State v. White, 00-211.

• Citation: 782 A.2d 1187
• Decision Date: 31 August 2001
• Docket Number: No. 00-211.,00-211.
• Parties: STATE of Vermont v. Robert L. WHITE.
• Court: United States State Supreme Court of Vermont

782 A.2d 1187

STATE of Vermont v. Robert L. WHITE.

No. 00-211.

Supreme Court of Vermont.

August 31, 2001.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

Defendant Robert White appeals his conviction for second degree murder following a jury trial in Rutland District Court, and the subsequent imposition of a sentence of life in prison without parole. Defendant claims that the conviction and sentence should be vacated, and the case remanded for a new trial, on the grounds that (1) the evidence presented does not support a finding of defendant's guilt beyond a reasonable doubt; (2) the failure of the police to photograph and preserve certain evidence required either dismissal of the charge against him or suppression of the evidence in question; (3) the court erred in allowing testimony regarding defendant's marital difficulties and his earlier discharge from employment at the business where the murder took place; and (4) the trial court's imposition of the sentence of life without parole, based upon aggravating circumstances, was unjustified and therefore error. We perceive no error in regard to defendant's arguments, so we affirm the conviction and sentence.

On April 18, 1998, shortly before 11:00 p.m., Jane Desmarais arrived at the Econo Lodge Motel in Rutland to begin her overnight shift as the front desk clerk. Around 1:00 a.m., a couple checked into the motel, where they observed Desmarais speaking with a man in the motel lobby. The man addressed the couple, acting as if he was participating in the check-in process. Defendant had been employed as a night clerk at the motel the previous fall and was familiar with the nighttime checkin procedures and where cash was kept on the premises.

At 2:15 a.m., a long-distance telephone call was made to the front desk of the motel by a person trying to get in touch with one of the motel's customers. When no one answered, the person tried again four or five times within the following half-hour, but was unable to reach anyone at the front desk. At 6:00 a.m., Desmarais' mother telephoned the motel, and when no one answered, went to the motel to check on her daughter. When she arrived, the entrance was locked, but inside all the lights and the television were on. After no one responded to her knocking on the door and a window, she contacted the owner of the motel, Patrick Abatiell, Sr. Abatiell then drove to the motel, unlocked the door, and entered with Desmarais' mother. They discovered Desmarais deceased, her body lying on the floor of the lobby in a location not visible from the front door. Blood spots on the floor and the arrangement of the victim's clothes suggested that the body had been moved to that spot from a more visible location. The body had been disfigured by the application of chemical solvents, including paint remover and commercial drain opener, and appeared to have been burned as well. An autopsy indicated that the cause of death had been asphyxia due to strangulation. There was over $400 in cash missing from the motel office area.

While processing the crime scene, the police took into evidence two advertising flyers, one 8½ by 11 inches in size, and the other 8½ by 5½ inches. The larger flyer had reddish-brown stains on the back, unprinted side that appeared to be consistent with blood and that resembled a palm print. The smaller flyer had on it what appeared to be a fingerprint made in blood. The flyers were submitted to the state police forensic laboratory for identification of the reddish-brown stains as well as to make an identification of the prints. In the course of processing the larger flyer to identify the palm print, the document was sprayed with ninhydrin, a chemical used to reveal more of the full hand print on the flyer. The ninhydrin treatment revealed latent fingerprints as well. After determining that the reddish-brown substance was indeed blood, a portion of the palm print was cut out by the crime lab in order to preserve it for any future testing which might be necessary. The palm print and fingerprint impressions on both flyers were subsequently identified as matching those of the defendant, and a sample of blood taken from the palm print was identified as that of the victim.

