendant. Debra warned defendant that she thought Bullock carried a pistol.

Late in the afternoon of July 29, 1991, defendant and Debra Bullock arrived at her Bridport home and found Bullock, who had come by to retrieve some belongings, standing across the street from the house. At Bullock's request, she agreed to accompany him as he tried to sell several ceramic figurines. Before leaving, she told defendant that her husband still wanted to kill him and requested that defendant meet her at the house when she returned within the half hour.

The trip was fairly peaceful at the outset, but when Debra rebuffed Bullock's pleas for reconciliation, he became agitated, screamed at her, and accused her of sleeping with defendant. They made several stops during the trip. At one stop Debra called the VFW looking for defendant; she testified that she never spoke to him, but the VFW bartender testified that defendant took the call and left immediately thereafter. When the trip resumed, Bullock started driving erratically and struck Debra several times. By the time the car passed Debra's house, defendant had returned and was waiting by his truck. He saw Bullock's car speed past, Debra and Bullock struggling violently inside. Defendant pursued them in his truck.

Bullock's car came to a stop on a nearby road and Debra crawled out the passenger-side window. Bullock continued down the road for 300 to 500 feet, made a U-turn and stopped. According to defendant and Debra, defendant slowed to a stop to check on Debra, who said that Bullock was going to kill her. A witness who had stopped to help Debra testified that defendant never stopped, but instead sped down the road toward Bullock's car. Defendant crossed over into the opposite lane and the vehicles collided.

Defendant testified that Bullock emerged from his car enraged, swearing he would kill him. Defendant got out of his truck and stood by the door. The men were separated by their vehicles. Defendant took his .45 caliber pistol, which he had left in the truck some time before to be repaired, and testified that he warned Bullock to stay away. Bullock started toward defendant, defendant shot him, and Bullock dropped to the ground not far from the driver-side door of his car. Defendant then went to the back of his truck and sat down in an effort to reduce his heart rate. There was testimony that only a couple of seconds elapsed between the time of the collision and the shot. Defendant believed that his heart condition prevented him from fleeing and would have killed him had he engaged in physical combat with Bullock.

Defendant was charged with first-degree murder and claimed self-defense and defense of Debra Bullock. At trial, defendant's version of events was contradicted by evidence given by other witnesses at the scene. He was convicted of second-degree murder and sentenced to twenty years to life in prison.

On appeal, defendant alleges six errors: (1) the trial court improperly excluded evidence of an earlier alleged assault on a third person by the victim; (2) defendant allegedly made a statement to Debra Bullock just after the shooting that should have been admitted under an exception to the hearsay rule; (3) the trial court abused its discretion by not permitting an expert witness on battered woman syndrome to express an opinion that Debra Bullock suffered from the condition; (4) the State engaged in prosecutorial misconduct at trial during the taking of evidence and in closing argument; (5) the trial court should have specifically instructed the jury that evidence of specific incidents of violence on the part of the victim could be used in determining whether the victim was the first aggressor; and (6) in sentencing him, the trial court did not make written findings on all mitigating factors offered by defendant, made a finding of an aggravating factor not mentioned in the sentencing hearing, and abused its discretion by not imposing a sentence reduced from the presumptive term in light of alleged mitigating factors. We examine each point in order.

I.

Defendant first claims that the trial court erroneously prevented a witness from testifying because of a pretrial ruling limiting evidence of the victim's character to specific acts of violence known to defendant and resulting in bodily harm. He maintains that as a result of this ruling, a Dr. Stein could not testify to an incident in which he allegedly was assaulted by Kenneth Bullock. In the motions hearing, the State moved to exclude Stein as a defense witness because defense counsel had provided notice of the witness only four days before. The State had no prior notice of Stein as a witness or his proposed testimony, and Stein would have been available only for a telephone deposition until sometime during the period scheduled for trial.

Defendant represented that this incident demonstrated Bullock's aggressive nature, and was probative on the issue of whether Bullock was the first aggressor in his confrontation with defendant on the day he was killed. As such, the proffered evidence would be admissible under the V.R.E. 404(a)(2) exception to the rule excluding character evidence to prove action in conformity therewith. ¹

The court granted the State's motion to exclude Stein as a witness, for two reasons: (1) the State had insufficient notice of the witness, and (2) defendant did not witness the alleged assault, and as a result Stein's recounting of the incident itself was collateral and would lead to confusion of the issues. The court went on to say that defendant could testify to the incident if he had learned of it through Debra Bullock before the shooting. Defense counsel acknowledged that defendant was aware of this allegedly aggressive conduct at little league games, but defendant never testified to it at trial.

The trial court has broad discretion to sanction violations of discovery rules, and we limit review to an abuse of that discretion. State v. Hugo, 156 Vt. 339, 344, 592 A.2d 875, 879 (1991); see also V.R.Cr.P. 16.2(g). Rule 16.1(c) of the Rules of Criminal Procedure requires the defendant, upon timely request by the prosecution, to disclose witnesses the defendant plans to call at trial. The rule is intended to assist the prosecution in preparing for trial, State v. Meyers, 153 Vt. 219, 224, 569 A.2d 1081, 1085 (1989), and to provide an adequate opportunity to depose or interview prospective defense witnesses. Thus, if a witness is not timely revealed to the State, the trial court may limit the witness' testimony or exclude the witness altogether. See V.R.Cr.P. 16.2(g); State v. Edwards, 153 Vt. 649, 649, 569 A.2d 1075, 1076 (1989).

In Hugo, this Court upheld the trial court's exclusion of a defense witness who was disclosed to the State on the first day of trial, well after the jury drawing and discovery deadline. 156 Vt. at 344, 592 A.2d at 879. The exclusion order was valid because the witness, the defendant's father, could have been disclosed earlier, and because the court had a reasonable belief that the proposed testimony would be cumulative and repetitious. Id. at 344-45, 592 A.2d at 879.

In this case, defendant concedes that notice of Dr. Stein as a witness was late, but argues that the State had adequate opportunity to depose Stein by telephone prior to his testifying at the trial. The record does not disclose why defense counsel did not discover the Stein incident sooner than one week before trial; in that respect this situation differs from Hugo, in which the late notice was attributed to the fault of defense counsel. The result in Hugo, however, also turned on the fact that the proposed witness' testimony would not have substantially assisted the jury. Analogously, here the court noted that the Stein incident was a collateral matter, and that putting Stein himself on the stand would confuse the issues and would not assist the jury in its deliberations. More importantly, the court allowed the defense to introduce the substance of Stein's proposed testimony by ruling that defendant could testify to the alleged incident and how he became aware of it. Therefore, the exclusion of Stein himself as a witness was a reasonable exercise of discretion.

Defendant also raises for the first time on appeal the argument that the testimony should have been admitted under V.R.E. 404(b), as evidence that Bullock had the motive, opportunity...