MOTION FOR A NEW TRIAL
NOW COMES the
defendant, Vito Russo, by and through counsel, Eileen P.
Hongisto, Esq., and respectfully requests this Court to vacate
the jury findings of guilty in the above captioned case and to
order that a new trial be held pursuant to V.R.Cr.P. 33 The
defendant brings forth the following errors, any of which is
sufficient to require a new trial, and if taken together clearly
establish that the defendant’s rights to a fair trial were not
upheld.
The defendant
points to the following as error:
1. The Court
erred in not allowing the Defendant to introduce evidence
regarding Mr. Russo’s mental state just prior to the alleged
incident through the testimony of Amy Stevens. The defense
relied on a diminished capacity defense, which was severely
limited by the court’s ruling regarding Ms. Stevens’s
testimony.
2. The court
erred in denying defendant’s motion for acquittal made at the
conclusion of the evidence. The court found that in the light
most favorable to the State that and excluding modifying
evidence that the evidence introduced by the State was fairly
and reasonably tending to show the defendant’s guilt beyond a
reasonable doubt. Defendant claims that the evidence was
insufficient to prove an essential element of the crime that
defendant had the required mental state. The state failed to
prove specific intent that the defendant had the conscious
object of attempting to cause serious bodily injury to John
McKay. State v. Kennison 149 Vt. 643
3. The Court
erred in refusing to instruct the jury on lesser-included
offenses. The evidence supported the lesser-included offenses of
reckless endangerment and attempted simple assault.
4. The verdict
is contrary to the weight of the evidence. A new trial based on
the weight of the evidence should be granted when the when the
preponderance of the evidence weighs heavily against the guilty
verdict and it would be a grave miscarriage of justice to allow
the verdict to stand. The court may weigh the evidence and
consider the credibility of the witnesses. State v. Ladabouche
146 Vt. 279 (1985), State v Trombly 148 Vt. 293 (1987).
Defendant claims that the guilty verdict is contrary to the
evidence presented by the state and the defense at his trial.
WHEREFORE, for
the above reasons, the defendant, Vito Russo, respectfully
requests this Court to vacate the verdicts of guilty on and
grant him a new trial. DATED at Brattleboro, Vermont this 17th
day of April, 2003. Eileen P. Hongisto, Public Defender for the
Defendant
************************************************************************************************************
MOTION FOR JUDGMENT OF ACQUITTAL
NOW COMES the
defendant, Vito Russo, by and through counsel, Eileen P.
Hongisto, Esq. and respectfully requests this Court to vacate
the jury findings of guilty and enter a judgments of acquittal
on the ground of insufficient evidence pursuant to V.R.Cr. P.
29(c).
On November 17,
2002 Vito Russo was arrested in Brattleboro, Vermont and was
charged with Count 1 Attempted Aggravated Assault in violation
of 13 V.S.A. 1024 (a) (2), Count II Driving Under the Influence
in violation of 23 V.S.A. 1201(a)(2), Count III Unlawful
Trespass in violation of 13 V.S.A. 3705(a)(1) and Count IV
Driving with License Suspended. A jury trial was commenced on
April 3 and April 4, 2003. After deliberation the jury returned
verdicts of guilty to all four counts.
Defendant
argues that the evidence did not fairly and reasonably tend to
support defendant’s guilt beyond a reasonable doubt on Counts
I and III. Specifically, that the evidence was insufficient to
prove that the defendant acted with the required mental intent.
The Court
instructed the jury that in order to find the defendant guilty
they must find that the State proved beyond a reasonable doubt
that Mr. Russo acted with specific intent, to act intentionally
and knowingly with the conscious objective of accomplishing a
certain result.
The test for
granting a Motion for Acquittal is whether taking the evidence
in the light most favorable to the State and excluding modifying
evidence the State has introduced evidence fairly and reasonably
tending to show the defendant’s guilt beyond a reasonable
doubt. State v. Eaton 134 Vt. 205 (1976), State v. Dezaine 141
Vt. 335 (1982), State v. Onorato 142 Vt. 99 (1982) State v.
Pirier 142 Vt. 595 (1983), State v. Bristol 143 Vt. 245 (1983),
State v. Robillard 146 Vt. 623 (1986), State v. Robar 157 Vt.
387 (1991), State. Durenleau 163 Vt. 8 (1994) and State v. Cate
165 Vt. 404 (1996).
Furthermore,
the evidence must be examined both for its quality and strength
and must add up to more than mere suspicion. State v.
Partlow 143 Vt. 33 (1983), State v. Robar 157 Vt. 387
(1991) and State v. Durenleau 163 Vt. 8 (1994).
The State did
not produce proper and sufficient evidence to prove beyond a
reasonable doubt that Mr. Russo had the specific intent to cause
bodily injury to John McKay. In fact, the State’s evidence
proved beyond a reasonable doubt that the defendant was clearly
intoxicated. Thus, negating the required mental intent.
WHEREFORE, the defendant moves the Court for judgments of
acquittal of the offenses of
attempted aggravated assault and unlawful trespass on the
grounds that the evidence is insufficient to sustain a
conviction of such offenses. DATED at Brattleboro, Vermont his
17th day of April, 2003. Eileen P. Hongisto, Esq.
