State v. Gibney
Annotate this Case
State v. Gibney (1999-081); 175 Vt. 180; 825 A.2d 32
2003 VT 26
[Filed 28-Mar-2003]
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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2003 VT 26
No. 1999-081
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Franklin Circuit
Shawn K. Gibney November Term, 2001
Ronald F. Kilburn, J.
Diane C. Wheeler, Deputy State's Attorney, St. Albans, for
Plaintiff-Appellee.
Robert Appel, Defender General, Anna Saxman, Deputy Defender General, and
Henry Hinton, Appellate Attorney, Montpelier, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund, JJ.
¶ 1. DOOLEY, J. Defendant appeals from his conviction by jury on
one count of first-degree murder, for which he received a sentence of fifty
years to life. Defendant makes four claims on appeal: (1) the jury's
guilty verdict was not supported by the evidence; (2) he was improperly
prohibited from offering exculpatory evidence that other persons had the
motive to kill the victim; (3) the court erred in failing to dismiss the
case, or to impose an alternate sanction, because of the prosecution's
destruction of possibly exculpatory notes taken by various police officers
during their investigation; and (4) the court erred in concluding that
defendant's sentence should be aggravated because the crime had multiple
victims. We affirm the conviction, but reverse the sentencing decision and
remand for resentencing.
¶ 2. Defendant's first claim on appeal is that the guilty verdict
is not supported by the evidence and thus the trial court erred in denying
his motion for a judgment of acquittal. Because defendant was charged with
first-degree murder, the State was required to prove beyond a reasonable
doubt that defendant killed the victim, Sam Gendron, that he intended to do
so, and that he did so deliberately and with premeditation. State v.
Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999); 13 V.S.A. § 2301. The
evidence, taken in the light most favorable to the State and excluding any
modifying evidence, must sufficiently and fairly support a finding of guilt
beyond a reasonable doubt. See State v. Durenleau, 163 Vt. 8, 10, 652 A.2d 981, 982 (1994). The evidence "must be examined both for its quality and
strength," and it cannot create a mere suspicion of guilt or leave guilt
uncertain or dependant on conjecture. Id.
¶ 3. This was an assassination. The victim was shot multiple
times by a semi-automatic assault rifle while driving in his pick-up truck.
One of the bullets blew away a portion of Gendron's scalp and skull; a
portion of the skull was found on the ground near the truck. Thus, there
is no dispute that whoever shot Gendron did so with intent to kill,
deliberately and with premeditation. The only issue in the trial was
whether the State proved beyond a reasonable doubt that defendant was the
shooter.
¶ 4. The State's case was strongest with respect to motive. In
May, 1992, defendant assaulted Gendron, his supervisor, when they both
worked for Blue Seal Feeds in Richford. Defendant was convicted of simple
assault for this incident and, on June 2, 1992, he was fired from his job
because of it. Defendant blamed Gendron for his discharge and threatened
and harassed him thereafter. On one occasion defendant called Gendron a
"dead man." Defendant told an investigating police officer that next time
he would take care of Gendron and "blow his head off." The murder occurred
on June 2, 1997, exactly five years after defendant was fired from his job.
¶ 5. No one saw the murder, but up to a point, the State made a
strong showing that defendant had the opportunity to commit the crime.
Every day around 11 A.M., Gendron left work and drove home for lunch,
proceeding in his pick-up truck up Hardwood Hill Road. On the day of the
murder, he punched out of work at 11:36 A.M. and proceeded home, some ten
minutes away by vehicle. He was shot from the side of the road as he
proceeded up the hill. Neighbors called for an ambulance at 11:51 A.M.
¶ 6. Numerous observers saw defendant standing along Hardwood Hill
Road next to his blue Cadillac automobile, placing the times of observation
at some point between 10:30 A.M. and 11:30 A.M. He smoked a number of
cigarettes at this location and drank from a plastic Coca-Cola bottle. His
location was approximately that from which the shots at Gendron were fired.
No one saw defendant or his vehicle leave that location. Although
defendant did not testify at trial, his evidence suggested that he was at
that location looking for a place to grow marijuana plants.
