State v. Washington (93-410); 164 Vt 609; 669 A.2d 550 [Filed 24-Oct-1995] SUPREME COURT DOCKET NO. 93-410 MAY TERM, 1995 State of Vermont } APPEALED FROM: } } v. } District Court of Vermont, } Unit No. 2, Chittenden Circuit } Jerome Washington } } DOCKET NO. 1909.10.11-5-92CnCr In the above-entitled cause, the Clerk will enter: Defendant appeals his jury conviction of murder in the first degree, attempted murder, aggravated assault, and his sentence of life imprisonment. Defendant raises four points: (1) that the trial court violated his right to confrontation; and that the trial court erred by (2) preventing cross-examination of the State's key witness with character evidence, (3) preventing defendant from arguing in closing that inferences favorable to defendant could be drawn from the prosecutor's failure to produce evidence that defendant was involved in drug dealing, and (4) finding at sentencing that the evidence supported two aggravating factors under 13 V.S.A. §2303. We affirm. On May 22, 1992, defendant, his brother Jacob Washington, Chance Marden, and others were subjects of search warrants executed by the Burlington Police Department. During the search, the police seized drugs, drug paraphernalia, and guns at defendant's apartment which he shared with his brother Jacob. As a result of the investigation and searches, Jacob Washington was arraigned and held in custody on federal charges. Defendant, Marden, and others were issued citations to appear in state court. Defendant was cited for distribution of cocaine. On the night of May 23, 1992, Chance Marden, his girlfriend Melissa Wells, and his roommate Matthew Petrie were eating a late dinner at Marden's apartment. Marden was the principle witness at trial and described what happened in the apartment. According to Marden, defendant arrived at approximately 9:00 P.M. and stayed for about an hour. During this time, defendant's conversation with Marden included various topics, including whether Marden had been the police informant that lead to the search warrants. Sometime during this conversation, Marden moved to take his dishes into the kitchen when he heard a "pop" and a scream from Melissa. Melissa Wells had been shot in the head. Marden then saw defendant about five feet away with a gun pointed at Marden's forehead. Marden fell backwards and defendant fired the gun twice, hitting Marden in the forearm. Defendant next shot the gun into the other side of Wells's head, and then fired the remaining three shots into Petrie. Marden smashed through his bedroom window, jumped outside, ran to find help, and called 911. Meanwhile, defendant left the house and rode away on his bicycle. The police apprehended defendant after a short chase. Melissa Wells died from her injuries. Matthew Petrie suffered gunshot wounds to his head, face, neck, and left forearm. About that night, Petrie recalled only that he was in the room with Marden, Wells, and defendant. The State's theory at trial was that defendant believed Marden had given the police evidence against defendant's brother Jacob, and that defendant went to Marden's apartment to murder him. The defense contended that Marden was actually covering up for a more influential member of their drug ring by falsely accusing defendant of the murder. I. Defendant's first contention on appeal is that the trial court erred when it denied admission of a videotape of Marden's deposition. According to defendant, Marden's testimony at trial was overly emotional, whereas at the deposition he was "as cool as a cucumber" when describing the murder. Defendant claimed that the difference in Marden's demeanor would be probative of Marden's credibility as a witness, and that the jury should have been allowed to see it. The trial court denied the motion, stating that Marden's testimony at trial was not emotional, and that viewing the videotape might confuse the jury. Defendant now claims that this ruling violated defendant's constitutional right to confrontation. According to defendant, the trial court's ruling had an unfair prejudicial effect on the jury's deliberations because they were deprived of crucial demeanor evidence. The initial question in examining a confrontation clause claim is whether defendant was prohibited from engaging in otherwise appropriate cross-examination. State v. French, 152 Vt. 72, 79, 564 A.2d 1058, 1062 (1989). Cross-examination may be limited. "The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish." State v. Raymond, 148 Vt. 617, 620-21, 538 A.2d 164, 166 (1987). Additionally, the trial court retains a wide degree of discretion to impose reasonable limits on cross-examination when there is a risk of "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. Such traditional trial judge discretion does not offend constitutional guarantees such as the confrontation clause. State v. Larosse, 150 Vt. 363, 370, 554 A.2d 227, 232 (1988). We limit our review to whether the trial court abused its discretion. State v. Houle, ___ Vt. ___, ___, 642 A.2d 1178, 1179 (1994). Defendant was given an opportunity to cross-examine Marden, and allowed to ask Marden about his change in demeanor. Defendant, however, chose not to pursue that line of questioning. Rather, defendant contends that the trial court denied his right to confront Marden by refusing to admit the videotape. Relevant evidence may be excluded, however, if its possible prejudicial effect outweighs its probative value. V.R.E. 403. Defendant also contends that the trial court abused its discretion by not viewing the videotaped deposition before ruling on its admissibility. The videotape's relevance, however, hinged on whether Marden's testimony at trial was overly emotional. After hearing why defendant wanted the tape admitted, the trial court ruled that the danger of unfair prejudice outweighed the probative value of the videotape because the court saw little emotion in Marden's trial testimony, and viewing the videotape might confuse the jury. We find no abuse of discretion. II. Defendant next contends that, under V.R.E. 608(b), the trial court should have allowed introduction of a photograph of Marden with a gun and drugs and permitted the defendant to cross-examine