***************************************************************************
VT
SUPREME
COURT ORAL ARGUMENT
STATE
V RUSSO
Appealed from:
Windham County District Court
STATE OF
VERMONT,
DOCKET NO. 1619-11-02 Wmcr
SUPREME COURT
DOCKET NO. 2003-348
(Judges for the full panel: Hinton
for defendant Russo: Woodruff for the State of VT.)
HINTON: There are mainly two issues
present. The right to prepare a defense was impaired by the
court, refusing to give him charges on lesser offences, And
permitting the jury to find him guilty of something lesser then
the primary offence based on the evidence. The issues are
important, but the backgrounds important to. Perhaps more
important!
Plain error to some extent. In that
defense counsel articulated the request as lesser-included
offences, but she did specifically proffer the 2 lesser offences
she wanted so the court had those and as we argued the evidence
certainly supports the finding on either. Basically this
criminal case is a little piece of an ongoing property dispute
between McKay and Russo.
“The disturbing thing in-about this
case is that there’s really no assurance in this case that,
except for Mr. McKay’s testimony, that this happened at
all”! In fact there are a lot of things that don’t make
since in this case… That’s why the legal issues are even
more important in this case where even though technically
we’re not suppose to say this as judges, “Well did he really
do it”? I mean that’s certainly a consideration, at least in
terms of how much evidence is there in this case and how the
legal errors may of impacted.
JUDGES Question: Was there evidence Mr.
Hinton of whether or not there was a weapon found in his car
wasn’t there?
HINTON: Yes there was a 22-bolt action
riffle found in the car according to trial testimony. The
allegation is that Mr. Russo was driving behind John McKay
driving a standard shift dodge colt with a bolt-action riffle
shooting at him. Its hard to do, its hard to visualize that.
But we don’t even know the weapon was fired. The weapon was
found in the car. They didn’t do anything to check to see if
it was recently fired, they didn’t do anything to determine if
the casings found in the car match the weapon, they didn’t
determine if the weapon was even operable. (Note that new
evidence proves I was also on a cell phone at this exact time
with someone very creditable and known).
JUDGES Question: But your not arguing the
evidence did not support the verdict?
HINTON: We’re not making a sufficiency
argument but I think the background is important!
JUDGES:
Although your client did in his?
HINTON: Yes and I would like-want to say
specifically, that the court, I would like them to consider
everything Mr. Russo filed in the case as well as what I'm presenting.
JUDGES: About what you’re presenting.
I'm not sure what evidence was excluded, you- on diminished
capacity or his mental state? Because apparently there was an
instruction on that diminished capacity so there must have been
something that came in? (Note-there was not allowed a
diminished capacity/lesser offence instruction!)
HINTON: Yes there was something-there was
some evidence in the case on diminished capacity. Some of it
came in from the states witness. When apprehended Mr. Russo was
intoxicated, Judge Carole took the position primarily that-that
was basically it and our position is that intoxication evidence
is one form but certainly not the exclusive form of diminished
capacity evidence.
JUDGES: I haven’t read the
transcripts but going back to judge Carole’s decision on
your new trial motion? Her decision was the court allowed
defendant to present admissible testimony regarding his mental
state and the state of intoxication on the date of offence?
Evidence regarding his mental state on
dates that were not the focus of trial were not relevant and
properly excluded so the court at least was saying here that the
problem is not that she didn’t allow evidence on mental state?
The problem is she didn’t allow evidence of mental state on
other days?
HINTON: Well its not that we wanted to
present mental state on other days-we wanted to present evidence
through his wife’s testimony about the deterioration of his
mental state. To just say at trial Mr. Russo was upset because
of this dispute and evection from his motel and also was
intoxicated is…
JUDGES: How is that relevant to whether
he shot the victim? (Big Note-I never shot anyone!)
HINTON: Its relevant to weather he
intended injury! Its relevant because what he did on that
day was a combination of not only drinking on that day but all
the other factors that went into making him feel distraught on
that day! His being distraught on that day didn’t just happen
out of a vacuum. His wife wanted to talk about how…
JUDGES: But I’m trying to understand
how being distraught on that day adds to a defense? What is the
defense?
HINTON: Diminished capacity or lack of
intent!
JUDGES: But how does it effect the fact
he’s distraught? How does it effect his intent if the evidence
says he picks up a gun and shots at the victim? I don’t
understand what intent element is effected by the evidence
you’re talking about?
HINTON: The intent element-the
charge is that he attempted to cause bodily injury with a
dangerous weapon and what, in the defenses opening statements
was, you should focus on Mr. Russo’s intent here that his
intent was to, he was distraught he was upset, he’d been
drinking and he only wanted to engage Mr. McKay…
JUDGES: That’s all consistent with
what I understand his position was, that he never took the shot,
what you started with, which is the underline scenario here, is
that from his car he picked up a riffle and shot at the victim
was not creditable?
HINTON: That’s true!
JUDGES: He never admitted he took the
shot that was your
position, so how does it go to the mental element?
HINTON: The position is it didn’t
happen, but if the jury chose to credit evidence, some
evidence, John McKay’s evidence, that it did happen then the
circumstances of Mr. Russo’s situation and his drinking would
allow the jury to consider whether he intended to injure,
that’s what the charge was-that he intended to injure… Its
possible that he wasn’t intending to injure, even if he
was shooting in the direction of the vehicle and that his lack
of intent to injure could have been, come out of his, both
alcohol consumption as well as all the incidences of that day!