¶ 7. At this point, the opportunity evidence becomes less clear. A
witness was walking up Hardwood Hill Road when Gendron passed in his truck
going in the same direction. About thirty seconds thereafter, the witness
heard shots and the sound of a running motor on the truck, but observed no
one else driving on Hardwood Hill Road. The observer came up to the truck
off the road, saw Gendron's body, and proceeded to the next house up the
hill. At that house, three persons were working. They heard the shots,
and one went outside to look. He could see the road but neither saw nor
heard a vehicle pass on it after the shots.
¶ 8. The only access to the point of the shooting by car was by
Hardwood Hill Road. However, bike trails provided access to Hardwood Hill
Road near the point of the shooting for off-road vehicles.
¶ 9. The main evidence that defendant was gone from Hardwood Hill
Road at the time of the shooting came from Carolyn Rivers, who testified
that she was driving on South Richford Road to reach the Richford town
clerk's office by noon. She testified that she saw defendant proceeding
towards her and passing her; he was driving fast and in the middle of the
road. She estimated that the point of passage was a thirty-minute drive
from the point of the shooting on Hardwood Hill Road. She said she saw
defendant at about 11:45 A.M.
¶ 10. Although the State identified the assault rifle as an AK-47 or
similar type, it never found the murder weapon. It did establish that
defendant once owned an assault rifle of the type used in the murder.
During a search of defendant's house, it found an empty box of cartridges
for such a rifle.
¶ 11. Defendant was arrested some twelve hours after the crime.
¶ 12. Defendant's position is that the State did not prove that he
was at the shooting point at the time Gendron was shot, and thus the
State's evidence is insufficient to establish guilt beyond a reasonable
doubt. He points to the testimony of three witnesses - two who testified
to seeing no car proceed on Hardwood Hill Road immediately after the
shooting, and one who testified to observing defendant thirty minutes away
within minutes of the shooting - that he argues precludes any inferences of
guilt that can be drawn from the State's circumstantial evidence.
¶ 13. The undisputed State's evidence that defendant committed the
crime was very strong. Defendant's motive, his threat to "blow [Gendron's]
head off," the date of the shooting, the method of the killing, defendant's
observed presence at the place from which the shots were fired shortly
before the shooting, and his weak explanation for his presence would add up
to an overwhelming case against him. The fact that the evidence is
circumstantial is not determinative. See State v. Findlay, 171 Vt. 594,
599, 765 A.2d 483, 487 (2000) (mem.) ("While it is true that evidence
leaving a determination of guilt wholly dependent upon conjecture is
insufficient, circumstantial evidence may serve as proof of guilt beyond a
reasonable doubt."). Indeed, recognizing that a claim of coincidence would
be incredible, counsel on appeal argued that defendant must have been set
up by an unknown killer who was aware of defendant's movements and wanted
to frame him for the crime while killing Gendron.
¶ 14. The issue then is how we must consider the countervailing
evidence. Our standard for reviewing a denial of a motion for a judgment
of acquittal requires us to determine only whether the State's evidence,
taken in the light most favorable to the State and excluding any modifying
evidence, sufficiently and fairly supports a finding of guilt beyond a
reasonable doubt. Durenleau, 163 Vt. at 10, 652 A.2d at 982. By modifying
evidence, we mean exculpatory evidence introduced by defendant, such as
countervailing testimony. See United States v. Kelley, 152 F.3d 881, 886
(8th Cir. 1998) (in ruling on a motion for a judgment of acquittal, which
tests the sufficiency of the evidence, the court must determine whether
there is substantial evidence justifying an inference of guilt,
"irrespective of any countervailing testimony that may be introduced");
United States v. Wolfson, 322 F. Supp. 798, 806 (D. Del. 1971) (in ruling
on a motion for a judgment of acquittal, the court must determine whether
there is substantial evidence justifying an inference of guilt,
"irrespective of evidence adduced by the defendant"). Moreover,
credibility determinations are for the jury, not the court. See Burks v.
United States, 437 U.S. 1, 16-17 (1978).
¶ 15. The testimony of Carolyn Rivers introduced by defendant was
in the nature of an alibi. See State v. Ovitt, 126 Vt. 320, 327, 229 A.2d 237, 242 (1967) ("By an alibi, the accused attempts to prove that he was at
a place so distant from the scene of the offense that his participation in
the crime was impossible."). We have routinely treated alibi testimony as
modifying evidence that does not prevent a case from going to the jury.