Marden about his alleged sexual encounter with another woman named Melissa shortly after the murder. Defendant claims that both pieces of evidence should have been admitted because they directly relate to Marden's credibility as a witness. According to defendant, the jury was entitled to know that Marden had been involved with guns and drugs and they should have been able to weigh his testimony against such evidence. Additionally, defendant claimed that they had a recording of Marden boasting about a sexual encounter Marden had with another woman named Melissa shortly after the murder and that this evidence indicated that Marden really did not have the deep feelings for Melissa as claimed by the State. Hence, defendant wanted to cross-examine Marden about the alleged encounter because it would show that Marden might be likely to lie about the facts of the murder. The photograph of Marden with a gun and drugs was properly prohibited. V.R.E. 608(b) states that evidence pertaining to a witness's past conduct relating to the witness's truthfulness cannot be proven by the admission of extrinsic evidence. Such past conduct may be raised in cross-examination, however, upon the discretionary finding of the trial court that such an inquiry would be more probative than prejudicial. See State v. Goodrich, 151 Vt. 367, 376 (1989) (even "wide latitude of permissible cross-examination of expert witnesses is qualified by V.R.E. 403"). Here, the photograph was properly excluded because it was extrinsic evidence. V.R.E. 608(b). The trial court did not prohibit defendant from asking Marden whether he had been involved in past instances involving guns and drugs. The trial court also did not err by prohibiting defendant from asking Marden about sexual encounters. Defendant argues, however, that if the State could use Marden's close relationship with Wells to boost Marden's credibility, then evidence that their relationship was not as close as the State suggested would tend to weaken Marden's credibility. Marden's relationships with other women following the murder has negligible bearing on his credibility as a witness, especially in light of the court's ruling forbidding the State from implying that Marden's relationship with Wells guaranteed his truthfulness. Again, there was no abuse of discretion. See Houle, ___ Vt. at ___, 642 A.2d at 1179. III. Defendant was not permitted to argue in closing that the State's failure to introduce evidence directly linking defendant to the alleged drug conspiracy meant that such evidence did not exist. Before trial, defendant had moved to exclude evidence of defendant's prior distribution of narcotics. The trial court granted the motion in part, limiting the State's presentation of evidence to the existence of a drug conspiracy, and to defendant's involvement within that enterprise as it related to his motive of retaliation. During trial, the court specifically instructed the State on numerous occasions to keep their evidence of the drug conspiracy to a bare minimum, in compliance with defendant's objection. The State complied with these requests and only introduced enough evidence at trial to make a basic sketch of the drug conspiracy and defendant's role in the transactions. In closing, defendant wanted to argue that since the State's evidence concerning defendant's involvement in the drug conspiracy was lacking, the jury could then infer that defendant was actually not involved in the drug conspiracy and hence did not have a motive to kill Marden. By successfully keeping evidence of his drug activities away from the jury, defendant effectively barred his own use of any negative inferences that might be drawn from the lack of such evidence. Defendant was properly not allowed to take advantage of a trial posture of his own making. Cf. Woodmansee v. Stoneman, 133 Vt. 449, 458, 344 A.2d 26, 31 (1975) (unfair to allow State to attack the credibility of doctor's diagnosis on basis that he examined patient only once where court limited doctor's testimony to single examination even though doctor had treated patient on previous occasions.). IV. Defendant's final claim of error is that at sentencing the trial court abused its discretion by finding that defendant committed a predatory killing. 13 V.S.A. §2303(d)(7). He claims that Melissa Wells's murder could not have been a predatory murder because she was a mere bystander caught in the fray. Section 2303(a) provides that a trial court may impose a penalty of life imprisonment for a party convicted of first degree murder if it is found that the aggravating factors outweigh any mitigating factors. Subsection (d) lists the aggravating factors, the relevant portions of which are (d)(3) (murder committed while engaged in the commission of a felony), and (d)(7) (murder was random, predatory or arbitrary in nature). Subsection (e) lists the mitigating factors, the only relevant portion being (e)(1) (defendant has no significant history of prior criminal activity). While the only mitigating factor was that defendant had no significant history of prior criminal activity, 13 V.S.A. §2303(e)(1), there where a number of aggravating factors. First, the murder was committed while engaged in the commission of the felonies of attempted murder and aggravated assault. 13 V.S.A. §2303(d)(3). Second, the trial court found that the murder was perfunctory, dispassionate, pitiless, cold blooded, and predatory. 13 V.S.A. §2303(d)(7). Predatory is defined as, "Marked by a tendency to victimize or destroy others for one's own benefit". Webster's II New Riverside Dictionary 926 (1984). According to the trial court, the murder was predatory because it appeared that defendant killed Melissa Wells because she was a witness of his attempted murder of Marden. Affirmed. BY THE COURT: ________________________________________ Frederic W. Allen, Chief Justice ________________________________________ Ernest W. Gibson III, Associate Justice ________________________________________ John A. Dooley, Associate Justice ________________________________________ James L. Morse, Associate Justice ________________________________________ Denise R. Johnson, Associate Justice [ ] Publish [ ] Do Not Publish