Newly Discovered Evidence on Aisle Five

By Amy Clarise Ashworth

State v. Bruno, 2012 VT 79

The facts of today’s case stand in stark contrast to the idyllic village scenes and pastoral country sides that most people associate with Vermont.  For starters, Defendant sold the victim forty dollars’ worth of heroin on credit, and the victim promised to pay him back.  

A few days later, Defendant was still waiting for his money, but not very patiently.  Defendant started calling the victim’s home, cursing at the victim and his family, and, eventually, making threats.  The victim’s father called the police, who came to investigate.  Defendant, obviously blessed with the gift of impeccable timing, called the victim’s residence while the police were on the scene.  The victim’s father handed the phone to the police, who spoke directly to Defendant.  No surprise, Defendant stopped calling.

Several days later, Defendant–high on crack cocaine and shopping at the local Walmart–spotted the victim as he and a friend were visiting a nearby bank.  An argument ensued and, at some point, the two ended up behind the Walmart fighting it out like men—mano y mano.  

Unbeknownst to the victim, Defendant brought a knife to the fist fight.  According to the eye-witness testimony at trial, the victim threw the first punch, but Defendant threw the last.  Sadly, Defendant didn’t punch the victim at all; he slashed through the victim’s throat with his knife.  The victim ran from the scene clutching his neck, but died in his friend’s arms minutes later.

Defendant was convicted of second degree murder, following a jury trial.  He never denied slashing the victim, but argued at trial that the victim had come at him with a pipe. Hence, Defendant claimed that the killing occurred in self-defense.  The only real problem with Defendant’s self-defense claim was that, other than the Defendant, none of the eye witnesses saw the victim with a pipe, and the police did not recover a pipe from the scene.  Turns out, that’s a pretty big problem.  Unless . . . well, we will get to it.

Defendant also argued at trial that his crack cocaine intoxication should have mitigated the charged offense (i.e., reduced the offense) from second degree murder to voluntary manslaughter since he was suffering from diminished capacity at the time of the offense (this is tantamount to “I was too high to really know what I was doing”). 

The jury rejected Defendant’s self-defense and diminished capacity arguments, and he was sentenced to thirty-five years to life for second-degree murder.  An automatic appeal to the SCOV was entered.

One month after Defendant was sentenced to jail, his Heroine arrived on scene (note the “e,” as in a female character in a book or play that comes in to save the day.  It’s an important distinction; you should not be envisioning some contraband care package making its way through the corrections department.  Besides, my understanding is that the preferred delivery method for contraband these days is on the under bellies of cats, rather than neatly packaged in corrugated cardboard, but I digress.). 

The new witness, who also happened to be in the Walmart vicinity on the date and time in question, told Defendant’s mother and his defense counsel that she witnessed the altercation between Defendant and the victim and that she recalled seeing the victim with a pipe-like object.  Let’s pause.  You have just been sentenced to jail for thirty-five years to life and someone just breathed new life into your self-defense claim (which, if successful, buys you a “get out of jail free” card—you are totally off the hook). This has to be the equivalent of winning powerball in the jailhouse lottery. 

Defendant filed a Motion for New Trial, based on newly discovered evidence.  The trial court held a hearing, but ultimately found that Defendant’s heroine was not a credible witness, i.e., the judge didn’t believe her story so she didn’t save the day after all (and so this would be equivalent to finding out that your winning ticket was one of those awful, fake lottery tickets that your dear old Uncle Ted thought would be a “hilarious” birthday gift.  It’s a total let down).

Defendant argues, on appeal, that: (1) his motion for new trial should have been granted; (2) two jurors should have been dismissed for cause; and (3) the jury instruction on diminished capacity was improper.  

In analyzing whether Defendant should have received a new trial based on newly discovered evidence, the SCOV first notes that courts are reluctant to grant such motions since it affords defendants a second bite at the apple.  As such, to succeed on a motion for new trial, the defendant must prove five separate elements.  In this case, however, because no one contested the trial court’s findings on four of the five required elements, the SCOV only addresses whether the newly discovered evidence (a.k.a, the Heroine’s testimony) would probably lead to a different result upon retrial.   