See State v. Dezaine, 141 Vt. 335, 338, 449 A.2d 913, 914 (1982); State v.
Parker, 139 Vt. 179, 182, 423 A.2d 851, 852 (1980); State v. Ladabouche,
127 Vt. 171, 173, 243 A.2d 769, 771 (1968); State v. Howard, 108 Vt. 137,
145, 183 A. 497, 500-01 (1936). Although the jury could reconcile the
Rivers testimony with that of witnesses who saw defendant on Hardwood Hill
Road towards 11:30 A.M., it could also find a conflict in the testimony.
Whether or not there was a conflict, the jury could find that Rivers was
mistaken in her time estimates.
¶ 16. We conclude that we must similarly treat the testimony of
Daniel Parsons, the witness who came out of the house above the scene of
the shooting after hearing shots. In view of all of the evidence, the jury
could conclude that he did not exit the house quickly enough to see a
fleeing car driven by defendant. Again, we must view this testimony as
modifying evidence.
¶ 17. We acknowledge that determining the sufficiency of the
evidence is a matter of judgment. We also acknowledge that if the case for
conviction were substantially less strong, it could reach a point where it
could not prevail over the countervailing evidence under the reasonable
doubt standard. In this case, however, we conclude that the evidence as a
whole sufficiently and fairly supports a jury verdict of guilt beyond a
reasonable doubt. The court did not err in denying the motion for a
judgment of acquittal.
¶ 18. Defendant's second claim on appeal is that he was improperly
prohibited from offering exculpatory evidence that other persons had the
motive to kill Sam Gendron. When it became clear that defendant intended
to offer evidence of Gendron's sexual misconduct to show that others might
have killed him because of this misconduct, the State, at the urging of the
court, filed a motion to exclude this evidence. In response, defendant
summarized the evidence of Gendron's misconduct and argued that it was
admissible. Specifically, defendant wanted to show, through twenty or more
witnesses, that defendant was observed masturbating in his vehicle while
watching children walking on the street and that he had a reputation for
such conduct. The witnesses included a school official, a town constable,
and a state police officer who had investigated the allegations. The
defense also wanted to show that Gendron, while in high school many years
earlier, had stalked a young woman and forced her into his truck with a
knife.
¶ 19. In its motion in limine, the State argued that Gendron's
alleged inappropriate sexual conduct was never substantiated and, thus, was
only rumor and gossip. Therefore, the State argued, any probative value of
these unsubstantiated rumors of sexual misconduct would be substantially
outweighed by confusion of the issues and prejudice to the jury. See
V.R.E. 403. It also argued that the evidence could not be admitted unless
the defense identified an alternative perpetrator who had the motive and
opportunity to commit the crime.
¶ 20. The court granted the motion in limine, based largely on the
second argument. The court reasoned:
This court is not faced with a situation in which there is an
individual, or individuals, whose motive, opportunity, and
evidence of a direct connection can be examined. No person or
persons have been identified. The defense points to an apparently
mixed brew of gossip, innuendo, and unsubstantiated allegations as
providing motive, but nothing in the way of opportunity or direct
connection evidence.
. . .
This court will exclude all evidence of, or reference to,
these allegations. The defense has not shown the motive,
opportunity, nor any evidence to directly connect any third person
to the crime charged . . . . Furthermore, this court is unable to
find that these allegations are relevant as "having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable,"
V.R.E. 401, and that its admission would prove to "confuse the
issues," "mislead the jury," and be a "waste of time," V.R.E. 403.
The court returned to the issue after the jury verdict in response to
defendant's motion for a new trial and added that because defendant was
able to depose and cross-examine the investigating officers, "[d]efendant
was not denied a fair opportunity to present his theory of defense." The
trial court also added that defendant failed to demonstrate "specific or
cognizable leads that the State's investigators declined to explore."
¶ 21. Defendant argues that the grant of the motion in limine
violated his right to present exculpatory evidence and a defense under
Chapter I, Article 10 of the Vermont Constitution and the Sixth Amendment
to the United States Constitution.