Prior to trial, defendant moved the court to exclude the evidence obtained from the larger flyer, or to dismiss the charges, arguing the physical evidence had been destroyed by the forensic laboratory's cutting of the flyer and chemical treatment. During the trial, defendant filed a motion to exclude the testimony of Patrick Abatiell, Jr., manager of the Econo Lodge, regarding the circumstances surrounding defendant's termination from the motel. Defendant also objected during trial to the introduction of testimony regarding the marital difficulties he was experiencing at the time of the murder. The court denied the motions and the objection, and at the conclusion of the trial the jury entered a verdict of guilty. On April 27, 2000, after the sentencing hearing, the court issued its findings and sentence.

Defendant first argues that the evidence presented was insufficient, as a matter of law, to support a finding of guilt beyond a reasonable doubt. During the trial, defendant moved the court once to dismiss for lack of a prima facie case, twice — at the conclusion of the prosecution's and the defense's case — for acquittal, and once for acquittal notwithstanding the guilty verdict. All of these motions were denied.

We review all of these motions under the same standard — we must determine "whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has produced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt." State v. Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37 (1995) (internal quotations and citations omitted); see also V.R.Cr.P. 12(d) (motion to dismiss), 29 (motion for judgment of acquittal). The evidence presented must be considered together, not separately, State v. Grega, 168 Vt. 363, 380, 721 A.2d 445, 457 (1998), and thus even if each piece of circumstantial evidence presented may be explained in some way that does not link the defendant to the murder, this does not mean that an acquittal must be entered. A judgment of acquittal is proper "only if the prosecution has failed to put forth any evidence to substantiate a jury verdict." State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999). Under this standard, we conclude that the court's denial of the motions was proper.

Defendant claims that there is no direct evidence that he killed the victim, and that the circumstantial evidence presented does no more than create a suspicion or conjecture that defendant murdered the victim. See State v. Durenleau, 163 Vt. 8, 12-13, 652 A.2d 981, 982 (1994) (evidence presented must add up to more than mere speculation) (citing State v. Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378 (1991)); cf. State v. Miller, 146 Vt. 164, 169, 502 A.2d 832, 835 (1985) ("Circumstantial evidence will sustain a conviction if it is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt."). We disagree. The State presented circumstantial evidence that included physical evidence of defendant's palm print, made in the victim's own blood by transferring the blood upon contact from his hand to the flyer before the blood dried, therefore linking the defendant to the crime scene at or near the time of the murder; evidence of the opportunity provided by his advance knowledge of the nighttime routine and operation of the motel; evidence that the defendant had recanted his original story to the police regarding his whereabouts on the night of the murder; and testimony as to defendant's expressing possible inside knowledge of the crime to an off-duty police officer. This evidence, in conjunction with the rest of the evidence presented by the State, was sufficient to allow a reasonable trier of fact to conclude beyond a reasonable doubt, and not merely suspect, that defendant was guilty of Desmarais' murder.

Defendant next argues that the State failed to properly preserve the evidence used against him when they cut out a piece of the advertising flyer with a bloody palm print for testing.¹ He claims that the investigating officers were negligent in failing to photograph the fliers, and that the question of whether the blood got on the paper via a bloody hand, or if a clean hand was placed on already-bloodied paper, has been "forever eliminated" by the absence of a photograph of the untreated and uncut flyer. Defendant asserts that this "missing" exculpatory evidence warranted dismissal of the charges against him, based upon our decision in State v. Bailey, 144 Vt. 86, 475 A.2d 1045 (1984) (adopting three-prong test from United States v. Bryant, 439 F.2d 642, 653 (D.C.Cir.1971), to be applied in determining whether to dismiss indictment because of State's failure to preserve evidence).

Defendant presented the trial court with several theories as to the exculpatory value of the evidence at issue. He argued that without a photograph of the flyer, taken before the application of the ninhydrin and the removal of a portion for blood analysis, it was impossible to prove or disprove the existence of marks, stains, or other information on the flier, the time the blood was deposited on the flier relative to the death of the victim, or whether the palm print was fabricated or planted on the crime scene. However, defendant did not argue before the trial court the one argument he presents to this Court — that the lack of a direct, pre-ninhydrin application, pre-cutting photograph of the flier could have indicated whether...