The SCOV sides with the trial court.  It appears that the Heroine’s testimony was just too inconsistent with all the other evidence presented to the trial court.  Indeed, Heroine’s testimony was not only imprecise, but also contradicted Defendant’s own version of events (in this regard, perhaps he wasn’t so surprised when it turned out Uncle Ted’s lottery ticket was a fake). 

Moreover, even though the SCOV is largely focused on analyzing whether the trial court abused its discretion in denying Defendant’s motion, the SCOV cannot resist the urge to analyze, for itself, whether Heroine’s testimony is credible.  The SCOV sets forth various scenarios involving the alleged pipe, but ultimately finds that Heroine’s version of events appear to be implausible, if not downright impossible.  The SCOV thus concludes that the trial court did not abuse its discretion when it determined that the Heroine’s testimony would probably not lead to an acquittal on retrial (guess we can’t refer to her as “the Heroine” anymore).

The SCOV next considers whether two jurors should have been dismissed “for cause.”  In a jury trial, jurors can be dismissed for no reason at all (a peremptory challenge) or “for cause” (because there is a reason to dismiss the juror).  Think of it like a job.  Your boss can fire you just because she wants to (that’s peremptory) or she can put forth a reason (that’s “for cause”).  The important thing to understand here is that in a “for cause” challenge, the defense or state offers a reason for the juror’s potential dismissal, and the judge determines whether there is sufficient “cause” to dismiss the juror (in a peremptory challenge, the decision to dismiss rests solely with counsel).

Defendant argues that the first juror (who we will subsequently refer to as “Juror no. 1”) should have been dismissed because she admitted during jury selection that she would be uncomfortable if the Defendant did not testify in his defense.  All of the jurors were thereafter informed that the Defendant did not have to testify at trial (he did not have to prove he was innocent).  Rather, the state had to prove that the defendant is guilty.  After clarifying the respective obligations of the defendant and the state, Defendant’s counsel asked juror no. 1 if she could set aside her feelings regarding Defendant’s right not to testify.  Juror no. 1 basically said “no.”  Defense counsel then asked her to “think about it for a minute,” and defense counsel changed subjects. 

Later in the process, Juror no. 1 also admitted that she would have trouble setting aside her feelings with respect to the “drug-dealing aspect of the case.”  This time, the Judge followed up, asking juror no. 1 numerous questions about her feelings and whether she could set those aside.  Juror no. 1 said she could.  Even so, defense counsel asked the judge to dismiss Juror no. 1 for cause.  The judge denied counsel’s request, but indicated that the court would reconsider the request if new facts came out during the remainder of selection process.  Defense counsel did not question juror no. 1 further (if this little news flash just caused some twisted knot in your stomach, you are NOT alone).  When defense counsel finished, she renewed her request to dismiss juror no. 1.  Given that defense counsel offered no new facts to support her request, the trial court again denied the request.  Defense counsel then used Defendant’s final peremptory challenge to dismiss Juror no. 1.

The SCOV is quick to point out the trial court’s obligation to protect a criminal defendant’s constitutional right to trial by an impartial jury, but also notes the extremely deferential standard by which it evaluates a trial court’s purported abuse of discretion in this regard.  The SCOV then distinguishes between “fixed bias” and “implied bias,” the two different categories that “for cause” dismissals fall into in Vermont.  Since the SCOV concludes that Juror no. 1 did not demonstrate a fixed bias related to her feelings about drugs, it finds that the trial court did not abuse its discretion in refusing to dismiss Juror no. 1 for cause.

And then there is that little knot in your stomach.

The SCOV states that a defendant’s right to challenge a juror is “waived by a failure to object before the jury is impaneled if the basis for the objection is known or might, with reasonable diligence, have been discovered during [the selection process].”  Since defense counsel never questioned Juror no. 1 again with respect to her feelings about a defendant’s right not to testify, the SCOV finds counsel waived the objection and denied the trial court an opportunity to ask Juror no. 1 clarifying questions.  As such, the SCOV reviews the trial court’s refusal to dismiss Juror no. 1 for “plain error” ( the SCOV could also just say “we will take a look at this, but you’re probably not going to win this argument”). 

