State v. Turner

State v. Turner (2001-428); 175 Vt. 595; 830 A.2d 122

2003 VT 73

[Filed 17-Jul-2003]

                                 ENTRY ORDER

                                 2003 VT 73

                      SUPREME COURT DOCKET NO. 2001-428

                             NOVEMBER TERM, 2002

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 1, Windham Circuit
  Clayton Turner	               }
                                       }	DOCKET NO. 1347-8-00 Wmcr

                                                Trial Judge: David Suntag

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

       ¶  1.  Defendant Clayton Turner was convicted of aggravated assault
  following a jury trial in Windham District Court. Defendant appeals the
  court's denial of his motion for judgment of acquittal and motion for a new
  trial.  Defendant claims that the trial court erred in denying his motions
  because  (1) the State presented insufficient evidence that the knife used
  in the incident was a "deadly weapon"; (2) the trial court committed
  prejudicial error by allowing a witness to testify  that he was threatened
  by defendant's brother following a juror's request for clarification of the
  witness's testimony; and (3) the trial court failed to give the jury a
  proper limiting instruction regarding that witness's testimony.  We
  disagree and affirm. 

       ¶  2.  This appeal arises out of a dispute over a video game.  The
  record demonstrates that on July 2, 2000, defendant stabbed 14 year-old
  Kyle Wright in the leg with a knife after an unsuccessful attempt to borrow
  a video game.  Defendant was charged with aggravated assault with a deadly
  weapon under 13 V.S.A §1024(a)(2).  Following a two-day jury trial,
  defendant was convicted and subsequently sentenced to three to twelve years
  imprisonment.

       ¶  3.  During the course of the trial, several witnesses testified
  as to the facts of the incident, including Jason Bushey, who was present
  during the stabbing.  Prior to trial, Bushey stated to defendant's
  investigator that he did not witness the stabbing and signed a written
  statement to that effect.  Bushey also told the police that he did not know
  defendant or the victim.  At trial, Bushey testified that he saw defendant
  "get mad" and purposely stab Kyle Wright in the leg with a three inch long
  knife.  On direct examination, the State asked Bushey to explain his prior
  statements.  Bushey admitted he had lied previously because he did not
  "want any bodily harm to be caused to [him] for snitching on somebody," and
  that he had decided to testify truthfully because "it's not right that
  Clayton stabbed a 14-year-old kid over a video game."  Defense counsel did
  not object to this testimony.

       ¶  4.  Following Bushey's testimony, the court asked whether the
  jurors had questions for the witness. (FN1)  A juror requested
  clarification of Bushey's testimony regarding his fear of harm for
  "snitching."  Defense counsel objected to the juror's question, arguing
  that the potential testimony would be more prejudicial than probative.  The
  court overruled this objection, adjourned the jury upon the State's
  suggestion, and asked Bushey to clarify his previous testimony.  Bushey
  explained to the court that he was afraid of Kenneth Turner, defendant's
  brother.  Defense counsel renewed their objection to this testimony.  Upon
  further inquiry, Bushey claimed that Kenneth Turner threatened to  "put
  [Bushey] in the hospital" if Bushey "snitched" on his brother.  Bushey also
  stated that Kenneth Turner did not in any way indicate that defendant had
  prompted the threat.  Again, defense counsel objected to this testimony,
  which the court overruled, holding that the testimony was clearly
  probative.  Bushey then testified about Kenneth Turner's threats before the
  jury, explaining that these threats prompted his prior inconsistent
  statements. 

       ¶  5.  At the close of the State's case, defendant moved for
  judgment of acquittal pursuant to V.R.Cr.P. 29(c), arguing that the State
  did not meet its burden in proving that defendant caused injury to Wright,
  and that the evidence was not sufficient to prove that defendant used a
  "deadly weapon."  The court denied these motions and charged the jury.  No
  objections were made to the jury instructions.  Defendant was convicted of
  aggravated assault.  Defendant moved for judgment of acquittal or a new
  trial notwithstanding the jury verdict in a post-verdict filing.  The court
  denied these motions.  This appeal followed.

       ¶  6.  On appeal, defendant raises three claims.  First, defendant
  claims that the State presented insufficient evidence that the knife used
  in the stabbing was a "deadly weapon" as defined by 13 V.S.A. § 1021(3),
  and that he is therefore entitled to a judgment of acquittal.  Second,
  defendant argues that the trial court committed prejudicial error by
  allowing Bushey to explain that threats made by defendant's brother caused
  him to deny knowledge of the stabbing prior to trial.  Third, defendant
  claims the court's admission of Bushey's testimony and subsequent failure
  to give the jury a limiting instruction regarding the usage of that
  testimony warrants a new trial.  Defendant is incorrect.
   
