State v. Webster, 2017 VT 98
You’ll likely remember this case from when it happened several years ago. (Very) Briefly, Mr. Webster and his wife had some problems in their marriage, including Mr. Webster having a long-term extramarital relationship with another woman. Mr. Webster and his wife argued a lot, including the day of this incident. They drove in separate cars and ended up in a public parking lot, where they argued. Following the argument they both pulled out of the parking lot. Just as Mr. Webster was pulling out, he cut off a car driven by Anna Alger. Anna was annoyed by this and gave him the finger. He pulled over and then she pulled over and shouted at him for cutting her off. Mr. Webster got out of the car, waved a gun around and shot the gun eleven times. Seven or eight of the shots hit Anna, and she was killed on scene. He tried to turn the gun on himself, but the gun malfunctioned. There’s no evidence that Mr. Webster and Anna knew each other or had any interaction prior to the traffic incident.
Mr. Webster was charged with second-degree murder. He had a trial and was convicted. He appeals to SCOV, raising several points of error. The conviction and sentence are affirmed.
Warning: this is kind of long, so I’ll do my best to keep this as “summary” as possible.
First up—Mr. Webster sought pretrial to have his confession suppressed. This was denied by the trial judge. SCOV upholds this.
Without recounting the entire back-and-forth between Mr. Webster and the police, the basic sequence went like this: Mr. Webster made a number of incriminating statements prior to being read his Miranda warnings. Then, upon being Mirandized (don’t you love how we’ve made that a verb? I do), he was sort of equivocal about whether he wanted to talk to an attorney. But then he ultimately decided to waive that right and to tell the officer what happened. He sought to have this interaction suppressed.
SCOV goes through a very thorough Miranda analysis. First of all, for Miranda to even apply at all, a suspect must be both in custody and subject to interrogation or its functional equivalent. There’s no doubt he was in custody at the time he made statements—this happened after being arrested and taken to the police department.
However, for at least part of the interaction, he wasn’t subject to interrogation. There were several incriminating statements he made spontaneously and without being warned that he didn’t need to speak. This wasn’t something done as a result of the police compelling him to speak, this is something he did of his own volition. It’s well-settled law that statements initiated by the suspect and not in response to questioning are admissible.
After being read his Miranda warnings, Mr Webster was equivocal, or at least, somewhat unclear, about whether he wanted counsel or not. A waiver of the right to counsel must be done voluntarily and with the knowledge of what the suspect is giving up. The court has to examine the totality of the circumstances surrounding the waiver to determine if it was valid. If challenged, the burden is on the state to prove that the waiver was knowingly and voluntarily given.
On the other hand, it’s got to be clear that the suspect actually wants to talk to an attorney. A suspect saying something like, “Think I ought to talk to a lawyer?” or “maybe I should talk to a lawyer” isn’t enough. It’s got to be concrete and clear that the suspect wants legal advice. Unfortunately for him, Mr. Webster’s statement really wasn’t clear, and under federal law (and, by extension under Vermont law, because Vermont generally follows federal precedent for Miranda purposes), there was no obligation by the police to stop questioning or to find him a lawyer.
In examining all the circumstances around Mr. Webster’s waiver of counsel and subsequent confession, SCOV determines the trial court properly denied suppression of his statements. [Although, based on the facts of the case, it seems pretty possible the case could have gone forward in the absence of his statements, since this was a shooting that took place on a public street around 5:00 p.m.—there were plenty of witnesses who could say what they saw. Just my two cents.]
Second, Mr. Webster challenged the admission of testimony regarding his sanity. Here’s the thing about “sanity”—it’s a defense. And if a defendant wants to raise it, the defendant has to prove that he was “insane” at the time of the offense. The state, of course, can counter that, but it isn’t required to raise sanity to discount it in its case in chief.
Here, the state had a psychiatrist testify about Mr. Webster’s mental state. The psychiatrist included an opinion that Mr. Webster wasn’t sane at the time of the offense. The defense objected, saying that insanity wasn’t being raised, and by using that word and the terms around it that it could have confused the jury.
SCOV agrees with this and says that the doctor’s testimony about sanity shouldn’t have been admitted since that wasn’t raised as a defense and thus that particular testimony was irrelevant. However, the judge instructed the jury to ignore the parts about insanity because it was irrelevant. Instead, there was an instruction that the state had to prove the defendant’s intent (which is true; the state has to prove that element) and that the jury could consider all the facts and circumstances around the defendant’s state of mind.
