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State v. Shores

Supreme Court of Vermont

May 4, 2017

State of Vermont
Peggy L. Shores

         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 ...

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