APPEALED
FROM: Superior Court, Rutland Unit, Criminal Division DOCKET
NO. 235-2-17 Rdcr, David R. Fenster, Trial Judge
ENTRY ORDER
In the
above-entitled cause, the Clerk will enter:
¶
1. Defendant appeals the trial court's March 31, 2017
decision to deny bail pursuant to 13 V.S.A. § 7553. We
affirm.
¶
2. On February 23, 2017, the State charged defendant with
second degree murder in violation of 13 V.S.A. § 2301.
Defendant was arraigned on that date and pleaded not guilty
to the charge. The State moved to hold defendant without
bail. The trial court scheduled a weight of evidence hearing
to determine whether to grant the State's motion pursuant
to 13 V.S.A. § 7553. The evidence presented at the
weight of evidence hearing on March 29 included the
following.
¶
3. On December 11, 2016, while at home, defendant's
husband died from a single gunshot wound to his chest. At the
time he died, he and defendant were the only people in the
home. After the gunshot, defendant called 911 to report the
incident. Defendant said that her husband had started walking
up the basement stairs with a pistol in his hand when he fell
and the gun discharged, shooting him in the chest. She told
the operator that she did not think the gun was loaded when
she saw him carrying it up the stairs. Later that night, she
told the police again that her husband shot himself when he
fell walking up the stairs, but that she did know the gun was
loaded. She also indicated that her husband's finger was
not on or near the trigger when he held the gun.
¶
4. After examining the body, the State's medical examiner
concluded that there was no fouling or stippling around the
wound, which indicated that this was a "distant gunshot
wound, " and that there was no indication that the
decedent had fallen prior to his death. The medical examiner
also concluded that the bullet had entered the decedent's
left side, about ten inches from the top of his head, and
traveled at a downward trajectory to exit his back about six
inches lower than the entrance wound.
¶
5. The State's forensic examiner analyzed the firearm
found next to the decedent's body and the shirt that he
was wearing when he died. The forensic examiner determined
that the gun and its safety features were functioning
properly and that the gun could not be discharged without
pulling the trigger. A microscopic examination of the shirt
revealed no gunshot residue, leading the examiner to conclude
that the shirt was beyond the maximum distance at which the
gun would have left residue when it was discharged. After
conducting tests on the gun, the examiner concluded that it
would have left residue on a target if the gun was fewer than
forty-eight inches away from the target. The medical examiner
found that the length of the decedent's arm was
thirty-five inches, and a police officer determined that the
length of the gun was approximately eight inches. The officer
therefore concluded that the maximum range the decedent could
have shot himself from was about twenty-seven inches, meaning
that it would be expected that gunshot residue would have
been on his clothes if he had done so.
¶
6. The police performed a trajectory reconstruction at
defendant's home to determine the possible positions the
decedent could have been in when he was shot and the possible
angles from which he could have been shot. The police created
a wooden representation of the decedent and then attempted to
line up the entrance and exit wounds with the spot where the
bullet was found lodged in the basement wall. The police
concluded from this reconstruction that it was most likely
that the decedent was standing either on the basement floor
or on the first step when he was shot, less likely that he
was on the second, third, or fourth steps, and that it was
likely that the gun was fired from the top of the stairs.
¶
7. Upon reviewing this evidence, the trial court concluded
that defendant's version of the facts did not match the
State's physical evidence, that the decedent could not
have shot himself, and that he must have been shot by someone
else. The court also concluded that there was no evidence
that the shooting occurred in the heat of passion or in
self-defense. Accordingly, the court concluded that, after
taking the evidence in the light most favorable to the State,
the State had met its burden of showing that the evidence of
defendant's guilt was great and therefore she was
eligible to be held without bail.
¶
8. After concluding that the evidence of guilt was great, the
court offered defendant an opportunity to show that she
should be released on bail anyway. The court heard testimony
from the decedent's mother, defendant's
mother-in-law, who testified that she was willing to be
defendant's custodian if defendant was released on bail.
The mother-in-law testified that another son and grandson
lived with her. She stated that she was not employed and was
able to supervise defendant at all times in accordance with
defendant's conditions of release. She said that her
grandson was currently on probation for a sex offense and
that she was responsible for taking him to appointments
associated with his probation.
¶
9. Next, the decedent's brother, who lives with
defendant's mother-in-law, testified that he would help
to supervise defendant. On cross examination, the prosecution
established that the decedent's brother had previously
been convicted of two felonies—one for sexual assault
in 1993, and one for violating an abuse prevention order in
2008.
¶
10. The defense also called as a witness defendant's
brother, who testified that he was willing to be
defendant's custodian. He testified that he lives with
his wife and daughter, and that defendant would be supervised
by at all times by one of the adults, but his wife and
daughter did not take the stand to agree to that
responsibility. The prosecution called as a witness a
detective who testified that defendant's brother had
multiple felonies and misdemeanors on his criminal record;
the most recent conviction was from 1989. The prosecution
also established that the brother's wife had been
convicted of DWI once, and his daughter had been convicted of
DWI twice.
¶
11. Defense counsel pointed out that defendant has no record
of failing to appear in court or of violating probation
conditions. Counsel argued that defendant was a lifelong
resident of Vermont and was not at risk of flight.
Accordingly, counsel requested the court set bail at $25, 000
and impose conditions that included a twenty-four-hour curfew
with limited exceptions, a prohibition on the possession of
firearms, and restrictions on alcohol.
¶
12. The State called as a witness a detective who testified
that the police found thirteen one-gallon bags of marijuana
in defendant's home. The State also called
defendant's son-in-law as a witness, who testified that
he had borrowed large sums of cash from the decedent several
times, and that the decedent apparently kept ...