¶ 22. Defendant has a constitutional right to present evidence in
his favor. See State v. Corliss, 168 Vt. 333, 337, 721 A.2d 438, 441
(1998). However, the evidence must be relevant and admissible under the
rules of evidence. Id. at 337, 721 A.2d at 441-42; State v. Gilman, 158
Vt. 210, 214, 608 A.2d 660, 663 (1992). Even if evidence is admissible, it
must pass the balancing test of Rule 403 - that is, its probative value
cannot be substantially outweighed by its prejudicial effect. See V.R.E.
403; Corliss, 168 Vt. at 337, 721 A.2d at 442.
¶ 23. Rule 403 decisions are highly discretionary. State v.
Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996). We will not reverse a
decision to exclude evidence under Rule 403 absent abuse of that
discretion. Id.
¶ 24. For three reasons, the evidence offered by defendant had
limited probative value. First, it was offered to show an alternative
perpetrator of the crime. We held in State v. Gilman that evidence of
another person's involvement in a crime can be admitted if the proponent of
the evidence shows motive, opportunity, and " 'some evidence to directly
connect [the] third person to the crime charged.' " 158 Vt. at 214, 608 A.2d at 663 (quoting State v. Denny, 357 N.W.2d 12, 17 (Wis. Ct. App.
1984)) (alteration in original); see also State v. Griswold, 172 Vt. 443,
446, 782 A.2d 1144, 1146 (2001). Because defendant cannot identify an
alternative perpetrator, he cannot link the alternative perpetrator to the
crime or show that this alleged perpetrator had both motive and opportunity
to commit Gendron's murder. See State v. Cole, 695 A.2d 1180, 1183 (Me.
1997) (court could exclude alternative perpetrator evidence under Rule 403
where there was "no evidence to identify a specific alternative
perpetrator" because probative value was slight and it could confuse the
issues and mislead the jury); State v. Holterman, 687 P.2d 1097, 1101 (Or.
Ct. App. 1984) (court properly excluded evidence that murder victim was
associated with undercover officer under Rule 403, in absence of any
identification of alternative perpetrator).
¶ 25. Second, with respect to the bulk of the proffered evidence,
defendant has shown that Gendron may have engaged in misconduct but has not
identified a victim of that misconduct. As far as the evidence goes,
Gendron became sexually aroused by viewing young children but never acted
to contact those children. In the absence of a victim of Gendron's
misconduct, it is unlikely that anyone would have responded to the
misconduct by killing Gendron.
¶ 26. We recognize that defendant's evidence showed one incident
with a victim, but that incident occurred when Gendron was in high school
some twenty years earlier, and there was no showing that it resulted in
physical harm. The court could discount this incident as too remote to
suggest that the victim of that misconduct shot Gendron.
¶ 27. Third, at least as to events that might have occurred near to
the time of Gendron's death, the evidence was speculative; it consisted of
the testimony of persons whose official status caused them to investigate
Gendron's conduct. Although these persons received complaints about that
conduct and investigated, they were unable to confirm that conduct.
¶ 28. Defendant answers this weakness in the probative value of the
evidence with the argument that Gendron's reputation for this misconduct
was sufficient even if that reputation was inaccurate. We emphasize again
that the reputation alleged by defendant involved no specific victim of
Gendron's alleged crimes.
¶ 29. Weighed against the limited probative value of defendant's
proffered evidence was the prospect of confusion of the issues by a
twenty-witness mini-trial of Gendron for sexual misconduct, with no real
connection to the offense being tried. The defense position raised a real
concern that the effect of the evidence would be to smear the victim and
divert attention away from the murder. We conclude that the court acted
within its discretion in excluding the evidence.
¶ 30. Defendant next argues that the court erred in failing to
dismiss the case, or to impose an alternate sanction, because of the
prosecution's destruction of potentially exculpatory evidence - that is,
the notes taken by the various police officers during their investigation.
This issue first arose formally in February 1998, almost nine months after
defendant was arrested, when defendant moved to dismiss the case because
investigating officers had destroyed their investigatory notes. The motion
alleged that by letters to the state's attorney, the chief investigation
officer, and various police officers, defense counsel had requested that
field notes be retained and be forwarded to him, but that the officers
refused to honor that request and deliberately destroyed the notes. The
motion further alleged that the notes contained valuable information often
omitted from the final reports. Defendant sought four overlapping
remedies: (1) dismissal of the case; (2) exclusion of the testimony of any
witness who was interviewed by police, but the notes of the interview have
been destroyed; (3) preclusion of prosecution rebuttal of any evidence
"potentially effected by the destroyed evidence;" and (4) a jury
instruction "concerning the finding of State misconduct."