The courts have said in its cases that
alcohol intoxication can go to diminished capacity.
Its not the exclusive thing and in
circumstances like this where the only person that we presented
at trial and that person in the position best to know the
background of what lead up to this was cut off and in part, was
cut off because the judge specifically said lack of intent
unless it comes from alcohol isn’t really relevant-that’s just
not the law of this state!
As
far as the lesser offences, the courts have talked about in a
number of its cases, I think most recently in Corlis that
perhaps would find lesser related offence doctrine is the law
in Vermont! I would suggest this is a case, which is a
classic case that shows the injustice of not allowing
that defense doctrine to exist under Vermont law!
We have a situation here were it is
certainly true one form of simple assault and reckless
endangerment could of been found by the jury even if they
doubted the more serious charge. In fact the reason we know that
is the jury came back with a question and asked-“is putting
someone in fear bodily injury”? And the judge which we don’t
dispute said, “no its not”! But putting someone in
fear was clearly relevant to a lesser charge! And in this
particular case the lesser charge. Either of the lesser charges
carries much less serious consequences… And they were made out
by the evidence! (Note another question was do we have to
find the defendant guilty of aggravated assault?)
There’s nothing in Corlis the court
talked about there needs to be some kind of a rational basis to
distinguish between the greater offence and there also has to be
a position of the defense so that the lesser offence would not
be inconsistent. Here our defense was basically, “he
didn’t do it, but that if he did it he was operating under
either diminished capacity or had no intent to do any harm
physically, nor cause any bodily injury”! Both of the lesser
charges would support that…
I would ask the court base on our
argument “and based on the failure of the police to do
anything to give us any assurance that this whole story wasn’t
just made up by the individual who wanted Russo out of his life,
to reverse the conviction, Thank You!
States
Attorney Executive Director Jane Woodruff for State:
WOODRUFF:
It’s the states position that the trial court did not error
either in its limitation, although we would contend the
limitation was not very great if you look at the transcript and
I’ll be more specific in a moment. And also that it did not
error in refusing to give a related lesser offence instruction
because that’s not what was asked for. What was asked for was
a lesser-included offence charge.
If you look very carefully at the
transcript. What does the court keep out of this case? The court
kept out testimony from the appellants fiancé, wife-I don’t
know what her status was then. That the mothers contribution
monetarily to the purchase of the motel…
In addition the
court restricted testimony to the proffered evidence that the
mother lost everything just as appellant had lost everything.
That was ruled inadmissible. (Note that in bail transcripts
the judge said it is actually a mitigating factor for trial).
Finally the
court restricted testimony that a few days prior to the alleged
offence, the convicted offence, that they had to apply for
welfare and the effect that had on appellant… What did the
court let in? And this is very significant! The court
testimony of the appellant’s wife, that appellant was
incoherent, in his own mind, drinking heavily. The first 2
statements I would argue to you are different from
necessarily being under the influence. He would come in and
go out. He mumbled a lot rambling to himself. In addition she
testified he was overly drunk significantly, did not seem in his
right mind. Went form a strong man to a low man. Talking in
non-complete sentences, kind of irrational.
That is all the
testimony that goes to something other then intoxication and as
judge Carole ruled in the motion for new trial, she correctly
did state that she did let in other state of mind evidence,
other things that may of gone to diminished capacity other then
intoxication. There was a charge on diminished capacity and the
jury had evidence before from which it could find that appellant
could not formulate the specific intent to cause bodily
injury. (This is an out right lie which the transcript
of record proves-there was no jury instruction allowed, to wit:
this is why the public defender motioned for new trial and
acquittal on no instruction of diminished capacity and lesser
offence being allowed!)
JUDGES: Was this a charge that referred
solely to intoxication as the possible ground of diminished
capacity?
*WOODRUFF: It’s
a specific intent, aggravated assault, so it was he
attempted to cause bodily injury with a deadly weapon!
JUDGES: No, but
I’m going to a diminished capacity instruction, the diminished
capacity instruction says that the jury can find diminished
capacity solely as a result of intoxication or did it not limit
the possible ways it can find diminished capacity?
WOODRUFF: It,
it, it, it did (cosidly?) limit somewhat…
JUDGES: So it did say it was
intoxication???
*WOODRUFF:
Right! With respect to the intent issue, again the evidence
through the wife “was that appellant made no statements
with respect to McKay that day; McKay was the (alleged) victim,
He never even mentioned McKay and more significantly appellant never
threatened McKay”! So there “was evidence presented
that there was no intent to harm McKay”, which it seemed
to be the threat of their defense!
Also if you
look significantly at page 76 of day two April 4th this
was just before an objection was interposed by the state, and
defense counsel asked, was anything else going on that day?
Meaning the 17 of November 2002? Before the objection was
interposed the answer was, Nothing!
So in some respects there was no
objection for the court to rule upon but that’s significant!
There was nothing that was curtailed if the answer was nothing
else was going on that day! With respect to the mental state
that the appellant would have you rely upon State v. Daveyond to
show that they were curtailed from being able to present this.
