# State v. Delisle > Supreme Court of Vermont · July 1, 1994 · 162 Vt. 293 URL: https://www.frixlaw.com/law-library/cases/9647066 ## Case - **Full name:** State of Vermont v. Wayne E. Delisle - **Court:** Supreme Court of Vermont - **Decided:** July 1, 1994 - **Citations:** 162 Vt. 293; 648 A.2d 632; 1994 Vt. LEXIS 77 - **Precedential status:** Published - **Opinion:** Concurrence by Johnson - **Judges:** Allen, C.J., and Gibson, Dooley, Morse and Johnson - **Cited by:** 83 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9647066 ## How later opinions describe it (automated extraction) - concluding that because evidence showed that the victim and the defendant were in a deteriorating love affair, the victim had told defendant that she had a “dark tale to tell,” and the manner of death was manual strangulation, “[t]hese facts could conceivably have led the jury… - concluding in case involving lost evidence that federal due process standard “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 defend… - holding that where the defendant shows a reasonable possibility that the lost evidence would be exculpatory, state constitutional due process standards require balancing of the culpability of the government, the prejudice to a defendant, and the importance of the lost evidence - holding that where the defendant shows a reasonable possibility that the lost evidence would be exeulpatory, state constitutional due process standards require balancing of the culpability of the government, the prejudice to a defendant, and the importance of the lost evidence - concluding balancing test favored State in case involving loss of victim’s hyoid bone, which defendant wanted to use to show victim was not strangled as state claimed, and tarp on which 10 body was found, which defendant wanted to use to show witness who testified defendant ha… ## Opinion text Johnson, J., concurring. This appeal involves the intersection of two statutory rights accorded to defendants in criminal cases: the right not to be prosecuted for a crime after the statute of limitations has run, and, in a prosecution for murder, the right to have the jury instructed on all lesser-included offenses. I agree with the majority that defendant in this case should not have had to choose between these two rights, but the choice the majority now puts to defendant is no better. In the face of two statutes that may be fully implemented without conflict, the majority has created a collision, and resolved it with a flawed compromise that ultimately negates both rights and forces defendant to essentially the same choice from which the majority purports to save him. Therefore, although I agree defendant’s conviction must be reversed, I do not join in part III of the Court’s opinion. I. A. It has long been the policy of this state that a defendant charged with a homicide is entitled to a jury instruction on the lesser-included *314 offense of voluntary manslaughter. State v. Meyer, 58 Vt. 457, 465 , 3 A. 195 , 200 (1886); Reporter’s Notes, V.R.Cr.P. 31(c); see 13 V.S.A. § 2310. At the same time, the Legislature has determined that prosecutions for voluntary manslaughter are subject to a three-year statute of limitations. 13 V.S.A. § 4501(d). In the present case, the prosecution for murder was undertaken several years after the statute of limitations had run on the lesser-included offense of voluntary manslaughter. Both the trial court and the majority have decided that, under the circumstances presented by this prosecution, a choice between rights must be made. The trial court concluded that defendant could have the lesser-included-offense instruction, but only if he waived the statute of limitations on the lesser-included crime. The majority overrules this choice in favor of allowing defendant to have the lesser-included-offense instruction, but only if the trial court tells the jury that if they find defendant guilty of the lesser-included offense, he will go free. Otherwise, the majority reasons, the jury will be misled into thinking they may convict on any of the crimes on which they are instructed and expect defendant to be punished, when, in actual fact, a conviction on voluntary manslaughter will result in an acquittal. In my view, the majority’s compromise vitiates both rights, and does so in circumstances where no compromise is necessary. The purpose of giving a lesser-included-offense instruction is to give defendant the full benefit of the reasonable doubt standard. Beck v. Alabama, 447 U.S. 625, 634 (1980). It is based on the concern that “[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v. United States, 412 U.S. 205, 212-13 (1973). As the majority recognizes, giving the lesser-included-offense instruction ensures that the jury will “avoid any incentive to convict the defendant of a greater offense than the one committed.” This underlying purpose does not change when the statute of limitations runs on one of the lesser-included offenses. Thus, if the court tells the jury it must consider the lesser-included offense, but a jury verdict of guilty of that offense will result in his acquittal, the court has effectively eliminated the rationale for giving the instruction in the first place. It may even have invited a conviction on a greater offense than the one committed, exactly the opposite