¶ 31. Based on a three-day evidentiary hearing, the court denied the
motion, except with respect to the jury instruction. After detailing the
activities of each of the police officers, the court made the following
findings:
15. The officers discarded their notes as had been their practice
and procedure as there is no Vermont State Police policy or
procedure that dictates that the officers either keep or destroy
their notes.
16. The reports generated by the law enforcement officers
contained information relevant to the case, both positive and
negative. The reports did not exclude any information that tended
to negate the guilt of the defendant as to the offense charged or
that would tend to reduce the punishment therefore.
17. Some irrelevant or insignificant matters were not included in
the officers' notes nor were they included in the reports.
18. Based on the testimony and exhibits admitted into evidence
during the course of these hearings, defense counsel have received
numerous police reports and witness statements, and have deposed
several persons during the course of the discovery process. As a
result, defense counsel have been able to question witnesses as to
all matters in preparing their defense.
The court concluded that there was no reasonable possibility that the
destroyed notes contained exculpatory material. Specifically, the court
reasoned:
Each of the officers was questioned extensively by the
defense in three days of hearings before this court. The
defendant's attorneys have had access to all police reports, to
all witnesses and to all officers. Three of the officers have, in
fact, preserved and produced their notes. All of the officers
have been subject to deposition.
After an extensive review of the transcripts of the hearing
and the defense motion, this court finds that the defense has not
made any showing that there is a reasonable possibility that the
destroyed notes would be in any way exculpatory. The defense
extensively questioned the police regarding their methods of
investigation and questioning, and, while the defense may have
shed some light on police practices, they have not connected this
testimony to a showing that the handwritten notes of the officers
were in any way exculpatory to defendant.
The court also concluded that the destruction of the notes was not done in
bad faith.
¶ 32. Following the trial, defendant included the destroyed notes as
a ground in his motion for a new trial. The court, in its judgment and
sentence order, reiterated that there was no reasonable possibility that
the notes contained exculpatory material and added:
Second, assuming arguendo that the requisite showing had been
made, the court was then obliged to perform a "pragmatic
balancing" of three factors (i.e., government's culpability,
importance of the lost evidence, and other evidence of guilt
adduced at trial) to determine the proper sanctions. Since the
other evidence of guilt adduced at trial was great, the
government's culpability relatively low and value of the lost
notes to the defense unknown, the appropriate sanction, if any,
would have been an adverse inference instruction to the jury. The
jury was so instructed.
(Internal citations omitted).
¶ 33. On appeal, defendant argues anew that the court erred in
failing to dismiss the case, or to impose a sanction beyond the jury
instruction, but shifts the focus somewhat to evidence that came out in
depositions or in the hearing on the motion to dismiss. We first address
the motion made below and its disposition, and then address the additional
considerations raised on appeal.
¶ 34. Both as a matter of due process of law, see Brady v. Maryland,
373 U.S. 83, 86-88 (1963), and under the discovery rules we have adopted,
see V.R.Cr.P. 16(b)(12), the prosecution has an obligation to disclose to
the defense any exculpatory material within its possession or control.
This obligation includes evidence that can be used to impeach a prosecution
witness. United States v. Bagley, 473 U.S. 667, 676 (1985). It includes
offers of benefits in return for testimony. See Giglio v. United States,
405 U.S. 150, 154-55 (1972).
¶ 35. The destruction of possibly exculpatory evidence by the State
can violate its burden of production. Where the exculpatory value of the
evidence is unknown prior to its destruction, the issue is controlled under
the Fourteenth Amendment by the Supreme Court decision in Arizona v.
Youngblood, 488 U.S. 51, 58 (1988). See State v. Benoit, 158 Vt. 359, 362,
609 A.2d 230, 231 (1992). Youngblood holds that "unless a criminal
defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of
law." 488 U.S. at 58.