There was no mention in any of the proffers by defense counsel
nor any at trial –there’s no mention of appellants fear, his
confusion, his emotional extremity in those proffers. What the
proffers were is, well we think this goes to mental state and we
want you to know about the mom situation. And we want you to
know about how applying for welfare impacted upon him. But there
was nothing developed to give the trial court an opportunity at
trial without any previous notice by defense to examine this
proffer defense. (Note-this proves some of the
ineffectiveness out of much)
With respect to
the doctrine of lesser relate offences it’s the states
position first that simple assault by physical menus is not a
lesser include offence of aggravated assault and that’s
because there’s one element in the simple assault by physical
menus that’s not in the greater. Not in the greater aggravated
assault that was charged and that is fear of immediate serious
bodily injury… There was absolutely no testimony
whatsoever from McKay that he was in fear of bodily injury!
If you look at the transcripts on the first day of trial page
103 at the end of direct testimony of McKay the state asked him
basically how he was feeling and McKay said my adrenalin was
rushing quite a bit-then the next question was were you a little
scared and he said of course. “But he didn’t say
something to the effect of, I thought I was going to get blown
away, I thought I was going to get run off the road, I thought I
would of got shot”! “And who knows what would of
happened”? There was no evidence to that effect! So
it’s the states position that there’s no evidence to
support a lesser include offence! With respect to the reckless
endangerment. (Note: Then how was I found guilty of intending
to cause bodily injury? Because the state attorney Dan Davis
manipulated the jury?)
JUDGES: But I mean its clear that if
he’s afraid and his adrenalin is running that he’s afraid,
because the situation presents a possibility of serious bodily
injury??? (Note-McKay’s a known liar and drug user and was
nervous that he would be caught lying!)
WOODRUFF: But
we don’t know that its necessarily serious bodily injury?
I think it would be a fair conclusion, but that evidence
wasn’t developed with respect to reckless endangerment! I
think it’s absolutely clear that could of been charged in
addition to all the other charges that were charged but we
don’t have an identity of elements? But what is even more
significant from the states perspective is the lesser related
offence doctrine is a distinct doctrine from lesser included and
right now the case law in Vermont is that we look at the
elements analysis to decide whether a lesser included offence is
going to be charged to deviate so greatly from that which we
have come to except as our case law in Vermont! From the states
perspective “you need to have defense counsel frame the issues
appropriately” in the lower court to give the lower court an
opportunity to fully develop rule and to give you a record and
so for these reasons the state respectfully request that these
convictions be affirmed. Thank You very much.
**This oral
argument just proved there was no evidence and that I was not
guilty of threatening, intent, bodily injury nor the elements of
aggravated assault and prove I was not even guilty of a lesser
charge, proving I’m not guilty!
Or in the alternative both the state attorney and executive
state attorney are seriously contradicting. And that obviously
defense counsel was very ineffective before during and after
trial. Now add the facts left out like the gun was not fired nor
fingerprinted, the alleged witness is proven to of lied and had
a million dollar reason to get rid of me and a public defender
on drugs at the time represented me doing no depositions, no
investigation, calling no witnesses out of several, etc. Also
the evidence was taken from the jury. And these are the little
things that come to mind.
***************************************************************************
Pages below prove the assigned appeal attorney didn’t
have much time for this case
IN THE SUPREME COURT OF THE STATE OF VERMONT
STATE OF VERMONT
V VITO RUSSO
SUPREME COURT DOCKET NO. 2003-348
MOTION FOR EXTENSION OF TIME TO FILE BRIEF
AND
PRINTED CASE
NOW COMES appellant, by counsel, and moves
the Court for an order granting counsel for appellant until and
including January 19, 2004, to file the printed case and brief
in this appeal. In support of this motion, counsel for appellant
says that the time requested is necessary as counsel is unable
to complete the brief by the current deadline consistent with
the appellant’s right to effective assistance of counsel on
appeal. DATED at Montpelier, Vermont, this 18th day of November,
2003. Henry Hinton Counsel
appointed for Appellant cc: Dan Davis, State’s Attorney
***************************************************************************
IN
THE SUPREME COURT OF THE STATE OF VERMONT
STATE OF VERMONT V VITO RUSSO
SUPREME COURT DOCKET NO. 2003-348
MOTION FOR EXTENSION OF TIME
Comes the appellant, Vito Russo, by
counsel, and moves the Court for order granting him until and
including February 20, 2004 to file his brief in appeal. In
support of this motion, counsel for appellant states that he has
been unable to complete the brief by the current deadline
because of the staffing workload of the appellate office; the
undersigned is the only appellate attorney the office and the
office currently has 14 appeals with complete records ready for
briefing. Further, counsel and appellant, at the request of
appellant, need to meet and confer about a draft of
appellant’s brief; we have been unable to meet to date but
plan to do so in the near future. Appellant, who is
incarcerated, agrees to this request for an extension of time.
Dated at Montpelier, Vermont this 20th day of January 2004.
Henry Hinton Counsel for Appellant cc: Dan Davis. Esq.
***************************************************************************
State
of Vermont
Pro-Se
Attachment To Appeal
Supreme Court
V
Vito
J Russo
Statement and Brief of Appellant
Docket # 2003-348
For many years Vito Russo has been a
respected and responsible member of his community. He is a
father of two children. He has been a minister/counselor and
worked in the veterinary field at a prestigious clinic for
several yrs. He owned and operated the Unique Vermont Motel and
Gift shop, which he also used to help others. His criminal
record is not as it seems which was disputed and objected to.
But mostly from teenage years, which after his sentences he has
not committed crimes from 1993. On the contrary he has made a
successful, responsible and productive life for himself.