of the result intended by the instruction. See State v. Short, 618 A.2d 316, 322 (N.J. 1993) (telling jury that defendant would go free if convicted of lesser-included offense of manslaughter all but invited *315 jury to disregard manslaughter instruction). If defendant chooses not to run this risk, he is forced to forego his right to a lesser-included-offense instruction, and the effect of the statute of limitations becomes moot. Defendant then finds himself in essentially the same position he was in originally. To implement its scheme, however, the Court has to impliedly hold that defendant’s right to the statute of limitations may be waived. On the contrary, in Vermont, the statute of limitations is not simply an affirmative defense that defendant may waive if he chooses. Section 4503 of Title 13 provides that prosecutions for felonies and misdemeanors commenced after the statute of limitations has run “shall be void.” See In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892-93 (1987) (where Legislature provides time limit for action and consequence for failure to meet it, statutory language is mandatory). As we held recently, “once the statute of limitations in effect at the time of the alleged offense runs out ... a criminal, by grace of the legislature, is granted a right to be free of prosecution . . . .” State v. Petrucelli, 156 Vt. 382, 384 , 592 A.2d 365, 366 (1991). Various policy considerations underlie a criminal statute of limitations. It protects potential defendants from having to defend against charges when the passage of time has obscured basic facts, it encourages law enforcement officials to investigate possible wrongdoing promptly, and it creates a fixed time period following the occurrence of the punishable act in which a person is exposed to criminal prosecution through the power of the state. State v. Burns, 151 Vt. 621 , 623 n.3, 564 A.2d 593 , 594 n.3 (1989). But today’s decision defeats all of these policies, for it provides an avenue by which prosecutors may avoid the statute of limitations on all lesser-included offenses when there is no time limitation, or a greater one, on prosecution for the greater offense. See 13 V.S.A. § 4501 (setting forth limitation periods for crimes). B. Not only do policy considerations argue against the majority’s approach, the application of ordinary rules of statutory construction likewise compels a different result. It is readily apparent that the right to a lesser-included-offense instruction and the right to assert the statute of limitations can be accommodated by a straightforward application of both statutes. The jury may be instructed as to all lesser-included offenses within the charged offense, without mention of whether a lesser-included offense is time-barred. If the jury finds *316 defendant guilty of a time-barred offense, the trial court must acquit, as the Legislature has decreed that no punishment may be imposed for that offense. There is no conflict in the express provisions of the statutes involved here such that the Court is obliged to harmonize their application in the circumstances of this case. There is no language in the lesser-included-offense statute to suggest it should not be given if the offense is time-barred, and there is no language in the limitations statute that remotely suggests it does not operate when applied to a lesser-included offense. Unless and until the Legislature changes the operation of these statutes as applied to the circumstances now before the Court, we are bound to apply them as written. See State v. Wilcox, 160 Vt. 271, 275 , 628 A.2d 924, 926 (1993) (where meaning of statute is plain on its face, statute must be enforced according to its express terms). II. The majority’s rationale for the creation of its special rule on time-barred lesser-included offenses is based on the policy grounds set forth in the United States Supreme Court’s decision in Spaziano v. Florida, 468 U.S. 447 (1984). The Court held, in factual circumstances similar to this case, that the due process clause does not require that a lesser-included-offense instruction be given if the lesser-included crime is time-barred. Id. at 455 . It reasoned that giving such an instruction distorts the fact-finding process because the jury is “tricked into believing that it has a choice of crimes for which to find defendant guilty, [when] in reality there is no choice.” Id. at 456 . But see Short, 618 A.2d at 323-24 (rejecting Spaziano and holding that defendant is entitled to instruction on all lesser-included offenses, even if time-barred, and without mention of consequences); State v. Muentner, 406 N.W.2d 415, 421, 422-23 (Wis. 1987) (same). Whether or not one agrees with the proposition that these rights are not constitutionally compelled, Spaziano is inapposite to this case because the right to an instruction on lesser-included offenses in Vermont derives from statute, rule, and common law, not the due process clause. Moreover, essential to the Spaziano analysis is the assumption that the statute of limitations on crimes is waivable as a matter of state law, 468 U.S. at 454-57 , whereas in Vermont, such is not the case. To the question of whether the straightforward implementation of Vermont law works a fraud upon the jury, the answer is clearly no, *317 when reviewed in