State v. Paul Mason ( 2011 )


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  • Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
    ENTRY ORDER
    SUPREME COURT DOCKET NO. 2010-384
    AUGUST TERM, 2011
    State of Vermont                                      }    APPEALED FROM:
    }
    }
    v.                                                 }    Superior Court, Orleans Unit,
    }    Criminal Division
    }
    Paul H. Mason                                         }    DOCKET NO. 578-11-08 Oscr
    Trial Judge: David A. Jenkins
    In the above-entitled cause, the Clerk will enter:
    Defendant appeals his convictions following a jury trial of one count of first-degree arson
    and one count of burning to defraud an insurer. On appeal, defendant argues that the court erred
    in (1) denying defendant’s request for a mistrial because of a statement made by an excused juror
    during jury draw; (2) allowing an expert witness to testify as to his belief that defendant set the
    fire without sufficient cautionary instructions to the jury; and (3) denying defendant’s motion for
    acquittal for insufficient evidence. We affirm defendant’s convictions. In addition, we address a
    certified question from the trial court regarding the ability of the homeowner’s insurance
    company to receive restitution from defendant. As to the certified question, we conclude that
    defendant may be ordered to pay the insurance company restitution and remand that matter to the
    criminal division.
    The charges against defendant were brought following a fire in the house of his friend,
    homeowner Randy Blake, in the early morning of August 5, 2007. A neighbor and a passerby
    both noticed the blaze and notified the fire department around 3 a.m. The local fire chief
    referred it to an investigator. Lieutenant Detective Cruise of the State Police Fire Investigation
    Unit investigated the fire, and concluded that it was incendiary in nature.
    Jury draw occurred on March 29, 2010. During the jury draw, the prospective jurors
    were asked whether they knew defendant. One prospective juror answered: “I know [defendant]
    because my sister is married to his cousin, and [defendant] actually stayed with them for a while.
    I think he was on house arrest for something.” The juror was dismissed. There is no record in
    the transcript of an objection by defendant, but there was an unrecorded bench conference
    following the statement. The court then instructed the jury,
    If you hear anything during these proceedings, I charge you that
    these are not things that you should discuss in your deliberations.
    It’s not evidence and it may not be the law, so you are to disregard
    anything you’ve learned about what may be the evidence and
    decide the case only on the evidence that you hear from the
    witnesses, and take the charge, take the law from the Court which I
    will give you at least before you deliberate, and not from anything
    that’s said here in questions, answers, or suggestions as to the law.
    The trial proceeded. As part of its case, the State presented testimony from defendant’s
    girlfriend at the time of the fire and from the homeowner. The girlfriend testified that defendant
    had told her that he planned to burn down the house for the insurance money, and that he was
    expecting homeowner to give him twenty percent of any recovery. There were also recorded
    conversations played for the jury between defendant and his girlfriend regarding the fire. The
    homeowner testified that he and defendant had a conversation about burning down the house and
    discussed when the homeowner would be away. The homeowner also testified that they agreed
    to share the insurance money and that defendant would receive ten percent.
    In addition, Lieutenant Detective Cruise, who is trained in accordance with a nationally
    recognized guideline for fire and explosion investigation, testified concerning his expert opinion
    about how the fire started. He explained the methodology he used to investigate the fire, based
    on national guidelines. He listed the factors used in the investigation, including witness
    observations and the fire and burn analysis. After describing and analyzing the fire scene photos
    and explaining his interpretation of the burn patterns on the first day of trial, he described the
    interview phase of his investigation on the second day of trial. He recounted interviews that he
    conducted with various individuals including defendant, defendant’s girlfriend and the
    homeowner. Defendant objected to admission of these conversions, arguing that it was up to the
    jury to determine the veracity of the witnesses and the import of their statements. The court
    overruled these objections. Based on his investigation, the expert testified that he concluded the
    fire was incendiary and set by defendant.
    At the close of the State’s case, defendant moved for judgment of acquittal. The court
    denied the request, concluding that there was sufficient evidence to convict. Defendant did not
    testify, but presented testimony from his coworker who testified that defendant was working with
    him as a bouncer the night and early morning of the fire. Although the coworker could not
    remember when defendant left that night in particular, he testified that usually on a Saturday
    night defendant would not leave until after 2:30 a.m., and likely not until 3 a.m. In closing
    arguments, defendant’s theory of the case was that defendant did not have enough time to set the
    fire. He argued that it was ignited by someone else in association with homeowner. As his
    attorney argued: “we’re not contesting that this was a fire that was set, we’re saying that Randy
    set it or that someone in Randy’s employ set it.”
    The court charged the jury. As to expert witnesses, the court instructed the jury: “The
    weight to be given to expert testimony is solely a matter for your determination. You can believe
    all, part, or none of any expert witness’ testimony.” Defendant objected to the instructions on
    two points unrelated to expert witness testimony. The jury found defendant guilty on both
    counts. On April 19, 2010, defendant filed a post-trial motion claiming, among other things, that
    the potential juror’s comment tainted the jury pool and that Lieutenant Detective Cruise was
    impermissibly allowed to testify about defendant’s guilt. The court denied the motion and
    sentenced defendant. Defendant appealed.