He
has been a community leader and contributed much of his time,
money and materials to helping the homeless, local churches,
schools as well as other community projects. This was pointed
out and shown with documentation both at trial and sentencing,
several letters, petitions and calls in support were brought to
defense atty. as noted in transcripts. He is respected and
admired as a fine man, a concerned citizen, and a loving and
caring individual with a keen concern for his family, humanity
and high moral character.
On
October 2002 through no fault of his own he lost his home,
business and even personal belongings in a foreclosure that is
still in courts and show arguably fraudulent intents and due
process violations. This was caused by this same alleged victim
John McKay. It is noted in transcripts also that others have
called defense attorney about harm and wrong this victim has caused
others. And stated they were frustrated by the courts always in
his favor. Mr. Russo simply went on with his life letting the
courts handle the matter. He and his family moved in temporarily
with his friend and attorney Franz Frechette.
On
November 17 2002, a Sunday evening, Mr. Russo went for a drive.
When he drove by Mr. McKay’s place of business, not expecting
him to be there. He noticed McKay plowing. He then turned around
pulled over on the side of the road and asked if he could talk
to work things out, as he has tried before. Having absolutely no
reason to fear the alleged victim said no I wont talk to you,
and continued to plow his car lot, which is quite large.
It
was the holidays and Mr. Russo just was hoping to have a place
for his wife and his children till yrs end, even offering
$5000.00 through attorneys to no avail: Its well known and
documented that McKay just wanted to get rid of Russo, as also
shown in transcripts) even stating this to others, after all, he
did basically put Russo and his family on the street as homeless
for the holidays, that is an example of this alleged victims
character.
NOW
ADD victim’s lies and story of a 30 min. chase in and out of
traffic, for only 5 miles at 60mph! Passing stores, restaurants,
gas stations, homes, pedestrians and even a police station. One
big plow truck, a small car with no muffler. All allegedly
driving, shifting and holding/shooting a bolt action riffle out
the side of the car. Yet not one person witnessed any of this
but two friends of the alleged victims, also very indebted to
him, and changed their statements. Victim and police say a
pistol yet it was a 22 riffle found. An illegal search was done
that Sunday, but warrant is dated Monday. This riffle was in
trunk not front seat.
Appeal Arguments and Laws
1.
Grounds - Abuse of Discretion
An
error of judgment by a trial court in making a ruling that is
clearly unreasonable, erroneous or arbitrary and not justified
by the facts or the law applicable to the case. As in ‘clearly
erroneous’ - being or containing a finding of fact that is not
supported by substantial or competent evidence, or by reasonable
inference (finding of facts), shall not be set aside unless
clearly erroneous. Federal rules of Civil Procedure, Rule 52(a),
also Amendment Vii Constitution in the back matter. Compare
abuse of discretion, De Novo. The requirement that findings be
clearly erroneous to be set aside is a standard of review used
especially by an appellate court when reviewing a trial
judge’s findings of fact for error, as opposed to a jury’s.
2.
Reversible Error - A substantial and prejudicial error
warranting reversal on appeal Refused and denied a full and fair
defense and trial for evidence and jury instruction, diminished
capacity
mental health prior to incident and lesser-included offense of
reckless endangerment. State failed to prove specific intent
elements of attempted aggravated assault, improperly introduced
PSI, and psychological evaluation and denied motions on these
effects.
3.
Prejudicial - Having the effect of prejudice; tending to injure
or impair rights; leading to a decision or judgment on an
improper basis.
4.
Prejudice - Injury to ones legal rights, substantial impairment
of a defendant’s ability to defend. An irrational attitude of
hostility directed against an individual or there
characteristics, an attitude or disposition (as of a judge) that
prevents impartiality <that the judge before whom the matter
is pending has a personal bias or prejudice against him.
5.
Substantial - not illusory; to have merit, having importance
considerable in quality. Substantial justice denied.
6.
De Novo - Over again; as if for the first time; allowing
independent appellate determination of issues (as of fact of
law) ( a De Novo review) allowing complete retrial, as upon new
evidence, etc. Compare abuse of discretion, clearly erroneous. A
De Novo review is an in-depth review. Decisions of federal
administration agencies are generally subject to De Novo review
in U.S. District Courts, and some lower state courts decisions
are subject to De Novo at the next level.
7.
*Lesser Offenses - The defense is entitled to a lesser offense
instruction whenever a reasonable view of evidence could support
acquittal of the greater and conviction of the lesser. In an
aggravated assault prosecution where defense presented
substantial evidence of diminished capacity, which reduces the
crime to simple assault, the trial judge was bound to charge on
the lesser offense. State vs. Bolio, No. 9 1-206 (VT. Sept. 18,
1992). Also view the Blockburger test, which were the original
charges - simple assault.
Defendant’s
whole case was an exact example of arbitrary, without rules.
Judged dependently on individual discretion (as of judge and
state’s attorney) and not fixed by standards of rules or law.
Even the manner of punishment is arbitrary. Not restrained or
limited in the exercise of power, based on preference, bias,
prejudice or convenience rather than on reason and facts or
applicable law. Irving vs. Holly, 131 F. Supp. 851 (1955) and
for Re: Administrative Procedure Act section 706. If proof and
lack of evidence show this, a court should set aside judgment
and finding, if arbitrary is discovered, it is a constitution
violation in many ways.