       ¶  7.  Defendant first claims that he is entitled to a judgment of
  acquittal because the State failed to meet its burden in proving that the
  knife used in the stabbing was a "deadly weapon."  The standard of review
  for the denial of a V.R.Cr.P. 29 motion for judgment of acquittal is
  whether "the evidence, when viewed in the light most favorable to the State
  and excluding any modifying evidence, fairly and reasonably tends to
  convince a reasonable trier of fact that the defendant is guilty beyond a
  reasonable doubt." State v. Delisle, 162 Vt. 293, 307, 648 A.2d 632, 641
  (1994) (internal quotations omitted).  A judgment of acquittal is proper
  only if the State 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).

       ¶  8.  We reject defendant's assertion that the evidence was
  insufficient to find that the knife used by defendant was a "deadly
  weapon."  Defendant was charged with aggravated assault under 13 V.S.A. §
  1024(a)(2).  A person is guilty of aggravated assault with a deadly weapon
  if the defendant "attempts to cause or purposely or knowingly causes bodily
  injury to another with a deadly weapon."  13 V.S.A. § 1024(a)(2).  A
  "deadly weapon" is defined as "any firearm, or other weapon, device,
  instrument, material or substance, whether animate or inanimate which in
  the manner it is used or is intended to be used is known to be capable of
  producing death or serious bodily injury."  Id.  § 1021(3).  

       ¶  9.  Defendant asserts that the knife with which he stabbed Wright
  was not used or intended to be used in a manner "known to be capable of
  producing death or serious bodily injury," and that the injury inflicted
  upon the victim was not "serious bodily injury." Therefore, according to
  defendant, the knife should not be considered deadly.  We disagree.  For a
  weapon to be considered "deadly" under 13 V.S.A. § 1024(a)(2), that weapon
  need not inflict serious bodily injury.  See State v. Prior, __ Vt. __, __,
  804 A.2d. 770, 773 (2002) (a folding knife held to victim's throat, without
  inflicting any injury, constituted a "deadly weapon"); State v. Parker, 139
  Vt. 179, 183, 423 A.2d 851, 853 (1980) (a gun, whether loaded or unloaded,
  is a dangerous weapon when used in the commission of a robbery because it
  could be used as a bludgeon to effect personal injury).  It is the manner
  in which the knife was used or intended to be used and its potential for
  inflicting serious bodily injury that is determinative.  See State v.
  Lupien, 143 Vt. 378, 382, 466 A.2d 1172, 1174  ("[T]here can be no doubt
  that a weapon such as numchuks, capable of shattering a clavicle in one
  quick strike, constitutes a deadly weapon for purposes of 13 V.S.A §
  1024(a)(2)."); cf. State v. Deso, 110 Vt. 1, 8, 1 A.2d 710, 714 (1938)
  ("[A] dangerous weapon is a weapon which in the way it is used or attempted
  to be used may endanger life or inflict great bodily harm.") (emphasis
  added).  Defendant threatened to use the knife on the victim if the video
  game he sought was not found, stabbed the victim with the knife when the
  game was not found, and caused a wound requiring stitches.  There is no
  doubt, given the evidence, that a jury could reasonably conclude that the
  stabbing manner in which the knife was used to inflict injury upon the
  victim was known by defendant to be capable of producing serious bodily
  injury.  See State v. Persuitti, 133 Vt. 354, 361, 339 A.2d 750, 755 (1975)
  (upholding conviction for aggravated assault on grounds that a metal pipe
  is a deadly weapon; noting that "[i]f the jurors credited the attack at
  all, it is difficult to conceive how they could have found the weapon used
  to be anything other than deadly").  
        
       ¶  10.  Defendant also claims that the State failed to meet its
  burden because the knife itself was not entered into evidence.  However, if
  the State fails to introduce the weapon used in the assault, it can meet
  its burden by introducing testimony about that weapon and the details of
  the injuries caused, as long as the evidence is sufficient for a reasonable
  trier of fact to conclude that a deadly weapon was used.  See Prior, __ Vt.
  at __, 804 A.2d  at 773 (victim's description of folding knife during her
  testimony was considered sufficient for a reasonable trier of fact to
  conclude that a deadly weapon was used); see also 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.") (citations omitted). 
  Here, Bushey testified that defendant stabbed Wright with a knife
  approximately three inches long.  The victim's mother testified that she
  saw "a stab, a knife wound" longer than one inch on the back of her son's
  leg.  The victim's wound required stitches.  Given this testimonial
  evidence, a jury could reasonably conclude the knife was a deadly weapon. 
  Accordingly, defendant's argument that the State failed to meet its burden
  in proving that he used a deadly weapon as defined by 13 V.S.A. § 1021(3)
  fails.

