State v. Yoh

• Decision Date: 08 September 2006
• Docket Number: No. 00-160.,No. 05-083.,00-160.,05-083.
• Citation: 910 A.2d 853,2006 VT 49A
• Parties: STATE of Vermont v. Herman L. YOH.
• Court: Vermont Supreme Court

910 A.2d 853

2006 VT 49A

STATE of Vermont v. Herman L. YOH.

No. 00-160.

No. 05-083.

Supreme Court of Vermont.

September 8, 2006.

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Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee (00-160).

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant (00-160).

Michael Rose, St. Albans, for Petitioner-Appellant (05-083).

Robert Simpson, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Respondent-Appellee (05-083).

Present: REIBER, C.J., DOOLEY and JOHNSON, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned.

JOHNSON, J.

¶ 1. This appeal arises from the first-degree murder conviction of appellant Herman Yoh for the 1997 killing of his wife, Mary Yoh. We have consolidated our review of appellant's direct appeal and his petition for post-conviction relief (PCR). In his direct appeal, appellant argues that the district court erred by: (1) failing to suppress his confession; (2) admitting evidence of his prior bad acts; and (3) refusing to instruct the jury on the lesser-included offense of voluntary manslaughter. In his appeal from the denial of his PCR petition, appellant contends that the superior court erred by granting summary judgment despite the existence of genuine issues of material fact regarding appellant's claim of ineffective assistance of counsel. We affirm appellant's conviction, but we reverse in part the superior court's grant of summary judgment with respect to appellant's PCR petition, and we remand the petition to the superior court for further proceedings. We also consider appellant's challenge to his sentence, raised after oral argument in light of our recent decision in State v. Provost, 2005 VT 134, 179 Vt. ____, 896 A.2d 55, and we remand to the district court for resentencing.

¶ 2. Appellant was convicted by a jury of first-degree murder in October 1999 and sentenced to life without the possibility of parole in April 2000. The body of Mary Yoh was found, wrapped in a blanket, beside a rural road in Williston, Vermont, on March 7, 1998. She had been strangled to death, and there were bruises on her face. Police located appellant in Reading, Pennsylvania, and Pennsylvania state troopers arrested him on March 18, 1998. The Pennsylvania troopers, prior to interviewing appellant, read him a form listing his Miranda rights, and appellant signed a form waiving these rights. During the interview, the troopers, acting on instructions from law enforcement personnel in Vermont, did not inform appellant that Mary's body had been found, instead asking if he could provide any information regarding her disappearance. Appellant told the Pennsylvania troopers that he had last seen Mary on December 20, 1997, the day after he and Mary had attended a Christmas party for the staff of the Residence Inn in Burlington, where Mary had worked. The party took place at the Radisson Hotel in Burlington, and the Yohs had reserved a room at the hotel. Appellant told the troopers he had taken Mary home from the party because she was feeling ill from drinking too much. He said that he left her in their home the next day, called her workplace and told them she would not be coming in that day, and left to run some errands. When he returned, Mary was gone. According to his story he remained for another day, then left for Reading, Pennsylvania, where his former wife and children lived. When asked for an explanation of why Mary had disappeared, appellant mentioned that she had been involved in a legal dispute with a Vermont bail bondsman named Shelley Palmer, who once employed appellant. After this interview, appellant was charged with Mary's murder.

