On Appeal from Superior Court, Washington Unit, Criminal Division October Term, 2013.
Howard E. Van Benthuysen, J. (motion for mistrial); Michael S. Kupersmith, J. (final judgment) William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Crawford, Supr. J., Specially Assigned
¶ 1. Defendant Edward Johnson appeals his convictions for attempted aggravated murder, kidnapping, lewd and lascivious conduct, unlawful trespass, and enhancement under Vermont’s habitual offender statute, following a jury trial held in the Washington Superior Court. On appeal, he argues that 1) the trial court committed reversible error in refusing to grant a mistrial when a member of the jury pool mentioned, in front of prospective jurors, that defendant had another case, and 2) that the evidence was insufficient to prove defendant’s identity as the perpetrator and that he had the requisite intent to kill. For the reasons that follow, we affirm defendant’s convictions.
¶ 2. The procedural history is as follows. Defendant was charged under multiple Vermont criminal statutes for entering the victim’s home, forcing her to participate in sexual acts, restraining her by tying her hands and feet, strangling her, and then attempting to kill her by stabbing her in the neck.
¶ 3. During the jury draw, when members of the jury panel were asked if they knew anything about the case, one member stated, “Yes, what I read about this case and a prior one of this gentleman.” Upon further inquiry, the potential juror stated, “[T]his case I would be fine with. I just — I just know of his other case, so it makes me weary of this case.”  Defendant subsequently moved for a mistrial on the basis that the potential juror’s comments had “infected the whole panel.”
¶ 4. The court denied the motion for mistrial. It discussed the possibility of a cautionary instruction that the jury not give consideration to the reference to some other event involving defendant, and to remind the jurors they would not know whether the other case was in civil, traffic, family or criminal court. Defendant declined the limiting instruction on the grounds that it would unduly emphasize the juror’s comment by giving “credence to whatever it was coming out of [the juror’s] mouth.” Accordingly, the court did not give the jury the specific proposed instruction. It did, however, instruct the following: “Remember that your duty as judges of the facts is to decide this case based on the evidence that comes to you during the trial and during the trial only, the sworn testimony and the exhibits which are admitted.”
¶ 5. A four-day trial commenced on April 16, 2012. Defendant’s former girlfriend was living at the victim’s house, along with the victim’s son. The ex-girlfriend and the victim’s son both testified that they had encountered defendant at the victim’s apartment before the incident.
¶ 6. According to the ex-girlfriend’s testimony, on the afternoon of the incident, the ex-girlfriend, the victim’s son and the son’s daughter walked to the Burger King in Barre, leaving the victim alone in the apartment. Defendant approached the ex-girlfriend in his car and asked her when she would be coming to his place to get her belongings. At the time, he was wearing a black and gray South Pole hoodie. The ex-girlfriend did not respond, and defendant drove away.  When the three of them returned to the apartment, the door was locked. After checking a nearby store to see if the victim was buying cigarettes, they saw an ambulance go by. They went back to the apartment and found the victim sitting in the kitchen, holding a sweatshirt to her neck and being attended by EMTs.
¶ 7. The victim testified that she was laying down on her bed when a black man wearing jeans and a black hoodie entered her room, jumped on her, sucked on her breast, and instructed her to take off her clothes. He tried to have sex with her but did not have an erection. He then asked her to give him oral sex, at which point the victim’s son knocked on the door. The man “panicked, ” searched for a way to leave the apartment, and, when unsuccessful, tied the victim’s hands and legs with clothing and began strangling her. The victim, however, was able to remove the restraints. When she turned around, the man had a knife with a blade six or seven inches long, and stabbed her in the neck. When she asked him why he had done that, he apologized and stabbed her a second time in the neck, this time twisting the knife. He then left, stating that he would be back “to finish the job.” The victim called an ambulance and used a piece of cloth to cover the wound. The victim was unable to identify the perpetrator at the scene. She stated at the time that she did not believe the perpetrator could be defendant, because she believed that the man who attacked her was in his twenties.
¶ 8. Among other witnesses present at the scene, the EMT testified that he responded to the victim’s call and transported her to the hospital. He described the victim’s neck wound, which was about two inches long, three-quarters of an inch at its widest, and exposed her trachea. The wound ultimately required ten stitches. A neighbor also testified, stating that he had seen a man come out of the victim’s house after the incident. The neighbor had also seen the man trying to open the door to the house several weeks before. The neighbor unequivocally identified defendant as the man in a photographic line-up.
¶ 9. A detective with the Barre City Police Department spoke with defendant. The detective asked defendant if he knew why he was being questioned, and he answered that he had heard there was a rape in Barre. Defendant stated that on the afternoon in question, he went to a beverage store and a grocery store, and then stayed at his friend’s house in Montpelier until 10 p.m., after which he returned home. Defendant claimed that he had used a debit card and taken out cash from the bank in order to pay for his purchases. However, an employee of defendant’s bank confirmed that defendant did not withdraw cash or make a purchase at the grocery store that day. Additionally, the friend defendant claimed to have visited in Montpelier testified that defendant asked her to lie for him if she was ...