SCOV basically concludes the jury instruction cured the problem.
Next, SCOV tackles some issues with the prosecutor’s closing argument. SCOV points out they’ve decided several cases over the recent years about prosecutors going a little bit rogue in their closing arguments and tells them to stop it.
The point of closing arguments is for each side to be able to sum up the evidence and argue about what the evidence means. But there are things each side doesn’t get to do in closing arguments. Parties are allowed to object during closing arguments. If a party objects to an improper statement or comment, the court has to consider whether the comment was improper and if so, whether it impaired the defendant’s right to have a fair trial. In reviewing such a comment, SCOV reviews the comments in light of the whole trial, and not in isolation.
There may be stray comments that aren’t proper, but in the long run, wouldn’t have an overall impact on the outcome of the trial. If that’s the case, the error is harmless and there is no reason to reverse.
If there’s an improper comment and a party fails to object, SCOV applies the plain error standard. This is a big hurdle to cross because it’s got to be shown that the comment was so egregious that it impairs a defendant’s right to a fair trial and “strikes at the heart of the defendant’s constitutional rights or results in a miscarriage of justice.” That’s a lot.
So, what makes the argument cross the line into “not okay?” Closing arguments can’t be inflammatory. They can’t go outside the evidence and reasonable inferences drawn from the evidence. There can’t be personal opinions involved. And a prosecutor can’t ever ask a jury to put themselves in the shoes of a victim.
First, the prosecutor here referred to a defense argument as a red herring. The defense objected and the court sustained the objection and instructed the jury to disregard the statement. SCOV finds this to be objectionable but isolated, and reasons that it was cured by the jury instruction.
Second, there were some statements the defense did not object to in the state’s closing argument. SCOV finds these statements don’t rise to plain error.
Third, the prosecutor violated the “golden rule” and essentially asked the jury to put themselves in the victim’s shoes. SCOV says this was out of bounds, but that overall the closing argument wasn’t “manifestly and egregiously improper.” So, there was no error.
Mr. Webster had moved for a new trial as a result of the improper closing argument. The trial court denied that and SCOV affirms.
Up next, Mr. Webster appeals the fact the court did not include a lesser-included offense of voluntary manslaughter in its instructions to the jury.
Voluntary manslaughter can be instructed as a lesser-included offense of second-degree murder if there is evidence that there were mitigating circumstances around the killing. This often is called provocation.
Here, Mr. Webster never argued that he wasn’t the one who did the shooting. Rather he argued alternatively that he didn’t have the intent to commit murder, and therefore wasn’t guilty of murder. This opened the door for an involuntary manslaughter instruction, which does not require proof of the same mental state as second degree murder. He also argued he was provoked, and acted as a result of provocation. The court instructed the jury on second degree murder and involuntary manslaughter, but not voluntary manslaughter.
The question, therefore, is whether the court erred in omitting the voluntary manslaughter instruction.
In a word, no.
SCOV agrees that once it’s established that a “sudden passion” or provocation exists in a situation that leads to a killing, that it’s the state’s burden to disprove that provocation beyond a reasonable doubt. Vermont doesn’t exactly have a definition of “provocation” (trust me when I tell you that I know this), but other states have used phrases like “causes a defendant to act out of passion rather than reason” and “would cause a reasonable person to lose control.”
There’s got to be enough of a situation that the provocation would have to cause someone to act without thinking. And it has to be reasonable under the circumstances. We’re talking about perhaps a violent situation or a fight. But it’s not transferrable. If David and Paul are in a fight, and David shoots Vicki, there isn’t really room for voluntary manslaughter of Vicki because Vicki wasn’t part of the provocation.
Here, Mr. Webster tried to argue that he was in a heated emotional condition because of his fight with his wife, he never cooled off, and when he encountered Anna that he was acting out of the raised emotions from before. SCOV says it doesn’t work this way, and that the trial court was appropriate in not instructing the jury on voluntary manslaughter.
SCOV disposes of this quickly and points out that the trial court made appropriate findings and weighed the information and factors before it. Trial courts have wide discretion in imposing sentences, and as long as the sentences aren’t created of personal animus and appropriately factor in the information presented, the court will likely be upheld.
SCOV said the trial court was very appropriate in how it fashioned the sentence. There was no bias shown. There was no error in this sentence.
So, SCOV affirms everything here.