    Subsequently, the State requested restitution for the homeowner’s insurance company
    based on amounts it paid to homeowner and the mortgagees on the property. The parties
    submitted an agreed statement of facts and the court certified the following question of law to
    this Court: whether defendant could be ordered to pay the insurance company restitution. The
    question was entered on this pending docket for defendant’s direct appeal.
    2
    Defendant first argues that the potential juror’s comment tainted the jury pool and
    necessitated a new trial. Motions for a new trial are entrusted to the discretion of the trial court
    and will not be disturbed absent an abuse of that discretion. State v. Grega, 
    168 Vt. 363
    , 370
    (1998). “[T]he trial judge is in the best position to determine whether a jury has been tainted,
    and consequently, every reasonable presumption in its favor is accorded to the ruling below.” 
    Id.
    (quotation and alteration omitted). Although it is unclear from the record that this objection was
    properly preserved for appeal,1 we nonetheless consider it and conclude that the court did not err
    in denying the motion. The individual was dismissed from the jury pool. Further, the isolated
    comment had no bearing on the actual issues involved in the case, and there was no evidence that
    the comment “affected the jury’s ability to make a fair and impartial decision.” 
    Id.
     Finally, the
    judge provided a curative instruction to prevent any misuse of the statement. Under these
    circumstances, the court did not abuse its discretion in denying the motion.
    Defendant also argues that he is entitled to a new trial because the State’s expert was
    impermissibly permitted to offer an opinion on defendant’s guilt, without the court “caution[ing]
    the jury regarding the weight it should assign to so-called ‘expert testimony.’ ”2 As an expert,
    Lieutenant Detective Cruise was qualified to testify as to his opinion of how the fire started and
    could rely on hearsay evidence to form his opinion. V.R.E. 702, 703; State v. Prior, 
    174 Vt. 49
    ,
    56-57 (2002). We do not address any claim regarding the quality of the court’s instructions
    because defendant failed to object to the court’s instructions regarding expert witnesses
    following the jury charge, V.R.Cr.P. 30, and does not argue plain error on appeal. State v.
    Lampman, 
    2011 VT 50
    , ¶ 33, __ Vt. __ (mem.).
    Next, defendant argues that the court erred in denying his motion for acquittal. In
    reviewing a motion for acquittal, “we must consider 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. Muscari, 
    174 Vt. 101
    , 105 (2002) (quotation omitted). Defendant’s claim that
    the State’s evidence was insufficient because no physical evidence was found at the scene to link
    him to the fire is not dispositive since the incendiary nature of a fire may be proven by
    circumstantial evidence. State v. Perras, 
    117 Vt. 163
    , 167 (1952). We are also not persuaded by
    defendant’s argument that the State’s evidence was insufficient because the State relied on the
    testimony of defendant’s girlfriend and the homeowner, both of whom defendant claims
    presented unreliable and inconsistent evidence. The credibility of witnesses does not have an
    impact on the sufficiency of the evidence, however, but on the weight to be given that
    evidence—a matter for the jury to decide. State v. Hinchliffe, 
    2009 VT 111
    , ¶ 22, 
    186 Vt. 487
    .
    When viewed in a light most favorable to the State, the testimony of defendant’s girlfriend, the
    homeowner and the State’s expert all provided enough evidence to demonstrate that the fire was
    incendiary.
    1
    The record does not reveal that defendant moved for a motion of acquittal at the jury
    draw. The transcript indicates that following the potential juror’s comment there was a bench
    conference, but it was not recorded. In trial court post-trial motions, trial counsel represented
    that a motion for mistrial was made. This assertion is insufficient, however, to preserve the
    issue. It is defendant’s responsibility to preserve an objection for the record. Defendant should
    have either ensured that the record reflected the objection or for purposes of appeal created a
    statement of the proceedings in accordance with the procedures described in Rule of Appellate
    Procedure 10(c).
    2
    Defendant did not argue either in the trial court or in this Court that the opinion that
    defendant set the fire was inadmissible.
    3
    Finally, we address the legal question certified from the criminal division as to whether
    defendant may be ordered to pay restitution to the insurance company. We have held that when
    an insurance company is directly damaged by a crime, it may receive restitution as the victim of
    the crime. State v. Bonfanti, 
    157 Vt. 625
    , 629 (1991). In this case, the insurance company’s
    status as a direct victim is even more apparent than in a case involving arson only because
    defendant was also convicted of burning to defraud an insurer—by definition a crime that harms
    the insurance company. See id. at 628 (analogizing harm caused to insurance company by arson
    to harm caused by embezzlement). In addition, as agreed on in the statement of undisputed facts,
    the homeowner was a codefendant and in privity with the insurance company that paid claims to
    third parties. Therefore, as in Bonfanti, the acts of defendant and homeowner, his codefendant,
    caused direct harm to the insurance company and may be recouped through restitution. The
    matter is remanded for the criminal division to determine the amount of restitution and
    defendant’s ability to pay. See State v. Sausville, 
    151 Vt. 120
    , 121-22 (1989) (requiring finding
    on defendant’s ability prior to ordering restitution).
    Defendant’s convictions for first-degree arson and burning to defraud an insurer are
    affirmed. The restitution matter is remanded to the criminal division.
    BY THE COURT:
    _______________________________________
    John A. Dooley, Associate Justice
    _______________________________________
    Denise R. Johnson, Associate Justice
    _______________________________________
    Marilyn S. Skoglund, Associate Justice
    4
    

Document Info

Docket Number: 2010-384

Filed Date: 8/31/2011

Precedential Status: Non-Precedential

Modified Date: 4/18/2021