Motion for Reargument Denied December 31, 2013
Reconsideration Denied January 22, 2014
[Copyrighted Material Omitted]
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Washington Unit, Criminal Division. 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 3/4 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 ...