Just so you learn something today, however, you should know that the  SCOV only finds “plain error” in “extraordinary situations,” or when an error is so obvious that it “results in a miscarriage of justice.” Take a guess as to whether the SCOV finds the trial court’s refusal to dismiss Juror no. 1 for cause to constitute plain error.  You’re absolutely right, the answer is “no.”

Likewise, the SCOV quickly disposes of Defendant’s claims related to Juror no. 2.  The potential jurors had filled out questionnaires, which required them to state whether any of their family members were affiliated with law enforcement. The State’s Attorney then questioned several jurors, including Juror no. 2, as to their affirmative answers.  Juror no. 2 revealed that her brother worked for the Department of Corrections.  The state asked Juror no. 2 several questions related to her brother’s employment, including whether her brother had spoken to her about the Defendant.  Defense counsel requested that Juror No. 2 be dismissed for cause since the state’s questioning revealed the highly prejudicial fact that Defendant was incarcerated. 

Defendant argues, on appeal, that this type of highly prejudicial questioning is equivalent to exposing the jury to a defendant in shackles and impairs his right to a fair trial.  The SCOV disagrees and concludes that while the questioning may have implied that Defendant was incarcerated at some time “a brief reference to a defendant’s incarceration is not enough . . . to undermine the presumption [of innocence] and cause a mistrial.”

Lastly, the SCOV considers Defendant’s claims that the trial court’s jury instructions related to his diminished capacity were confusing and instructed the jury to improperly apply an objective standard in its analysis.  Specifically, Defendant argues, on appeal, that the court’s diminished capacity instructions did not clearly instruct the jury on what to do if they found he had diminished capacity.  He objects, in particular, to the trial court’s use of the word “may” in the instructions.  The jury was instructed that Defendant’s use of drugs or mental illness “may” be relevant to his mental capacity (his intent to commit the crime) and that diminished capacity “may” lessen the charged offense.

The SCOV begins, again, by noting that since Defendant did not object to the jury instructions below, it reviews the instructions only for “plain error.”  Yeah, you can basically stop reading now; Defendant doesn’t win on these arguments either. 

If you are still interested, however, the SCOV disagrees with Defendant that the diminished capacity instruction was confusing since the jury was advised “twice” that Defendant could not be convicted of second-degree murder if he suffered from diminished capacity.  Moreover, the SCOV is not persuaded that mere use of the word “may” in the jury instructions was so confusing as to result in a plain error reversal.  Rather, notes the SCOV, the trial court’s use of the word “may” simply illustrates that the questions posed rested solely within the jury’s discretion; the jury “may” have found Defendant’s drug use relevant to his mental state and, if so, his mental state “may” have lessened the offense.

The SCOV is also not persuaded that the voluntary manslaughter instruction improperly required an objective standard with respect to Defendant’s diminished capacity. The specific reference in the instruction was to a provocation that would cause a “reasonable person to lose self-control.” While the SCOV acknowledges that the reference to a “reasonable person” in the instruction might apply not only in the case of provocation, but also with respect to “sudden passion,” it does not find the reference applicable to diminished capacity.  This is particularly true given that the trial court subsequently explained “provocation” and “sudden passion,” and, as previously noted, instructed the jury twice to analyze whether “he,” the Defendant, had the requisite capacity and intent to commit the crime.  Thus, the SCOV is satisfied that the jury analyzed Defendant’s capacity according to a subjective standard and it finds no “plain error.”

So much for any surprise rescues for Defendant or any chance that he might grind out a reversal.  The conviction is upheld, and Defendant can only hope that some of the mistakes alleged here pan out when he takes his Post-Conviction Review petition up to the superior court. 

In the meantime, he might want to check People of Walmart to see if anyone else has posted additional evidence.