¶ 3. On March 20, 1998, two days after appellant's interview with the Pennsylvania troopers, Vermont State Police detectives Dane Shortsleeve and Thomas Nelson interviewed appellant at the Pennsylvania State Police barracks. After again reading appellant his Miranda rights, the detectives conducted a tape-recorded interview, in which they continued to act as if Mary were only missing, not dead. Appellant referred them to the Pennsylvania troopers' interview notes and continued to assert that he had last seen Mary the morning after the party. After approximately two hours of questioning, the detectives informed appellant that Mary's body had been found and that she had been murdered. Appellant reacted as if he was surprised, and he did not change his story. The detectives then began to accuse appellant of committing the murder. They pointed out inconsistencies between appellant's story and the physical evidence, including Mary's autopsy results, blood spatters on the walls of the Yohs' hotel room, and the accounts of witnesses who had heard an argument in the room. Appellant denied that there had been an argument or a fight between Mary and him, and he continued to deny any role in Mary's disappearance. Finally, he accused the detectives of "trying to trip me up" and said "it all stops here." When Detective Shortsleeve continued to talk to him, appellant said, "You're trying to trip me up, you get an attorney in here or something." Detective Shortsleeve insisted that he was not trying to trip appellant up. Detective Nelson then asked appellant if he wished to stop talking to the detectives, and appellant responded, "Yeah." When Detective Shortsleeve asked him why he wanted to stop talking, appellant responded, "Because." Detective Shortsleeve then continued questioning appellant for several more minutes, attempting to convince appellant to help his own cause by portraying the murder as an accident, stating that appellant would not be able to talk to the detectives again, and at one point, saying:

You expect to get out of jail before you're ninety years old, you need to tell us. Goes right here on the tape, you're not going to get another opportunity. You know we're talking to your family, you want to leave them with any good feelings, let us be able to tell them that this was an accidental thing. Tell us what happened in the room that night.

Appellant responded that he had already told them what happened, and after a few more statements about the strength of the case against appellant, the detectives ended the interview.

¶ 4. Later the same day, while being transported from the barracks by one of the Pennsylvania state troopers who had conducted the original interview, appellant asked the trooper whom the Vermont detectives would talk to next. The trooper responded that he did not know. Appellant repeated his question, and the trooper said that he did not know, but that if it were his investigation, he would find out whether appellant's family in Pennsylvania had any information. A short time later, appellant told the trooper, "If you can keep those guys off my family, I will tell them everything they want to know." He was then brought back to the barracks, and the Vermont detectives were informed that appellant wanted to talk to them again.

¶ 5. When appellant arrived at the barracks, Detectives Shortsleeve and Nelson, after reading appellant his Miranda rights again and having him sign another waiver, conducted appellant's third interview, which was videotaped. During this interview, appellant admitted that he and Mary had an argument in the hotel room, and that Mary threatened to call the police. Appellant stated that when Mary reached for the telephone, he "blacked out." When he awoke, Mary was dead. Appellant claimed that he "snapped" and could not remember what happened after Mary reached for the telephone. He then described wrapping Mary's body in a blanket, carrying the body to his car, and driving to the place where the body was found. When the detectives asked whether appellant had any doubt that he had killed Mary, he responded that he could not remember doing so, but that there was no one else in the room.

¶ 6. Prior to trial, appellant's counsel, Jerry Schwarz, informed the trial court that he would not seek suppression of appellant's confession because his investigation revealed no basis for suppression. The videotape of appellant's confession and Detective Shortsleeve's description of his two interviews with appellant were admitted into evidence without objection. Also before trial, Schwarz moved to suppress evidence of appellant's prior physical abuse of Mary, including a May 1996 domestic assault that resulted in a conviction, a November 1996 assault that was reported to police, and a January 1997 complaint to the police about appellant's apparent theft of Mary's money and her car. The trial court admitted evidence of the May 1996 and January 1997 incidents but excluded evidence of the November 1996 incident on hearsay grounds.

¶ 7. At trial, in addition to evidence of appellant's statements and his prior misconduct, the jury heard testimony from a forensic expert as to the cause and time of Mary's death, and from guests at the hotel who heard an argument between appellant and Mary on the night of the party. Appellant's defense consisted primarily of evidence, including his own testimony, that Shelley Palmer, the bail bondsman appellant had mentioned in his interview with the Pennsylvania troopers, had hired two hit men, who entered appellant's hotel room, knocked him unconscious, and killed Mary. At the conclusion of the trial, the jury received instructions with respect to both the voluntariness of appellant's confession and the purpose of the evidence of appellant's prior conduct. Schwarz requested an instruction on the lesser-included offense of voluntary manslaughter, but the trial court denied this request and instructed the jury regarding first-degree and second-degree murder. The jury convicted appellant of first-degree murder, and the trial court,...