State v. L'Esperance

1

2024 VT 74

State of Vermont v. Rodney L. L'Esperance

No. 23-AP-068

Supreme Court of Vermont

November 22, 2024

On Appeal from Superior Court, Franklin Unit, Criminal Division.

Martin A. Maley, J. Evan Meenan, Deputy State's Attorney Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and A. Alexander Donn Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

EATON J.

¶ 1. Defendant appeals from his conviction of aggravated assault following a jury trial. He argues that the court erred in denying his motion for a new trial. We affirm.

I. Proceedings Below

¶ 2. Defendant was charged with attempted second-degree murder for allegedly stabbing his roommate in the neck with a fillet knife in November 2019. Defendant admitted stabbing his roommate but argued that he acted in self-defense.

¶ 3. The following evidence was presented at trial. Defendant's roommate testified that, before the stabbing incident, he and defendant "had a great relationship" and they "were big time drinking buddies." They occasionally wrestled with each other. On the evening in question, the roommate and defendant were at a bar together. They started wrestling, which "[g]ot a little aggravated on both sides" and "out of hand." They exchanged words and the roommate struck defendant. Defendant injured his ankle during the scuffle and broke his glasses. Defendant was angry at his roommate, stating that they had taken things too far. The bartender told the roommate to go home, which he did, leaving his phone behind. The roommate got home around 2:00 a.m. and went to bed. Defendant stayed at the bar and later walked home with the bartender.

¶ 4. The roommate noticed when defendant returned home but then fell back asleep. The roommate later woke up with shooting pain in his neck. The roommate saw defendant standing over him with his hand at the roommate's neck and the blade of a knife "plunged deep and upwards." Defendant pulled out the knife and the roommate grabbed defendant and put up his hands to protect himself. The knife was very sharp and the roommate's hands were badly injured when defendant tried to stab the roommate again. The roommate recognized the knife as one that defendant kept by his bed and used for ice fishing and hunting. Defendant was hysterical. The roommate told defendant to call 911, which he did.

¶ 5. The bartender also testified. He said he had known defendant and the roommate for about eight years. The bartender described the scuffle at the bar that evening and testified that defendant was mad at the roommate. The bartender told the roommate to leave the bar and the roommate left in a huff, leaving behind his jacket and cellphone. The bartender and defendant left the bar around 2:30 a.m. On their walk home, defendant's ankle was hurting and defendant grew increasingly upset. The bartender testified that defendant threw the roommate's phone on the ground and broke it; defendant also mentioned having an ice fishing fillet knife and said that if the roommate "tried that again, he would get it." The bartender said defendant iced his ankle at the bartender's house for about an hour. Defendant left around 4:30 a.m. ¶ 6. The State asked the bartender why he hadn't revealed defendant's statement about the knife at defendant's weight-of-the-evidence hearing. The bartender responded that he had answered a specific question posed to him at that hearing and had not elaborated. Defense counsel also cross-examined the bartender about why he hadn't disclosed this statement during the weight-of-the-evidence hearing. An additional witness testified and the State rested.

¶ 7. After defendant presented one witness, defense counsel asked the court to take judicial notice that the bartender had a recent driving-under-the-influence (DUI) charge that was dismissed without prejudice several months before defendant's trial. Defendant wanted the court to provide this information to the jury. The court denied the request, questioning whether it was an appropriate subject for judicial notice. The court indicated that defendant could recall the bartender to inquire about the DUI dismissal. Defendant chose not to do so.

¶ 8. The attorneys wore face masks during defendant's June 2022 trial because of the COVID-19 pandemic. The court alerted counsel, beginning with the jury draw, of the need to speak up given the use of masks. It repeated this request during trial when it had difficulty hearing counsel. During a recess on the second day of trial, which followed defense counsel's direct examination of defendant, the court told the attorneys, particularly defense counsel, that the jurors were having trouble hearing the questions. The court indicated that it had repeatedly told defense counsel to speak up throughout the trial and that, for whatever reason, counsel did not consistently do so. Defense counsel did not seek any relief that day. The proceedings continued and the State cross-examined defendant followed by defense counsel's redirect.

¶ 9. During his testimony on direct, cross-examination, and redirect, defendant asserted that he acted in self-defense. According to defendant, when he got home, the roommate was sitting on the edge of his bed, telling his dogs to be quiet. Defendant heard the roommate say that he missed his kids and he wanted to kill himself. Defendant asked from his bedroom what was going on. The roommate repeated that he missed his kids and wanted to kill himself. Defendant got up, grabbed his fillet knife, and went into his roommate's bedroom. He said he took the knife because the roommate had been acting unpredictably that evening. He later testified that the roommate first threated to kill defendant while defendant was in his own bedroom. According to defendant, once he entered the roommate's bedroom, the roommate threatened to kill other people, including threatening twice to kill defendant. While defendant's back was half-turned to the roommate, defendant heard the roommate get off the bed. He turned and saw the roommate coming at him and defendant was afraid the roommate would try to take the knife and kill defendant. Defendant swung around with his knife and felt it hit the roommate. The roommate fell back onto the bed. Defendant then called 911 and tried to assist the roommate. During his direct testimony, defendant played a video reenactment of what he said occurred that evening. He then explained what was on the video. Videos from the responding police officer's body camera were also played for the jury.

¶ 10. Defendant stated numerous times during his direct examination that he did not intend to kill the roommate. The court commented on the repetitive nature of the testimony but allowed it. Defendant then testified again that the roommate had threatened to kill defendant three times in their shared apartment that evening, including once while defendant was in his own bedroom. This assertion was repeated on cross-examination. The State also repeated portions of defendant's direct testimony and asked him about it. On redirect, defendant again testified as to his version of events that evening, including asserting that the roommate threatened defendant three times that evening. The court again flagged the repetitive nature of the testimony but allowed it.

¶ 11. The following day, defendant moved for a mistrial on several grounds. He first asserted that a mistrial was warranted based on the court's earlier statement that the jurors had difficulty hearing defense counsel. Defendant argued that it was incumbent on the court to make sure that the jury could hear defense counsel.

¶ 12. The court rejected this argument. It indicated that it did not see a way to cure the issue and reiterated that it had admonished defendant's attorneys during trial to ensure they were keeping their voices up, but they had continued to drop their voices. The court noted that the witnesses had at times asked the attorneys to speak up, as had the court. It added that defendant had not appeared to have any difficulty hearing his counsel's questions, which defendant had answered during his testimony. The court also pointed out that when defendant did have difficulty hearing anything, he had asked the attorney to repeat the question. The court thus did not believe that there was a problem with the jurors not fully hearing the attorney's questions, although it recognized that they had expressed some concern about that. The court believed that this issue fell to the attorneys, not the court, given its repeated admonishment to speak up. Counsel responded that he did not want to be seen as appearing overly aggressive or yelling. The court indicated that, if this was a strategy, counsel took the risk of not being heard.

¶ 13. Defendant also sought a mistrial because the State had not timely disclosed the bartender's statement about what defendant allegedly said to the bartender on their walk home. The bartender made this statement to a police officer in January 2020 and it was recorded on the officer's body camera but it was not disclosed to the defense. The court found a discovery violation but did not find any prejudice from the late disclosure as it was not apparent what defense counsel would have done differently during his cross-examination of the bartender. The court offered various opportunities to defendant to address this issue, all of which defendant declined. The court denied defendant's request to strike the bartender's statement about the knife from the record. The jury subsequently found defendant guilty of aggravated assault, a lesser-included offense of attempted second-degree murder.

¶ 14. Defendant then moved for a new trial. Under the...