A
court should be a foundation by the positive laws thereof; and
by a constant practice which proves a custom, then which, when
it is for common good, there is no law more inviolable secure
from violation or profanation.
Defendant’s
state of mind was clearly confused as transcripts prove, showing
impaired and diminished capacity. Just before alleged crime,
proving original charges of arrest (being simple assault), which
should have been tried or a lesser included offense entered and
instructed properly. A major element - a specific intent element
of aggravated assault the state could not prove, let alone prove
without doubt, and failed to do so. Showing misconduct, abused
discretion and outright errors. Model code SS 1.12(1) provides
that no person may be convicted of an offense unless each
element of such offense is proven beyond reasonable doubt.
Courts held that Legislature intended to proscribe conduct which
would place the victim in actual danger of death or serious
injury, not mere ‘apparent danger’, State vs. McLaren, 135vt
291, 293, 376 (1977). A person who is unaware of risk due to
intoxication - impaired thinking is reckless, thus reckless
endangerment.
Defendant
had valid reason to show alleged victim’s characteristics of
aggressiveness, distrustfulness and highly possible perjury for
impeachment, but all evidence, etc. was ignored and denied with
evidence and witness to prove this, which would change the
credibility of his own statements. Reliability and relevance was
based highly on alleged victim alone. It was brought up in trial
of past trespass order ‘in depth’, and should have opened
the door to bring in events that led to the order. If, in fair
defense, defendant could have proved recorded harassments,
aggressions and unreliability of alleged victim extensively,
also bringing and showing his mental illness and character. It
was stated defendant’s wife was even in fear that our home,
purchased from the alleged victim, may burn down with her in it
and other references to alleged victim’s character, but denied
any clearer examples or arguments to show claims.
The
only accurate information was presented, or denied entry, by the
defendant and not the state. The state based all of it’s
findings on only rumors, hearsay and inconsistent /inaccurate
information. The case was prosecuted as if it was the
prosecutor’s last case or outcome would affect his job, making
a simple case into a major one. Sentencing alone took three
hours; trial took two days and over four hours of deliberation.
Only one witness in this case and that was clear hearsay, second
hand evidence and alleged facts without any personal knowledge
of relative information. Based only on what witness ‘thought
they heard’ not what they actually saw or knew, causing doubt
in itself.
Basic
concerns of criminal justice were denied causing a vindictive
trial sentence and prosecution. Information relevant to
sentencing was clearly argued and ignored, giving no right to
present any defense even more so. Yet disclosure is justified by
the demands of fundamental fairness; defendant should have been
able to ensure the sentence is based on accurate and fair
information. This simply denied was plain and egregious error.
The only thing that was proven was a .22 hunting rifle belonging
to defendant’s son was in the car, and much question of
illegal search and seizure.
There
was no valid proof of intent nor guilt of aggravated assault
causing harm, injury nor fear, as jury even questioned. No facts
or laws showed sufficient evidence of the crime.
1.
An untrusted, discredited alleged victim with inaccurate
statements claimed it was a 9mm pistol, not a rifle, proved no
fear involved, lied under oath.
2.
A hearsay witness that changed statements of what she only heard
and is heavily indebted to alleged victim owing him much money
for property. That statement alone of shots in woods by hunters
is her only statement.
3.
Defendant showed more weight with very limited defense than
state did in his major defense. Having more on his side to
disprove than to prove alleged crime.
4.
If given the proper defense of investigation, depositions,
subpoenas and witnesses, defendant would have been found
innocent. This was prejudice causing discrimination and proven
by transcripts and records; lack of due process, lack of fair
trial and defense, lack of equal protection, and in effect
causing very cruel and unusual punishment. Sentencing defendant
to 21 years is purely deliberate indifference after and in view
of many similar cases.
Was
there any proof without doubt that any aggravated circumstances
were involved. In light of the jury’s inquiry alone, it is
clear that jurors were not sufficiently instructed. How could a
jury be properly instructed if they solely only had
prosecutor’s idea of defendant’s intent for that day? They
had no idea of defendant’s intent for that day. Council failed
to contest hearsay evidence used in trial and sentencing.
Sentence was imposed and tainted by abuse of discretion,
criminal record was substantially wrong. Court only based and
focused on what defendant was already convicted on, assumed
guilt from start and sentenced because of adding hint of being
sentenced for crimes defendant was punished for already - like
double jeopardy.
The
person that testified as a witness was only a witness of what
her husband heard - hearsay of hearsay. In fact her husband,
whom she wrote the statement for, was a missing witness.
A
conviction obtained under an instruction that relieved the jury
from finding an essential element of the crime violates the
fourteenth amendment’s due process clause. Did court fail to
require jury unanimously to agree on elements of aggravated
assault, thereby permitting unconstitutional imposition of
sentence based on less than unanimous verdict?
Record
shows that Petty’s report (PSI) was disputed, and that he had
been proved an unreliable expert witness before. His report was
not credible yet he stated that his report was based heavily on
Mr. Stevens’s findings, showing it should not be credible.
