State v. Wright

• Decision Date: 17 November 1989
• Docket Number: No. 88-247,88-247
• Citation: 154 Vt. 512,581 A.2d 720
• Parties: STATE of Vermont v. Samuel F. WRIGHT.
• Court: Vermont Supreme Court

Page 720

581 A.2d 720

154 Vt. 512

STATE of Vermont v. Samuel F. WRIGHT.

No. 88-247.

Supreme Court of Vermont.

Nov. 17, 1989.

Motion for Reargument Denied

June 29, 1990.

Certiorari Denied Jan. 7, 1991.

See 111 S.Ct. 692. Karen Shingler, Chittenden County Deputy State's Atty., Burlington, and Robert Katims, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.

Before PECK, DOOLEY and MORSE, JJ., BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

MORSE, Justice.

Defendant, Samuel Wright, was convicted by a jury of first degree murder, 13 V.S.A. § 2301, for killing Kimberly Giroux during the commission of a robbery. ¹ On appeal, he argues for a new trial based on asserted errors in the court's instructions to the jury and certain evidentiary rulings. We affirm.

Kimberly Giroux worked at the Champlain Farms convenience store in downtown Burlington. At about 6:00 p.m. on November 29, 1986, she was found dead in the store office. She had multiple stab wounds and her skull was crushed by a blow from a fire extinguisher found next to her body. Over $2000 was missing from the store. Footprints, matching defendant's sneakers, were visible in fire extinguisher residue that had been discharged in the room. Defendant's fingerprints were found on the fire extinguisher.

Defendant was a frequent customer in the store and an acquaintance of the victim. He was seen in the store at about 5:30 on the evening of November 29th. He testified that he returned about a half hour later, looked around the store for Ms. Giroux, and found her body in the back office. He moved the fire extinguisher to look at her since it was blocking her face. He was afraid to tell the police because he had been in some trouble with the police and thought he would be blamed for the murder.

Several witnesses testified that later during the evening of the 29th, defendant visited a nearby apartment with a large amount of money in small denominations stashed in several pockets, paid off a debt for cocaine that had been "fronted" to him some days before, and was uncharacteristically generous with his money, giving ten dollars to two children in the apartment and passing out dollar bills, according to one witness, "like he was dealing cards." His friends helped him count the money; one testified it amounted to $1500. That evening he also purchased more cocaine. On November 30, he bought an amethyst ring for his wife, Barbara, and she bought a new television set.

According to Barbara Wright, a knife was missing from a set in their kitchen. One of the State's experts testified that the stab wounds in the victim were inflicted by a knife with a blade similar to the one missing from the Wrights' set. At trial, defendant objected to this and other testimony given by his wife, asserting the marital privilege under V.R.E. 504.

Defendant consistently maintained his innocence of the homicide and robbery. His defense strategy at trial was to establish both his own innocence and the guilt of the victim's former boyfriend, Dominic Ladue. Defense counsel elicited testimony from several witnesses to demonstrate that Mr. Ladue had both the motive and opportunity to kill Kim Giroux. The defense suggested that he killed her in part because of his anger at her decision to have an abortion. To support this claim, the defense sought access to the victim's medical records. After reviewing the confidential records in camera, the trial court determined that they would not be helpful to the defense and refused to disclose their contents.

I. Jury Instructions on Lesser Included Offenses

In addition to instructing the jury on the elements of felony murder, as charged in the State's information, the trial court instructed the jury on the lesser included degrees of homicide, namely, second degree murder, voluntary manslaughter and involuntary manslaughter. Defendant assigns three errors to these instructions. First, over defense counsel's objection, the trial judge did not tell the jury that, between a greater and a lesser offense (e.g., first degree murder and second degree murder), the jury must presume defendant guilty of the lesser. Second, also over counsel's objection, the judge instructed that the jury must find defendant not guilty of the greater charge before it could consider a lesser included charge:

The Defendant is charged with felony murder of Kimberly Giroux, and I will explain what the State must prove for the Defendant to be found guilty of this offense. If the State cannot prove this offense, you will then have to decide whether the State has proven what is known as a lesser included offense, and I will also explain what that term means.

