State v. Scribner

State v. Scribner  (97-073); 170 Vt. 537; 746 A.2d 145

[Opinion Filed 3-Aug-1999]
[Motion for Reargument Denied 4-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-073

                              MARCH TERM, 1999


State of Vermont	             }	APPEALED FROM:
	                             }
	                             }
     v.	                             }	District Court of Vermont,
	                             }	Unit No. 2, Chittenden Circuit
Kevin Scribner	                     }
	                             }	DOCKET NO. 5627-10-95CnCr


       In the above-entitled cause, the Clerk will enter:

       Defendant appeals from a jury conviction for attempted murder in the
  second degree and  aggravated assault.  He raises three claims on appeal: 
  (1) he was wrongfully charged under the  general criminal attempt statute
  instead of the specific attempted murder statute; (2) he was  improperly
  convicted of two offenses arising from the same conduct in violation of his 
  constitutional right against double jeopardy; and (3) the trial court
  committed plain error by failing  to instruct the jury on attempted
  voluntary manslaughter as a lesser included offense.  We vacate  the
  conviction for aggravated assault but affirm in all other respects.

       During the late evening of October 20, 1995, some teenage girls
  playing in a yard noticed  defendant standing on the sidewalk staring at
  them.  The oldest girl became uncomfortable and  signaled to some teenage
  boys she knew who were in front of a nearby store.  The boys told 
  defendant to move on.  Defendant, who had been drinking that evening,
  turned to walk away but as  he did so lifted his jacket to expose a
  handgun.  He then stopped and began staring at the girls  again.  The
  cousin of one of the girls, John Casey, then came walking around the
  corner.  After the  girl complained to Casey about defendant staring at
  them, Casey approached defendant and asked  why he was bothering the girls. 
  In response, defendant pulled out the handgun and pointed it at  him. 
  Casey asked whether defendant was going to shoot him.  Defendant then fired
  a shot that  apparently went into the ground.  Defendant turned and walked
  away.  Casey followed him, first  walking and then running.  Just before
  Casey reached defendant, defendant turned and fired a  second shot, this
  time into Casey's groin.  Casey knocked defendant down, attempted to get
  the gun  and yelled for someone to call the police.  The store owner came
  out and stepped on defendant's  hand holding the gun.  He told a bystander
  to call the police.

       When a police officer arrived, defendant did not respond to the order
  to drop the gun even  after the officer placed his gun against defendant's
  head and repeated the order.  The officer  eventually disarmed defendant by
  twisting the gun out of defendant's hand.  The gun was cocked  with the
  hammer back.  The cylinder of the gun contained six shells, and defendant
  had thirty five 



  additional shells in his pocket. 
           	
       The jury acquitted defendant of attempted first degree murder but
  convicted him of the lesser  included offense of attempted second degree
  murder.  In addition, they convicted him of aggravated  assault.  The judge
  sentenced defendant on the two convictions concurrently:  twenty years to
  life  imprisonment for attempted second degree murder and five to fifteen
  years for aggravated assault.

       Defendant first argues that he should have been charged under the
  specific attempted murder  statute, 13 V.S.A. § 2307, which carried a
  lesser penalty for attempted murder than did 13 V.S.A.  § 9, the general
  criminal attempt statute, after it was amended in 1993.  He claims the
  attempted  murder statute -- which was later explicitly repealed, see 1995,
  No. 170 (Adj. Sess.), § 32 -- was  still in effect at the time and was not
  impliedly repealed by the 1993 amendment to 13 V.S.A. § 9.  He further
  contends that § 9 defers in this instance to § 2307 because § 9 punishes an
  attempted  offense as a completed one unless another "express provision" of
  law exists that punishes the  attempt.  He claims that § 2307 operated as
  just such an express provision even after the 1993  amendment to § 9.

       Out of judicial respect for legislative authority over lawmaking, we
  recognize a presumption  against implied repeal.  See State v. Foley, 140
  Vt. 643, 646, 443 A.2d 452, 453 (1982).   Nonetheless, the presumption may
  be overcome in one of two ways:  first, where an enactment is  so far
  repugnant to an existing law that they cannot both be effective or, second,
  where the more  recent act covers the whole subject of the former, thereby
  plainly demonstrating that it was intended  as a substitute.  See id.  The
  inconsistency of the two statutes at issue here cannot be reconciled,  and
  they are therefore repugnant to each other.   

       The first sentence of § 9(a) includes the language on which defendant
  relies:  defendant will  be punished under this section, "unless other
  express provision is made by law for the punishment  of the attempt."  This
  sentence was not changed significantly by the 1993 amendment.  See 1993, 
  No.95, § 5 (changing "such attempt" to "the attempt").  Rather, the
  substantive change occurred in  the second sentence of § 9(a) and in the
  addition of subsection (b).  

  If the offense attempted to be committed is *[a felony, a person shall
  be  punished by the least severe of the two following punishments:]*
  murder,  aggravated murder, kidnapping, arson causing death, aggravated
  sexual assault  or sexual assault, a person shall be punished as the
  offense attempted to be  committed is by law punishable.