Case Law and Recorded Errors of Argument
Grow
vs. Walcott (1963) 123 VT 490, 194A.2d 403 States the Supreme
Court can interfere in discretionary matters if results reached
were unreasonable. Matters are review able if the court failed
to exercise, or abused its discretion. Merrill vs. Reed (1962)
123 VT248 185A.2d 73.
Bresette
vs. Knapp (1960) 121 VT376,159A.2d329 Regardless of objections
or not the Supreme Court will on appeal consider the sufficiency
of evidence to support specific findings if raised by appellants
brief. Davis vs. Kneeland Lumber Co. (1963) 124 VT 7O
Expert
Testimony Rathburn (1970) 128 VT 429,266A.2d 423 Sufficiency of
Evidence. Winter vs. Unaitis (1964) 124VT 249,204A.2d1 15.
The
psychological report was brought up leaving an open door for
judge’s speculation, causing error.
Sufficiency
of Evidence title 12, ch.102, ss2385 #6.
State
vs. Brisson (1964) 124 VT 211,201 A.2d 881 Discretionary
Matters.
Harmful
Error title 12, ch.l02, ss2385 #l2
Supreme
Court of the US has made clear that the sentencing judge must
have the fullest information possible concerning the
defendant’s life and characteristics. Williams vs. New York,
337 US 241,247 (1949). This was clearly ignored.
Sentencing
Fairness Gardner vs. Florida (1977) 430 US 349.
State
vs. Williams (1979), 137 VT 360,406A.2d 375.
See
Fennell and Hall, due process at sentencing: An empirical and
legal analysis of the disclosure of the pre-sentence reports in
Federal Courts, 93 Harv. L. Rev. 1613 (1980).
US
vs. Woody ( cir. 1978) 567 F.2d 1353.
Arrest
records are not a reliable basis for individual sentencing,
arrests do not always result in convictions and arrest data is
unreliable. They were disputed and ignored.
Defendant
was prevented from introducing evidence of alleged victim’s
and witnesses fabricated evidence. Cross examination must be
allowed an opportunity to expose to jury the facts from which
jurors, as the sole triers of fact and credibility, could
appropriately draw inferences relating to the reliability of the
witness. Limitations on cross-examination violate the sixth
amendment. Delaware vs. Fensterer 474 US 308,318 (1974), Olden
vs. Kentucky 488 US 277 (1988), Delaware vs. Van Arsdall 474 US
15 (1986), Davis vs. Alaska 415 US 308 (1974), Smith vs.
Illinois 390 US 129 (1968), VT State vs. Rounds No. 93-127 (VT
Sept. 1994), State vs. Cartee 161 VT 73 (1993), State vs. Covell
(1985), State vs. Reavis (1995).
Evidence
was minimal and prejudice was great. It’s a constitutional
standard of proof that one be convicted only in light of clear
and convincing evidence. It was an ‘acknowledge or else’
case shown by the judge’s bail hearing remarks, to not wanting
to hear anything defendant had to say, to ignoring important
relevant facts, evidence, documents, records and last statement
of sentencing, especially saying defendant showed no remorse.
In
aggravated assault, if a person attempts to cause or purposely
or knowingly causes bodily injury to another with a deadly
weapon, makes the ‘mental’ element of either purpose or
knowledge a necessary element of the offense, and the concept of
specific intent, both concepts imparting a conscious intent or
design to act as charged and evidence of voluntary intoxication
may be introduced to negate such mental element. 13 V.S.A 1024
(a)(2); Instruction that voluntary intoxication was not a
defense was error, and the error so affected the substantial
rights of defendant that it would be noticed on an appeal
despite lack of proper objection below. 13 VS.A.ss1024
(a)(2);V.R.Cr.P. 30,52(B); State vs. D’Amico 136 VT 153, 385
A. 2d (1082)(1978); State vs. Murphy 128 VT at 293, 262 A.2d at
460; evidence of voluntary intoxication ‘is available to
diminish the requisite capacity, and can be entered in a charge
of 13 VS.A. ss1024 (a)(2); Id. ss2.02 Penal code rationale makes
evidence of intoxication avail to exculpate if it negatives an
element of the offense, Id. Ss2.08(1), according to code
commentary, proof of a mental state characterized as purposeful
and knowing may be negated by evidence of intoxication,
Id.ss2.08, comment (Tent. Draft No.9,1959).
If
evidence of intoxication is involved, the jury shall be
instructed to determine the effect on defendant’s mental
process and whether his mental capacity was so diminished as to
present him from forming the requisite felonies intent. State
vs. Girouard 135 VT 123,137,373A.2d 836,845(1977). State vs.
Barrett 128 VT 458, 461,266A.2d 441,444 (1970). The trial
court’s lack of instructions on voluntary intoxication alone
was error. Trial court failed to comply with V.R.Cr.P.30. Fraser
vs. Choiniere 133 VT 63l, 634, 350A.2d 755, 758 (1975). V.R.Cr.P.
52(B); State vs. Morrill 127 VT506, 511, 253A.2d 142-145 (1969).
*If
guilty of DUI, and testimony of ‘not in my right mind’ just
prior, then during arrest due to intoxication it negates an
element to lesser charges from aggravated assault. Officer
stated defendant was very different.
*If
PSI report was true as presented, the psychology report
clearly negates an element.
*Adding
alleged victim’s never at his place of business on a Sunday at
dinnertime, is clearly fact that shows no intent to purposely go
cause bodily harm nor taking matters into defendant’s own
hands. Highly ‘coincidental’ that victim and defendant even
saw each other.