¶ 36. Here, the district court found that the officers did not act
in bad faith; instead they followed their long-standing practice and
procedure. See State v. Delisle, 162 Vt. 293, 309, 648 A.2d 632, 642
(1994) (for purposes of Youngblood, bad faith means improperly motivated);
see also California v. Trombetta, 467 U.S. 479, 488 (1984) (no bad faith
where officer destroys breath sample in accord with normal procedure and
has no animus to defendant or intent to suppress evidence). That
conclusion is supported by the findings which are, in turn, supported by
the evidence. Thus, this case is controlled by State v. Benoit, another
"destruction of notes" case, in which this Court held that in the absence
of a finding of bad faith, there could be no violation of the United States
Constitution. 158 Vt. at 362, 609 A.2d at 231.
¶ 37. We have, however, adopted a different standard under Chapter
I, Article 10 of the Vermont Constitution, which guarantees that a
defendant can "call for evidence in [his] favor." In State v. Delisle, we
rejected Youngblood as setting the standard under Article 10:
We believe, however, that Youngblood is both too broad and too
narrow. It is too broad because it would require the imposition
of sanctions even though a defendant has demonstrated no prejudice
from the lost evidence. It is too narrow because it limits due
process violations to only those cases in which a defendant can
demonstrate bad faith, even though the negligent loss of evidence
may critically prejudice a defendant. Because the Bailey test
balances the culpability of the government's actions and the
prejudice to a defendant, we adopt it as the state constitutional
standard.
162 Vt. at 310, 648 A.2d at 643. The Bailey test, readopted in Delisle, is
the standard we used prior to Youngblood. See State v. Bailey, 144 Vt. 86,
94-96, 475 A.2d 1045, 1050-51 (1984).
¶ 38. Bailey first requires that the defendant show a "reasonable
possibility" that the lost evidence would have been favorable. Id. at 94,
475 A.2d at 1050. If the defendant makes the requisite showing, the court
must perform "a pragmatic balancing" of three factors:
(1) the degree of negligence or bad faith on the part of the
government; (2) the importance of the evidence lost; and (3) other
evidence of guilt adduced at trial.
Id. at 95, 475 A.2d at 1050.
¶ 39. We have performed the Bailey analysis in a number of cases.
In Bailey itself, a case involving a sexual assault in the defendant's
bedroom, we found that the defendant made the preliminary showing of a
"reasonable possibility" that analysis of the defendant's sheets and
bedding, as promised by the State when it seized this evidence, could have
shown an absence of sperm or other secretions. See id. We concluded that
the State was negligent in failing to perform the analysis while it was
possible to do so, although the State promised the defendant that it was
doing the analysis and thus effectively prevented the defendant from doing
so independently. Id. at 96, 475 A.2d at 1051. We also concluded,
however, that the evidence was not important because the passage of the two
days meant that the bedding could have been changed and because the
evidence against the defendant was otherwise strong. Id. Accordingly, we
found no violation of Article 10. Id. at 97, 475 A.2d at 1052; see also
State v. Smith, 145 Vt. 121, 127-28, 485 A.2d 124, 128 (1984) (under
balancing of factors in a rape case, no violation of the defendant's
constitutional rights because the evidence was lost by a private physician,
the lost evidence was not crucial to the defendant's case, the evidence did
not go to the crucial issue of whether the victim consented to intercourse,
and the evidence could not be conclusively linked to the incident in
question).
¶ 40. Particularly instructive are State v. Delisle, 162 Vt. at 311,
648 A.2d at 643, and State v. Devine, 168 Vt. 566, 568, 719 A.2d 861, 864
(1998) (mem.). In each of these cases, we found that the pragmatic
balancing process favored the State because the defendant had not shown
that the State had acted in bad faith, and the defendant had alternative
methods of making his case. In Delisle, the State kept only a small part
of a tarp in which the victim's body was found, and the defendant wanted to
use the whole tarp to show that a witness who testified that the defendant
had a similar tarp on the day of the victim's death had inaccurately
described it. We noted that defense counsel was able to accomplish the
same purpose through cross-examination of the witness without the tarp.
Delisle, 162 Vt. at 311, 648 A.2d at 643; see also id. at 311-12, 648 A.2d
at 643-44 (loss of victim's hyoid bone that the defendant wanted to use to
demonstrate that the victim was not strangled as the State claimed was not
significant where defense counsel made the point through cross-examination
of the medical examiner).
