On Appeal from Superior Court, Rutland Unit, Criminal Division June Term, 2012 Thomas A. Zonay, J.
The opinion of the court was delivered by: Robinson, J.
PRESENT: Reiber, C.J., Dooley, Burgess and Robinson, JJ., and Kupersmith, Supr. J., Specially Assigned
¶ 1. Defendant was convicted of second-degree murder following a jury trial. He appeals that conviction on three grounds: (1) the trial court improperly denied his motion for a new trial based on a newly discovered witness corroborating defendant's self-defense claim; (2) the trial court erred by failing to dismiss two jurors for cause; and (3) the jury instructions on diminished capacity failed to inform the jury it must acquit defendant of second-degree murder if defendant could not form the specific intent for that offense due to diminished capacity. We affirm.
¶ 2. At trial, defendant testified that his feud with the victim originally began with his sale of forty dollars' worth of heroin to the victim. The victim did not pay for the drugs at that time, but said that he would pay defendant back later. After a few days without payment, defendant became irritated and angry and began calling the victim at his home. The victim's father testified that on October 28, 2007, defendant called for the victim multiple times, screaming vulgarities and threatening the victim's family. The victim's father reported the phone calls to the Castleton police, and an officer came to the victim's home; when defendant called back, the father handed the officer the phone, and the police officer spoke with defendant. Defendant did not call the victim's family again after that.
¶ 3. Defendant testified that on November 1, 2007, he smoked crack at a friend's house and then went to Walmart in the afternoon. That same afternoon, the victim drove with his friend and boss to TD BankNorth, near the Rutland Walmart, in this friend's pickup truck. Defendant and the victim saw each other when the victim was near the bank's drive-through window, and they began speaking. Although defendant and other witnesses offered divergent testimony about who said what, all agree that defendant and the victim began having a heated conversation. According to the friend, defendant said, "Let's go over here behind Walmart and we'll settle this right now, bitch. Your father's not here to call the cops on me this time." Defendant testified that the victim asked him to go behind the Walmart.
¶ 4. Defendant and the victim then went behind the Walmart, with defendant in front and the victim following. The friend testified that he followed in his truck, stopping sixty to seventy yards from defendant and the victim. The friend testified that he watched defendant and the victim argue until a tractor-trailer blocked his view. The driver of that tractor-trailer testified that the victim and defendant's altercation took place directly in front of his truck, about fifteen feet away. The driver saw the victim throw the first punch, and then saw what looked like defendant punching the victim in the neck. In fact, defendant had a knife in his hand and slashed the victim's neck, cutting through his larnyx, carotid artery, jugular vein, and esophagus.
¶ 5. The victim, bleeding profusely, ran from the site of the slashing, around the passenger side of the tractor-trailer, and towards the friend's truck. The friend testified that he saw the victim running towards his truck, about fifteen feet in front of him. The friend got out of his truck, ran to the victim, and applied pressure to the wound, but the victim died within minutes. Defendant fled the scene, but police soon found and arrested him.
¶ 6. The State charged defendant with second-degree murder. Defendant did not deny slashing the victim but consistently maintained that the victim came at him with a pipe and that he acted in self defense. None of the other witnesses at trial saw a pipe or other weapon in the victim's hand during the altercation. The police never found a pipe at the scene or in the friend's truck. The friend testified that he did not have any pipes in his truck, only a metal stud eight feet or longer.
¶ 7. Alternatively, defendant argued that his voluntary cocaine intoxication should mitigate the offense from second-degree murder to voluntary manslaughter on the ground of diminished capacity. The jury convicted defendant of second-degree murder, and the court sentenced him to thirty-five years to life. An automatic notice of appeal was entered.
¶ 8. In April 2010, four months after defendant's conviction and a month after his sentencing, a new witness contacted defendant's mother, then defense counsel. This new witness said she was in the Walmart parking lot on November 1, 2007, witnessed part of the altercation between defendant and the victim, and saw the victim holding an object she thought was a pipe. Defendant filed a motion for a new trial based on newly discovered evidence. Following a hearing, the trial court found that the new witness was not credible, and denied defendant's motion for a new trial. Defendant appealed.