       ¶  11.  Defendant's second claim is that he is entitled to a new
  trial because the trial court committed prejudicial error by allowing
  Bushey to testify about the threats made by Kenneth Turner.  The court may,
  on motion of the defendant, grant a new trial if required in the interests
  of justice.  V.R.Cr.P 33.  A motion for a new trial under Rule 33 "tests
  the sufficiency of all the evidence presented at trial and raises the
  question whether the jury has correctly performed its function of
  evaluating admittedly adequate evidence."  Couture, 169 Vt. at 227, 734 A.2d  at 527-28 (internal quotations omitted).  A Rule 33 motion made on
  evidentiary grounds should be granted "only upon a conclusion by the trial
  court that, weighing all the evidence including the credibility of
  witnesses, the verdict is clearly against the weight of the evidence." 
  Reporter's Notes, V.R.Cr.P. 33.  The grant of a new trial is a remedy used
  sparingly and only in exceptional circumstances.  State v. Trombly, 148 Vt.
  293, 297, 532 A.2d 963, 966 (1987).  

       ¶  12.  Defendant claims that Bushey's testimony asserting he was
  threatened by Kenneth Turner is inadmissible absent evidence connecting
  Turner's threats to defendant.  Defendant is incorrect.  It is axiomatic
  that evidence, although relevant, may be excluded if its probative value is
  substantially outweighed by the danger of unfair prejudice.  V.R.E. 403. 
  The general rule is that testimony describing threats against witnesses is
  inadmissible unless the defendant is linked in some way to those threats. 
  See State v. Walker, 571 A.2d 686, 689 (Conn. 1990) (collecting cases so
  holding).  "The reason for the rule is that evidence of threats against
  witnesses is generally admissible either on the theory that such conduct is
  inconsistent with the defendant's claim of innocence or on the theory that
  the making of such threats evinces a consciousness of guilt."  Id.  Without
  a link to the defendant, evidence of such threats directed toward a witness
  has no probative value for those purposes.  Id. at 690.  
        
       ¶  13.  An exception to the general rule is recognized in cases where
  evidence of threats explains a witness's prior inconsistent statement. 
  This Court has established that testimony about a threatened witness can be
  relevant, probative, and not unfairly prejudicial without proof that the
  threat is tied to the defendant, if that testimony explains the change in
  the witness's story.  In re Miller, 168 Vt. 583, 585, 718 A.2d 419, 421
  (1998) (mem.); see also Walker, 571 A.2d  at 689 (in explaining inconsistent
  testimony, witness was allowed to testify that she received threats and was
  initially "too frightened to tell the truth," even though threats could not
  be tied to defendant);  Washington v. State, 445 A.2d 684, 686 (Md. 1982)
  ("[I]t is generally held that evidence of threats to a witness or fear on
  the part of a witness, in order to explain an inconsistency, is admissible
  in criminal cases for credibility rehabilitation purposes even if the
  threats . . . have not been linked to the defendant.");  People v. Rivera,
  553 N.Y.S.2d 707, 710 (N.Y. App. Div. 1990) ("It is appropriate to elicit
  testimony concerning non-attributable threats made to a witness, where the
  purpose is to explain inconsistent statements . . . .").  On
  cross-examination, defense counsel challenged the credibility of  Bushey's
  testimony based on his previous statements denying knowledge of the
  stabbing.  Bushey's testimony that Kenneth Turner threatened to "put [him]
  in the hospital" if he were to "snitch" on defendant directly explains the
  change in Bushey's story and was highly probative for that purpose.  The
  trial court has broad discretion under V.R.E. 403 in determining whether
  the probative value of testimony outweighs its prejudicial effect, and the
  burden on defendant to show abuse of that discretion is a heavy one.  Sweet
  v. Roy, 173 Vt. 418, 441, 801 A.2d 694, 711 (2002); State v. Webster, 165
  Vt. 54, 56, 675 A.2d 1330, 1332 (1996).  In admitting the testimony of
  threats directed toward Bushey, the trial court did not abuse its broad
  discretion.  Therefore, defendant's second claim on appeal fails.