       (b) If the offense attempted to be committed is a felony other than
  those set forth  in subsection (a) of this section, a person shall be
  punished by the less severe of  the following punishments:  

       (1) imprisonment for not more than ten years and fined not more than 
  $10,000.00, or both; or

       (2) as the offense attempted to be committed is by law punishable. 



  Id. (brackets indicate deletion; underlining indicates addition).  Whereas
  the prior version punished  all felonies alike by imposing the least severe
  of two alternative punishements absent an express  provision elsewhere in
  the law such as § 2307, the 1993 amendment enumerates certain felonies 
  such as murder for which punishment of the attempted offense is the same as
  for the completed  offense. 

       Under the prior statutory scheme, the § 9 deferral provision would
  have required sentencing  according to the specific attempted murder
  statute, § 2307, which set a twenty year maximum on  the term of
  imprisonment.  After the amendment, § 9 specifically tied attempted murder
  to the  punishment for murder.  The sentence for murder is greater than the
  alternative punishment under §  9(b)(2) of the 1993 amendment.  Compare 13
  V.S.A. § 2303 (generally, first degree murder  requires imprisonment for
  thirty-five years to life, and second degree murder requires imprisonment 
  for twenty years to life; if mitigating circumstances exist, the sentences
  may be reduced to no lower  than fifteen or ten years respectively).  By
  taking away the "least severe" punishment option for  attempted murder, the
  Legislature evinced an intent to increase the punishment for that offense.  
  Section 2307 and the amended version of § 9 both specifically set forth the
  punishment for  attempted murder.  These two provisions thus existed in
  direct contradiction until the Legislature  explicitly repealed § 2307 in
  1996.  See 1995, No. 170 (Adj. Sess.), § 32.  The question is  whether,
  prior to that repeal, the contradictory nature of the two statutes effected
  an implicit repeal  of § 2307.

       Defendant's reading of the contradiction as still deferring to the
  specific attempted murder  statute, instead of referring to the punishment
  statute for murder, would render the Legislature's  inclusion of murder
  among the enumerated felonies ineffective.  That is, it would
  simultaneously  include and exclude murder from the operation of § 9.  We
  therefore conclude that § 2307, the  specific attempted murder statute, was
  impliedly repealed by the 1993 amendment to § 9, the  general attempt
  statute, because the two cannot rationally be in effect at the same time. 
  Further,  the 1993 amendment to § 9 covers the entire subject matter of §
  2307 - punishment for attempted  murder.  The former was thus intended to
  substitute for the latter.  Finally, although defendant  appeals to the
  rule of lenity, it does not come into play because the legislative intent
  to increase the  penalty for murder is unambiguous.  See State v. Fuller,
  ___ Vt. ___, ___, 721 A.2d 475, 480  (1998).

       Second, defendant maintains that sentencing on two convictions arising
  from the same  conduct constituted double jeopardy.  The state concedes
  this issue. Vacating the shorter sentence  fully vindicates defendant's
  rights.  See Jones v. Thomas, 491 U.S. 376, 382 (1989); see also  Rutledge
  v. United States, 517 U.S. 292, 305-06 (1996) (disapproving of practice of
  entering  concurrent convictions on lesser and greater offenses); State v.
  Grega, ___ Vt. ___, ___, 721 A.2d 445, 462-63 (1998) (vacating aggravated
  assault conviction pursuant to Rutledge).

       Third, defendant asserts that the trial court committed plain error by
  failing to instruct the  jury on attempted voluntary manslaughter as a
  lesser included offense.  He failed to take issue with  the jury charge on
  this point at trial.  Where defendant does not preserve the claimed error
  by  bringing it to the trial court's attention, we assign error only in
  extraordinary situations where



  it is plain or obvious and strikes at the heart of defendant's
  constitutional rights or results in a  miscarriage of justice.  See State
  v. Forant, ___ Vt. ___, ___, 719 A.2d 399, 401 (1998).  Here,  defendant's
  claim does not approach the level of plain error.  The evidence presented
  did not fairly  lend itself to an attempted voluntary manslaughter
  instruction.  We note that the law of voluntary  manslaughter requires
  adequate provocation, considered objectively, for  the loss of
  self-control.   See  State v. Shaw, ___ Vt. ___, ___, 721 A.2d 486, 490
  (1998).  Casey's conduct cannot be  characterized as adequate provocation
  for defendant to shoot at him.  Casey merely asked why  defendant was
  bothering his cousin and her friends and then gave chase after defendant
  had already  shot at him once.  Thus, an instruction on the offense was
  unnecessary.  See State v. Turgeon, 165  Vt. 28, 33, 676 A.2d 339, 342
  (1996).

       Aggravated assault conviction is vacated.  Affirmed in all other
  respects.  
  
    


	BY THE COURT:



	_______________________________________
	Jeffrey L. Amestoy, Chief Justice

	_______________________________________
	John A. Dooley, Associate Justice

	_______________________________________
	James L. Morse, Associate Justice

	_______________________________________
	Denise R. Johnson, Associate Justice

	_______________________________________
	Marilyn S. Skoglund, Associate Justice