¶ 41. In Devine, the defendant was charged with careless and
negligent operation of a vehicle with death resulting and wanted to contest
the State's estimate of his speed at impact. He argued that he was unable
to do so effectively because the State had destroyed his vehicle before he
was charged. We concluded that the State's crash analysis data was
sufficient to enable him to present his own expert testimony. Devine, 168
Vt. at 568, 719 A.2d at 864.
¶ 42. In this case, the trial court found both that there was no
reasonable possibility that the notes contained new evidence favorable to
defendant and that pragmatic balancing of the Bailey factors showed that
there was no violation of Article 10. Without reaching the first
conclusion of the court's analysis, we affirm based on the balancing of the
Bailey factors.
¶ 43. As in Delisle and Devine, the State did not act in bad faith.
The trial court explicitly concluded that the officers acted in good faith
and we have affirmed that conclusion above.
¶ 44. As our analysis of the evidence suggests above, we find this a
relatively close case on the evidence presented. Thus, we cannot say that
the Bailey balancing weighs in favor of the State based on the overall
evidence against defendant.
¶ 45. We conclude, however, that the investigatory notes were not
important to defendant's case and that their loss did not substantially
prejudice defendant. In part, we reach this conclusion because the trial
judge, who listened to the evidence of the officers and judged their
credibility, found that the notes contained no additional exculpatory
information. We understand defendant's point that the court could make
that finding based only upon the self-serving testimony of the officers
involved, but we entrust credibility determinations to the judge who hears
the evidence.
¶ 46. In any event, the court's finding is not the primary reason
for our conclusion. As in Delisle and Devine, defendant here had
alternative means to develop the evidence he desired. Through the liberal
discovery available in criminal cases in this State, as well as his own
investigation and the evidentiary hearing on defendant's motion, defense
counsel could identify and question all witnesses interviewed by the
officers and explore in detail their investigatory methods. Using these
methods, defendant was able to identify examples of what was missing from
the official reports that he argued might be disclosed by the notes. Of
course, because defendant already knew that the information was known to
the officers, its presence in the notes, or its absence, was relatively
unimportant. Indeed, the destruction of the notes aided defendant in his
claim to the jury that the officers had conducted a one-sided, incomplete,
and incompetent investigation aimed only at convicting him rather than at
solving the crime. The court did give some relief that also aided
defendant's claim when it instructed the jury that if it found the officers
had "either negligently or in bad faith discarded notes . . . you must
infer that the information contained in those destroyed notes was
unfavorable to the State's case."
¶ 47. We emphasize that the alternatives cited in Delisle and Devine
did not reproduce the lost evidence, but provided methods by which the
defendant could make the same point to the jury that would have been made
with the lost evidence. Similarly, here, defendant could make those points
and impeach the quality of the investigation fairly and effectively. See
Trombetta, 467 U.S. at 490 (although DUI defendant could not independently
evaluate breath sample after the State destroyed it, he could point out all
the reasons the analysis machine could give an inaccurate reading).
¶ 48. Defendant argues - to the point of citing articles to the
effect that "[l]aw professors and scholars have concluded that lying and
deception are widely practiced in police reports" - that the proven
omissions from the reports were so numerous and significant that the notes
certainly would have shown more deficiencies. He particularly points to
the evidence that the officers offered inducements and made threats to
potential witnesses to obtain favorable testimony and never disclosed these
inducements or threats, as required, or included them in the reports.
Because the offers of consideration and threats came out in pretrial
discovery, defendant has made no claim that they provide an independent
ground for relief on appeal. Indeed, defendant's ability to detail
promises and threats made by police demonstrate the effectiveness of the
investigation and discovery process.
¶ 49. We have no doubt that access to the notes could have provided
more ammunition with which to criticize the reports and the investigation,
but defendant faces a likelihood of diminishing returns. Moreover, we find
it unlikely that the notes contain a "smoking gun" of evidence suppression
since their purpose was to allow the officer to prepare the written report.
Defendant's suspicions do not persuade us that there would be great
remaining value in the notes. In the absence of that value, we conclude
that balancing of the Bailey factors supports the trial court's decision to
deny defendant's sanction request.