¶ 9. First, we consider defendant's argument that the trial court erred by denying defendant's motion for a new trial based on the testimony of the newly discovered witness. "Motions for new trial on the ground of newly discovered evidence are not favored by the courts and are viewed with great caution; courts are properly reluctant to grant a second trial once a defendant has had his or her day in court and been fairly tried." State v. Schreiner, 2007 VT 138, ¶ 26, 183 Vt. 42, 944 A.2d 250. To succeed on a motion for a new trial based on newly discovered evidence, defendant must prove each of the following elements: (1) new evidence would probably change the result on retrial; (2) the evidence was discovered only subsequent to trial; (3) the evidence could not have been discovered earlier through the exercise of due diligence; (4) the evidence is material; and (5) the evidence is not merely cumulative or impeaching. Id. In this case, the trial court determined that the new witness's testimony satisfied elements (2) through (5) of the above test, and the State does not contest those findings here. Accordingly, defendant's appeal focuses solely on the trial court's conclusion that the new witness's testimony would probably not change the outcome upon retrial.
¶ 10. In assessing whether newly discovered evidence would probably lead to a different result upon retrial, the trial court must evaluate the quality of the evidence presented. See State v. Miller, 151 Vt. 337, 339, 560 A.2d 376, 377 (1989). Defendant must show that the new evidence would "likely lead to an acquittal of the defendant on retrial." State v. Charbonneau, 2011 VT 57, ¶ 17, 190 Vt. 81, 25 A.3d 553; see Reporter's Notes, V.R.Cr.P. 33 ("Both the Vermont and federal cases hold that to permit grant of a new trial, the new evidence . . . must appear likely to bring about an acquittal on a retrial.").
¶ 11. At the new trial motion hearing on December 9, 2010, the new witness testified to the following facts. On November 1, 2007, she parked in the Walmart lot to walk her dog nearby. As she returned to her car with her dog, she saw two men coming towards her, later identified as defendant and the victim. The man who was following behind carried a three or four-foot long silver object, which looked like a pipe and glinted in the sun like metal. The two came together near the lawn and garden section by the side of the Walmart. She saw the man who had been behind raise the pipe-like object and swing down at the other person, but she did not see it connect. A Walmart truck blocked her view as she drove out of the parking lot. Seconds later, as she was driving, she heard a sound "like metal hitting concrete." Through her rearview mirror, she then saw a dark-colored pickup truck pull up and a man throw the object in the back of that truck. She then drove away and did not see the rest of the incident.
¶ 12. The new witness left the scene on November 1 because she was driving without a valid driver's license and did not want to deal with the police. After she figured out that the two men she had seen were defendant and the victim, she did not report what she saw to the police because she figured there were lots of people downtown and there had to be more than enough witnesses. She also did not want to get involved as a witness because she was afraid of the families involved. After the trial, she told her counselor what she had seen, and her counselor encouraged her to tell somebody. She then contacted defendant's mother who referred her to defense counsel. She did not ever speak to defendant about the matter.
¶ 13. At the time of the incident, she was employed taking care of an elderly patient at the patient's home. She took Suboxone to suppress opioid cravings, but had not taken street drugs since February 2006. She has a history of anxiety, Posttraumatic Stress Disorder, depression, Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, addiction to prescription medication, and was taking medication for anxiety at the time of the hearing. She had once been hospitalized for her mental health issues.
¶ 14. In its ruling on the new trial motion, the trial court found that the new witness's testimony would be admissible at trial but did not find the testimony credible. The court cited her delay in reporting her purported observations, her mental health and substance abuse issues, the inconsistencies in her testimony, and the court's opportunity at the hearing to observe the witness's demeanor, mannerisms, and tone of voice, and to examine the quality of her testimony as a whole. Responding to defendant's assertion that the new witness had no motive to testify falsely, the court acknowledged that it could not with certainty ascribe a specific reason for her to testify falsely, but suggested that she might have been attempting to assist defendant or that her mental health and/or substance abuse issues might have resulted in her interjecting herself into the case.