light of the historical role of the jury in Vermont. We have long held that a criminal jury determines only guilt or innocence, a determination made independently of punishment concerns. In State v. Lapan, 101 Vt. 124, 142 , 141 A. 686, 695 (1928), we held that a trial court properly refused a jury’s request to be informed of the penalty of the lesser-included offense of manslaughter. “Inasmuch as the court alone was to fix the penalty within the terms of the statute, the jury were correctly instructed that they had nothing to do with the penalty and that it should not enter into their consideration or discussion.” Id. at 142-43 , 141 A. at 695 (citation omitted); see also State v. Smith, 136 Vt. 520, 526 , 396 A.2d 126, 129 (1978) (“disposition after verdict is for the court, and is not to be charged to the jury”); State v. Goyet, 120 Vt. 12, 52 , 132 A.2d 623, 649 (1957) (punishment is not jury’s consideration; jury should consider only facts in determining whether defendant committed first- or second-degree murder). * Thus, the jury’s sole function is to determine which crime, if any, was committed, a determination that must be based on an analysis of the elements of each crime and the evidence presented. Whether or not the statute of limitations has run on one of the lesser-included offenses has no bearing on this question. But if the jury is told that defendant will go unpunished if convicted of the lesser-included offense, the focus of the fact-finding process would probably shift from a consideration of which crime defendant may have committed to the crimes for which defendant may actually be punished. Giving the jury information that is irrelevant to a determination of guilt or innocence, yet gives the jury the power to punish, distorts the fact-finding process more than withholding information on the statute of limitations. As the New Jersey Supreme Court stated in Short : The trial court’s task is to let the jurors know what they need to know in order to make a fair decision on criminal liability in accordance with applicable law, not to give them whatever information they might want in order to assure the imposition of *318 criminal punishment. . . . [T]he successful completion of that task by a trial court constitutes neither “trickery” nor “deception” but a job well done. 618 A.2d at 324 . The majority also reasons that withholding information on the statute of limitations implies a distrust of the jury’s ability to follow instructions. Our system of justice relies on the presumption that juries will follow instructions, but “we have recognized that in some circumstances ‘the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.’” Simmons v. South Carolina, — U.S. —, —, 114 S. Ct. 2187, 2197 (1994) (plurality) (quoting Bruton v. United States, 391 U.S. 123, 135 (1968)). Thus, to ensure a fair trial, courts often keep relevant evidence and other information from juries. See, e.g., V.R.E. 403 (permitting trial court to exclude relevant evidence if prejudicial effect outweighs probative value); Herald Ass’n v. Ellison, 138 Vt. 529, 542-43 , 419 A.2d 323, 331 (1980) (Hill, J., concurring and dissenting) (discussing protective measures available to trial judge to prevent undue influence on jury, including sequestration). I freely acknowledge that the jury would probably be displeased to learn that defendant, convicted of the time-barred offense of voluntary manslaughter, would go unpunished for the crime. But I also suspect that the original jury that convicted defendant may not agree with this Court that defendant’s conviction should be overturned on a point of law. The rules governing criminal trials are not designed to ensure the jury’s happiness with its role in the judicial process. Nor are juries convened to ensure that defendants will be punished. Rather, the rules are designed to determine what offense a defendant has committed, based on the evidence, by a “tribunal free of prejudice, passion, excitement, and tyrannical power.” Chambers v. Florida, 309 U.S. 227, 237 (1940). To be sure, a result that diminishes a jury’s sense of purpose is, all else being equal, an undesirable one. But all else is not equal in this case. In the long run, we best ensure public confidence in the integrity of the judicial system by adhering to fair rules of procedure applied even-handedly to all defendants. In this case, I believe that the scheme adopted by the majority departs from that course, and I therefore respectfully dissent from the Court’s instruction on remand. Justice Dooley joins in this concurrence. The majority does not expressly overrule these cases; it merely sweeps aside fifty years of precedent by stating that the rules set forth therein “would not apply in a situation where the jury was misled or the defendant prejudiced by remarks indicating what might happen to the defendant if it reached a particular verdict.” The majority cites State v. Percy, 146 Vt. 475 , 507 A.2d 955 (1986), for support. The only proposition for which Percy stands is that a curative instruction must be given to the jury if an attorney affirmatively misinforms the jury as to disposition after sentence and the defendant is thereby prejudiced. Id. at 479 , 507 A.2d at 957 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647066. Public record. Not legal advice.