State v. Gilman

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 90-051



 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Timothy Gilman                               Unit No. 3, Caledonia Circuit

                                              February Term, 1992


 Shireen Avis Fisher, J.

 Robert M. Butterfield, Caledonia County Deputy State's Attorney, St.
   Johnsbury, for plaintiff-appellee

 Robert Katims and David Venman, Law clerk (On the Brief), of Martin &
   Paolini, Barre, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.   Defendant Timothy Gilman appeals his conviction for
 assault and robbery, 13 V.S.A. { 608(a),(c), and burglary, 13 V.S.A. {
 1201(a).  He argues that the district court erred in refusing to suppress
 his confession and in rejecting his attempt to offer certain exculpatory
 evidence.  He also argues that the State's failure to charge specific acts
 violated his right to a unanimous jury verdict.  We affirm.
      In the course of a domestic dispute on the morning of March 24, 1989,
 defendant followed his girlfriend to the state police barracks in St.
 Johnsbury.  After police officers separated defendant from his girlfriend,
 defendant volunteered that he had information about welfare fraud and drug
 crime.  The officers expressed interest, but told him he was free to go and
 that he was under no obligation to talk with them.  Defendant stayed.  He
 was agitated but grew more calm as his visit continued.
      He and the officers discussed the possibility that he might become a
 confidential informant.  The officers told defendant he could be reimbursed
 for expenses and that he might be entitled to a percentage of any proceeds
 gained from the sale of property under the federal drug forfeiture law.  The
 officers also told him he would not be prosecuted for having grown marijuana
 in the median strip of the interstate highway, and that they would not
 reveal to suspects that he had provided them with incriminating information.
 The officer in charge of drug investigations then asked defendant a few
 questions to test his veracity.  Believing that a brother of defendant had
 been involved in the unsolved burglary and assault for which defendant now
 stands convicted, the officer asked defendant about his brother's involve-
 ment in those offenses.  Defendant responded, "We did that."
      The officer in charge of investigating the burglary and assault then
 entered the discussion.  Defendant agreed to discuss the crime, and the
 officer read him his Miranda rights, which defendant waived in writing.
 Prompted by the officer, defendant described the crime: at about 10 p.m. on
 June 19, 1983, defendant's girlfriend dropped him and his two younger
 brothers off near the home of Alfred Smith and Harriet Masure in
 Lyndonville.  Defendant had heard that Smith had a safe, and he and his
 brothers intended to force Smith to open it and give them its contents.  The
 three brothers entered the home with their faces masked and found Masure
 watching television while Smith dozed.  The brothers demanded that Smith
 open the safe, but he refused and grabbed a hammer.  In the ensuing
 struggle, the brothers beat Smith, inflicting severe facial injuries.
 Nonetheless, Smith continued to refuse to open the safe, and the brothers
 shut him and Masure in a bathroom.  Smith escaped through a window, but the
 brothers left the home empty-handed before help could arrive.
                                     I.
      Defendant moved to suppress his confession on grounds that he had been
 irrational at the time and had been led to believe he would not face
 prosecution or would be treated leniently for any conduct he described to
 police.  At a hearing on the motion, defendant and three police officers
 testified about their conversations at the barracks.  The court denied
 defendant's motion, finding that defendant was motivated by a desire to "get
 it off his chest."  The court found no connection between the confession and
 any promises concerning the possibility of defendant becoming a confidential
 informant.
      The Fifth and Fourteenth Amendments to the United States Constitution
and Chapter I, Article 10 of the Vermont Constitution (FN1) prohibit the intro-
duction of an involuntary confession into evidence.  See State v. Badger,
141 Vt. 430, 438, 450, 450 A.2d 336, 341, 347-48 (1982).  Whether a
confession is involuntary is determined by examining the totality of the
circumstances.  State v. Stanislaw, 153 Vt. 517, 532, 573 A.2d 286, 295
(1990).  The ultimate question is whether police officers' threats,
promises or coercion were sufficient to overcome the defendant's free will
or rational intellect, causing the defendant to confess.  Id.  A trial
court's findings in support of its decision to suppress or admit a con-
fession must stand if they are supported by substantial credible evidence.
Id.
      In the present case, the testimony at the suppression hearing showed
 that defendant arrived at the state police barracks uninvited.  He initiated
 a discussion about crime.  He was told he was free to leave.  The officers
 discussed the implications of his becoming a confidential informant, but
 never promised that he would not be prosecuted if he admitted having com-
 mitted a serious felony unrelated to the subject of their discussion, drug
 crime.  Whatever defendant may have thought, the evidence does not suggest
 that his confession was the result of police pressure.
      The court's findings are supported by substantial credible evidence,
 and the findings support the court's refusal to suppress the confession.
 There was no error.
                                     II.
      Defendant next argues the court erred in excluding evidence of Mr.
 Smith's relationship with a Mr. Camber.  On cross-examination, Mr. Smith