¶ 15. The trial court further concluded that even if the new witness's testimony was credible, weighed against the State's evidence, it still would probably not bring about a different result. Although the testimony does undercut a significant aspect of the State's case--namely, that the victim was unarmed and therefore defendant did not act in self-defense--no other witness saw an object in the victim's hand during the altercation, no such item was found by the police at the scene, nor did any other witness see anyone pick up an item and throw it into the back of a truck. In fact, the new witness's testimony was even inconsistent with defendant's own account of how he was attacked. Accordingly, the trial court concluded that the remaining testimony at trial weighed heavily against a finding that her testimony would probably change the result on retrial.
¶ 16. We review the trial court's ruling on the new trial motion for abuse of discretion, and will not overturn the trial court's decision unless the court abused or withheld its discretion. Charbonneau, 2011 VT 57, ¶ 16; Miller, 151 Vt. at 339, 560 A.2d at 377. Moreover, we recognize that "[a] trial court's assessment of the credibility of both a witness who offers newly discovered testimony and the testimony itself is simply part of the evaluation of the quality of the evidence" that the trial court must undertake in a motion for a new trial based on newly discovered evidence. Id. ¶ 18. See also State v. Young, 2010 VT 97, ¶ 23, 189 Vt. 37, 12 A.3d 510 ("The trial court is afforded great discretion in making factual findings because it is in the best position to assess the credibility of witnesses and the weight to be given to evidence.").
¶ 17. Given the record in this case, we cannot conclude that the trial court abused its discretion in concluding that the new testimony was not credible, and that, in any event, it would not likely change the outcome of the trial. The trial court specifically cited a host of factors, including the witness's demeanor, mannerisms, and tone of voice, to support its conclusion. Although we do not generally require the trial court to articulate with specificity the reasons underlying its credibility determinations, State v. Hagen, 151 Vt. 64, 65, 557 A.2d 493, 494 (1989), we have recognized that a witness's "demeanor, mannerisms, and tone of voice" as well as "a judge's discretion and experience," are all factors that are relevant to a trial court's credibility determination. Id.
¶ 18. Moreover, weaknesses and inconsistencies in the new witness's testimony also support the trial court's credibility determination. For instance, the trial court could have concluded that the new witness gave inconsistent testimony concerning where precisely the altercation occurred, whether defendant and the victim were running or walking, whether she saw a man pick up an object or just throw an object into the dark-colored pickup truck, and what she was doing when watching the two men. The new witness also stated, "I don't remember every detail that I saw that day . . . I try to forget about this." For all of these reasons, we cannot say that the trial court abused its discretion in concluding that the new witness's testimony was not credible.*fn1
¶ 19. The trial court's decision to deny defendant's motion for a new trial is also supportable by its alternate analysis--that even if the new testimony was credible when considered on its own, it would probably not have changed the outcome when viewed in the context of the evidence overall. See Schreiner, 2007 VT 138, ¶ 29 ("[W]e look at the newly discovered evidence in relation to the State's case against defendant."). As the court noted, "no other witness saw an object in the victim's hand during the altercation, no such item was found by the police at the scene, nor did any other witness see anyone pick up an item and throw it into the back of the truck." The court's conclusion is amply supported by the record. The disinterested truck driver, who was fifteen feet away from the altercation, with an unobstructed view, saw no weapon in the victim's hand. The victim's friend, who saw the victim following defendant to the back of the Walmart parking lot, saw no weapon in the victim's hand. A disinterested witness, who watched defendant and the victim from the time the victim began following defendant toward the back of the Walmart parking lot until after the slashing, saw no weapons in either of their hands. Another disinterested witness who saw defendant and the victim arguing immediately before the slashing did not see a weapon in either person's hand. Police officers searched all around the scene of the incident, and also searched the friend's truck and the victim's father's truck. None found a pipe or other object meeting the new witness's description.
¶ 20. In addition, the trial court could reasonably have concluded that in the context of the other evidence in the case, the new witness's testimony simply did not make sense. Construing the new witness's testimony most favorably to the defendant, she testified that she saw the victim swing a pipe, heard it hit the ground seconds later, and then saw a man pull up in a dark-colored pickup truck, pick up the pipe, and throw the pipe into the back of the truck. Presumably this man was the friend of the victim with whom the victim had come to the bank. However, the trial court could reasonably have concluded that this series of events did not make sense when compared to all of the other witness testimony about where the ...