       ¶  14.  Finally, defendant claims that even if Bushey's testimony is
  admissible, the court should have given the jury an instruction limiting
  the purpose of that testimony.  Absent this limiting instruction, defendant
  argues, a new trial is warranted.  We find defendant's argument
  unpersuasive.  In Vermont, a limiting instruction is generally not required
  absent a defendant's request. V.R.E. 105.  "When evidence which is
  admissible as to one party or for one purpose but not admissible as to
  another party or for another purpose is admitted, the court, upon request,
  shall restrict the evidence to its proper scope and instruct the jury
  accordingly." Id. (emphasis added). When defense counsel fails to request a
  limiting instruction or fails to object to the absence of a limiting
  instruction, a defendant's right to raise this issue on appeal is waived. 
  State v. Ashley, 160 Vt. 125, 127, 623 A.2d 984, 985 (1993).  In this case,
  defense counsel did not request a jury instruction limiting the usage of
  Bushey's testimony regarding the threats made by Kenneth Turner, nor did it
  object to the jury charge on this point.  
        
       ¶  15.  An exception to this rule arises if there is a  finding of
  plain error affecting defendant's substantial rights.  See  V.R.Cr.P. 52(b)
  ("Plain errors or defects affecting substantial rights may be noticed
  although they were not brought to the attention of the court."); see also
  State v. Holcomb, 156 Vt. 251, 256, 590 A.2d 894, 897 (1991) ("[F]ailure to
  give a limiting instruction . . . in the absence of a request or objection,
  will be grounds for reversal only on a finding of plain error."). 
  Recently, this Court found plain error in a case involving prior bad act
  evidence.  State v. Lipka, __ Vt. __, __, 817 A.2d 27, 37 (2002) (holding
  trial court abused its discretion in admitting prior bad act evidence
  because we could not conclude beyond a reasonable doubt that the jury would
  still have convicted defendant without the testimony).  Prior bad act
  evidence is generally inadmissible because "once jurors learn of uncharged
  misconduct, they tend to use an entirely 'different . . . calculus of
  probabilities' in deciding whether to convict."  Id. at __, 817 A.2d  at 36
  (quoting State v. Forbes, 161 Vt. 327, 330, 640 A.2d 13, 15 (1993)). 
  However, even in cases involving evidence of prior bad acts,  "[i]t is very
  rare that we find plain error, and the burden to show it is extremely
  high."  Id. at __, 817 A.2d  at 37.  "We have consistently stated that we
  will find plain error to warrant reversal of a criminal conviction, absent
  preservation, only in rare and extraordinary cases where the error so
  affects the substantial rights of the defendant that we cannot find the
  trial overall to be fair."   State v. McCarthy, 156 Vt. 148, 154, 589 A.2d 869, 873 (1991);  V.R.Cr.P. 52. 

       ¶  16.  We find no plain error here.  Bushey's testimony was admitted
  for the purpose of explaining his prior inconsistent statements and not to
  show defendant's propensity to commit the assault.  Moreover, Bushey's
  testimony disassociated defendant from the threats made by Kenneth Turner,
  and no evidence was introduced linking the threats to defendant.  We are
  persuaded that the evidence supports a conclusion beyond a reasonable doubt
  that the jury would still have convicted defendant if it had never heard
  the testimony clarifying Bushey's fear of harm.  As such, absent
  defendant's request, the court was not required to give the jury a limiting
  instruction, and defendant's final claim on appeal fails. (FN2)

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned


------------------------------------------------------------------------------
                                  Footnotes


       Note:  Justice Morse sat at oral argument but did not participate in
  this decision.

FN1.  On appeal, defendant attempted to challenge the propriety of allowing
  jurors to question witnesses by submitting a letter to the Clerk of this
  Court ostensibly adopting the argument briefed by the appellant in State v.
  Doleszny, Docket No. 2001-310.  In an Order dated November 12, 2002, we
  found that defendant did not properly raise or brief the issue in
  accordance with the requirements of V.R.A.P 28(g), and therefore declined
  to hear the juror-questioning issue on appeal. 

FN2.  Defendant also claims that he was denied a fair trial because the
  State improperly used prejudicial speculation in its closing argument to
  the jury.  Defendant failed to object to the State's closing argument, and
  therefore has not preserved this issue on appeal.