¶ 50. Defendant's final claim on appeal is that he should be granted
a new sentencing hearing because the trial court, in sentencing defendant
to fifty years to life, erroneously relied in part upon the aggravating
factor that the murder "involved multiple victims." 13 V.S.A. §
2303(d)(6). He argues that the trial court erred in using the definition
of "victim" set forth in 13 V.S.A. § 5301(4) - which includes in the
definition family members of the homicide victim - and thus concluding that
Gendron's widow, two children, and other family members such as his mother
and siblings were also "victims."
¶ 51. We agree with defendant that the term "victims" in §
2303(d)(6) refers only to the person killed, and that the court erred in
using the definition of "victim" from 13 V.S.A. 5301(4). First, § 5301(4)
of Title 13, which is part of Vermont's victim compensation statutes, is
inapplicable here. Not only does § 5301 specifically state that the
definition of "victim" contained in § 5301(4) applies only to the word
"[a]s used in this chapter," the different natures of this statute and §
2303 require different constructions of their key terms. The main purpose
of Vermont's victim compensation law is remedial in nature; it is designed
to protect victims of crime and to "ensure that crime victims are treated
with the dignity and respect they deserve while functioning in a system in
which they find themselves through no fault of their own." Id. § 5303(a).
As such, the statute should be liberally construed to accomplish its
purposes. State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993). In
contrast, § 2303 is part of a penal statute, which must be strictly
construed in a manner favorable to the accused. State v. Oliver, 151 Vt.
626, 629, 563 A.2d 1002, 1004 (1989).
¶ 52. Second, giving the term an expansive meaning to include
family members "would deprecate this [aggravating] factor and render it
meaningless. Every time a person is murdered, a spouse, child, parent,
sibling or collateral relative loses a loved one. Thus, this enhancement
factor would be applied by operation of law." State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). We thus hold that the term "victims" in
13 V.S.A. § 2303(d)(6) is limited to persons killed and does not include
family members of such persons, and that the trial court thereby erred in
using that section as an aggravating factor.
¶ 53. We must now consider whether this error has prejudiced
defendant such that a remand for resentencing is required. We review the
trial court's sentencing decision for an abuse of discretion. State v.
Keiser, ___ Vt. ___, ___, 807 A.2d 378, 389-90 (2002). Although we deem
the consideration of an improper aggravating factor to be an abuse of
discretion, see People v. McAfee, 774 N.E.2d 469, 473 (Ill. App. Ct. 2002),
such consideration does not always require resentencing. See State v.
Bacon, 169 Vt. 268, 273, 733 A.2d 50, 54 (1999) (applying harmless error
doctrine to sentencing proceedings); compare McAfee, 774 N.E.2d at 473
(requiring remand for resentencing where appellate court was unable to
determine the weight given the improper factor) with Scott v. State, 771 N.E.2d 718, 732 (Ind. Ct. App. 2002) (holding that, while trial court erred
in applying improper aggravating factor, remaining factors were sufficient
for sentence enhancements). Here, the trial court made a significant error
in determining the number of victims that could be taken into account in
the sentencing decision: while the correct reading of 13 V.S.A. §
2303(d)(6) dictates that there was but one victim in this case, the trial
court found at least six - "the deceased's widow . . . , his [two] children
. . . , and other family members such as his mother and siblings." The
court did not specify the weight given to this factor as compared to the
other factors, but it is reasonable to conclude that viewing the crime as
having six victims, some of them children, had a significant impact on the
court's decision to increase the minimum sentence by fifteen years. While
other valid aggravating factors considered by the trial court may have
provided an "independent basis for the sentencing decision," Bacon, 169 Vt.
at 273, 733 A.2d at 54, we cannot reach that conclusion given the court's
erroneous interpretation of the "multiple victims" provision of 13 V.S.A. §
2303(d)(6). We thus conclude that a remand is necessary to allow the trial
court to reconsider the sentence imposed with a correct interpretation of
that provision.
Defendant's conviction is affirmed. The trial court's determination of
defendant's sentence is reversed, and the matter is remanded to the trial
court for resentencing.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Justice Morse sat for oral argument but did not participate in this
decision.
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