....

If after consideration of all of the evidence you are satisfied that the State has proven each element of felony murder beyond a reasonable doubt, then you must find the Defendant guilty. If you find that the State has failed to prove any one of these elements beyond a reasonable doubt, then you must find the Defendant not guilty of felony murder.

If you find the Defendant not guilty of felony murder, you must go on to consider the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter.

....

If the State proves each of these elements [of second degree murder] beyond a reasonable doubt, then you must find the Defendant guilty of second degree murder. If however after consideration of all of the evidence you find the Defendant not guilty of second degree murder, you must then go on to consider the lesser included offense of manslaughter. Manslaughter is divided into two types, voluntary and involuntary manslaughter.

....

If the State proves all of these elements [of voluntary manslaughter] beyond a reasonable doubt, then you must find the Defendant guilty of voluntary manslaughter. If however after consideration of all of the evidence you have a reasonable doubt about any one of these elements, then you must find the Defendant not guilty of voluntary manslaughter. You should then determine if the Defendant is guilty of involuntary manslaughter.

Third, defendant claims that the instructions on voluntary manslaughter amounted to plain error, because they included "sudden passion or great provocation" as an essential element of that offense.

On all three points, defendant is correct that the jury instructions were erroneous. State v. Duff, 150 Vt. 329, 554 A.2d 214 (1988). In the circumstances of this case, however, we hold that these errors are harmless and do not warrant a new trial.

In Duff, the defendant "admitted committing the homicide ... but claimed that he was guilty of only voluntary manslaughter...." Id. at 331, 554 A.2d at 215. The defendant accordingly introduced evidence to show that he suffered from "diminished capacity" in order to negate the malice element of murder. Id. at 333, 554 A.2d at 216. In that context, the court's errors in the charge on lesser included offenses were prejudicial and warranted a new trial. "The erroneous charge on the offense[ ] of voluntary manslaughter ... clearly affected the 'substantial rights' of this defendant whose entire theory of the case revolved around his argument that [this was] the very crime[ ] that he had in fact committed." Id. at 338, 554 A.2d at 219 (citation omitted). The effect of the court's other errors on the defendant's substantial rights in Duff was somewhat less certain:

While the trial court's erroneous charge as to the presumption of innocence as it applies to the degree of guilt or its erroneous transitional charge would not alone constitute plain error, we cannot ignore the totality of the improprieties when examining the fairness of defendant's trial.

Id. (citation omitted).

The posture of the instant case is entirely different. Unlike the defendant in Duff, this defendant consistently maintained his innocence of the homicide and robbery. Defendant contends that the " '[f]act that a defendant denies having any involvement in a crime ... does not necessarily preclude him from obtaining an instruction on a lesser included offense if there are facts in evidence that would reasonably support such an instruction.' " Brief for Appellant, at 22 (quoting State v. Green, 207 Conn. 1, 14, 540 A.2d 659, 666 (1988)). Without deciding whether this proposition correctly states the law in Vermont, we find that the facts in evidence in this case do not support the instruction on lesser included offenses. Second degree murder would have been the appropriate charge, for example, if no robbery had accompanied the homicide. But the evidence overwhelmingly established that the killing had occurred during the commission of a robbery. Manslaughter would have been the appropriate charge in the absence of malice--either by reason of sudden passion or great provocation or by reason of diminished capacity. See Duff, 150 Vt. at 331, 554 A.2d at 215. Here, however, there was no evidence whatsoever to suggest that defendant committed a homicide in sudden passion or under great provocation. ² Nor was there evidence that defendant acted under diminished capacity. ³ It is true that evidence was introduced to show defendant's abuse of alcohol, marijuana and cocaine, both during the month leading up to the homicide, and during the evening after the homicide. ⁴ No evidence, however, suggested that defendant was under the influence of drugs or alcohol at the time of the homicide. In short, the record supports a verdict that defendant was either guilty of felony murder or not guilty of any homicide, but does not support a verdict of a lesser degree of homicide.

Vermont Rule of Criminal Procedure 52(a) requires that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." We have restated the harmless error rule as follows:

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