 conceded that shortly before the crime he had filed a suit against Mr.
 Camber for assaulting him a year or two earlier.  The State objected and
 asked that no further testimony concerning Mr. Camber be allowed.  In his
 offer of proof, defendant stated that three to five days after the crime
 Mr. Camber had told two police officers he knew who was involved and where
 weapons had been thrown.  Defendant argued that evidence about Mr. Camber
 was relevant to exculpate defendant because Mr. Camber had a motive and
 knowledge sufficient to indicate he might have been a participant.
 Defendant planned to call Mr. Camber and, if necessary, impeach him with his
 statements to the police officers.
      Questioned by the court, defendant conceded that Mr.Camber had not
 implicated himself directly and subsequently had denied knowledge and
 refused to discuss the crime.  The State argued that any testimony about Mr.
 Camber would raise only speculation because there was no evidence that
 anyone other than the Gilman brothers was involved.  The court concluded the
 issue was "extrinsic," and barred defendant from inquiring further about Mr.
 Camber.
      Defendant argues the court's ruling violated his right to present
 exculpatory evidence under Chapter I, Article 10 of the Vermont Constitution
 and the Sixth Amendment to the United States Constitution.  A defendant is
 entitled to call witnesses and present evidence on his behalf, but the
 evidence must be otherwise admissible.  State v. Kelly, 131 Vt. 582, 588,
 312 A.2d 906, 909 (1973); see also State v. Kennison, 149 Vt. 643, 650-51,
 546 A.2d 190, 195 (1987) (evidence that third party may have committed crime
 was too attenuated to be admitted).  The court may exclude evidence when the
 danger of unfair prejudice or confusion substantially outweighs its pro-
 bative value.  V.R.E. 403; State v. Larose, 150 Vt. 363, 368, 554 A.2d 227,
 231 (1988).  Specifically, evidence tending to show a third party's involve-
 ment in a crime should be admitted "as long as motive and opportunity have
 been shown and . . . there is also some evidence to directly connect [the]
 third person to the crime charged . . . ."  State v. Denny, 120 Wis. 2d.
 614, 624, 357 N.W.2d 12, 17 (Wis. Ct. App. 1984).
      In the present case, the court was well within its discretion in
 barring defendant from presenting evidence about Mr. Camber.  Defendant's
 offer of proof indicated that Mr. Camber disliked Mr. Smith and had made
 statements he later denied that showed he was familiar with the crime at
 least three days after it was committed.  There was no evidence to incrim-
 inate Mr. Camber directly.  The proffered evidence was likely only to
 confuse or mislead the jury, and the court thus properly rejected the
 offer.  V.R.E. 403.
                                    III.
      Last, defendant claims he was deprived of his right to a unanimous jury
 verdict under Chapter I, Article 10 of the Vermont Constitution.  Defendant
 argues that because three individuals participated in the crime, part of the
 jury might have convicted him for the acts of one or both of the other per-
 petrators. This claim of error was not preserved for appeal, and we look
 only for plain error.  Regardless, the argument is without merit.
      Defendant correctly cites the general rule that where there is evidence
 of more than one act that would constitute the offense charged, the State
 must specify the act for which it seeks a conviction.  State v. Bailey, 144
 Vt. 86, 98, 475 A.2d 1045, 1052 (1984).  The required election protects the
 defendant from the possibility that part of the jury will base its decision
 to convict on evidence of conduct different from that considered by the
 rest of the jury.  Such a decision would deprive the defendant of his right
 to a unanimous verdict based on a single offense.  Id.  In the present case,
 defendant's argument fails for two reasons.
      First, the Gilman brothers' burglary and assault on Mr. Smith
 constituted a single, uninterrupted criminal transaction, and thus falls
 within the exception to the general rule.  See id. at 99, 475 A.2d  at 1053
 (no plain error in failure to elect where many acts leading to two charges
 of sexual assault occurred within one and one-half hours); cf. State v.
 Bonilla, 144 Vt. 411, 416, 477 A.2d 983, 986 (1984) (conviction reversed
 where defendant was charged with one count of arson and one count of
 insurance fraud in connection with three fires over a three-day period).
      Second, the jury was entitled to convict defendant as jointly culpable
 for the acts of his brothers.  It is settled that
           [w]here several persons combine under a common under-
           standing and with a common purpose to do an illegal
           act, every one is criminally responsible for the acts of
           each and all who participate with him in the execution
           of the unlawful design.
 State v. Orlandi, 106 Vt. 165, 171, 170 A. 908, 910 (1934) (quoted in State
 v. Barr, 126 Vt. 112, 122, 223 A.2d 462, 469 (1966) (four masked men entered
 home intending to take owner's money; defendant's conviction sustained)).
 The jury was instructed on the law of joint criminal liability, and the
 evidence was ample to support their verdict.
      Affirmed.



                                    FOR THE COURT:



                                    _________________________________
                                    Associate Justice




FN1.        Each of defendant's arguments involves Article 10.  It reads in
 pertinent part:
     [I]n all prosecutions for criminal offenses, a person hath a right
     . . . to call for evidence in his favor, and a speedy public trial
     by an impartial jury of the country; without the unanimous consent
     of which jury, he cannot be found guilty; nor can he be compelled
     to give evidence against himself . . . .