*Alleged
victim claimed he continued plowing after alleged incident,
showing no fear or much stress. Alleged victim stated that he
tried to ‘plow’ defendant, showing even less fear. Passed a
state police station, again showing no fear, and took close to
45 minutes to get to local police station only four miles away.
*A
veteran police officer, who has known alleged victim for many
years, when asked if he appeared in fear, stated, “No, I
thought he was drunk”, and gave him a Breathalyzer.
Evidence
proves without doubt defendant was clearly intoxicated, that
alleged victim clearly was not in fear of bodily harm in any way
shape or form. Both alleged victim and defendant have had bad
acts in the past, clearly shown by judge’s statement, “
victim may have caused harm to others before, but this is not
about him.” Coupled with lack of jury instructions and errors
of court evidence proves without doubt a lesser included offense
at most. Jury clearly questioned if they have to find defendant
guilty if he only caused stress, and should have been properly
instructed at that point. Also showing their doubt after two
days of trial and four hours of deliberating, and after the
other three questions could not be answered. One was about
evidence demonstration, but they were told the evidence was put
away for the weekend. To eliminate two members of the jury
before deliberation a bowl of bullet shells (showing prejudice)
was passed around to see who would be eliminated. Not allowing
defendant a defense, not allowing evidence, not granting
motions, not allowing defendant any fairness, and not allowing
any fairness or defense at sentencing are all errors. Testimony
from officers proved #1 on charge of DLS was first offense and
the suspension had expired, proving defendant was not driving
with a suspended license.
This
shows much prejudice when sentenced to serve 1-2 years for that,
consecutive with 15 years to serve for the attempted aggravated
assault without merit, and other minor charges adding to 21
consecutive years to serve. Extremely cruel for an original
charge of simple assault, with no evidence, much doubt and only
found guilty due to errors of court and ineffective council.
Clearly shown by record when she opened by stating she was not
experienced and needed notes, then closing by stating,
“There’s no tomorrow, you have to decide today”, on a
Friday night at 5pm. Also stated this case was about the US
Constitution, but never mentioned nor argued anything else about
it or it’s effect. It was clear that attorney/client
relationship was not confident, arguing in front of judge on
different occasions. The entire proceeding seemed to lack even
basic due process and other constitutional guarantee. This
should be looked at in the interest of justice for exactly what
it is, clear abused discretion, reversible error, De Novo,
substantial prejudicial error, causing much prejudice having
irrational attitude and disposition impairing defendant’s
right and ability to defend. If not for these errors, defendant
would not have been found guilty of any felony, nor sentences so
substantially extreme, to 21 years, let alone one year, is if
singled out showing deliberate indifference.
A
clear example was just prior to defendant being sentenced in
same court with the same judge. A case with death resulting,
carrying the same sentence (15 years) as an aggravated assault,
with more guilt of crime and sentenced to only a 30-90 day
suspended sentence. Many other previous cases testify to fact of
different treatment simply in defendant’s sentence alone of 2l
years. Showing harm and neglect, and all justice and rights of
defendant rudely denied. The court clearly made a total shambles
out of what should have been a fair proceeding by falsely
presenting a picture of fairness.
The
party accused may defend himself:, be heard by council, produce
witnesses and proof in his favor, VT.Cr.P, 13,ss6501. Client
should be represented by an attorney to the same extent as a
person having his own council and to be provided with the
necessary services and facilities of representation, Title 13,ch
163,ss5231, Fletcher vs. Sorczyk (1992), State vs. Rice (1987),
State vs. Spear (1983). Extent of services of council, Title 13,
ch 163,ss5233.
Winship
requirement is all elements of criminal liability by proof
beyond a reasonable doubt, District Court Rules 80.6. In witness
statement of hearsay, information shall be ‘a plain, concise
and definite written statement of the essential facts
constituting the offense charged, V.R.Cr 7(a), also it is
necessary that the information contain the ‘elements’ of the
offense, State vs. Kreth 15O VT 406,407 (1988), citing V.RCr.P.
7(B) when information omits an essential element of the crime
charged the information ‘ is defective and cannot serve as a
basis of a conviction’. The statement has no element at all
and was changed. If court finds there has been such a denial or
infringement of constitutional rights as to make judgment aside
and shall discharge the prisoner or grant a new trial if not
dismissed in the interest of justice.
V.R.Cr.P.
32 requires sentencing information be reliable, State vs. Ramsay
146 VT, 70,81 (1985). The defendant has an undoubted right to
prevent favorable sentencing information and to insist that all
sentencing information be reliable, V.R.Cr.P. 32(c)(4), State
vs. Drake, 150 VT 235,236 (1988). Records and information were
wrong and was brought to courts attention, but also clearly
ignored. Information of PSI was not even given proper time to
dispute. Defendant received report on July 7 and was sentenced
July 14, 2003. PSI must be disclosed to defendant personally at
least 14 days before sentencing. Before imposing sentence court
must determine that defendant had a chance to read and discuss.
Defendant had no right to defend, finding many provable errors.
V.R.Cr.P. 32(c)(3), State vs. Cox, 147 VT 421,425 (1986). And if
an evaluation is done Miranda warnings must be given to
defendant, C.F. Estelle vs. Smith,451 US 454 (1981). Materially
untrue information is prohibited but was the basis of the
defendant’s conviction.
Trial
courts decision to admit testimony, while limiting certain
testimony and which statements were made, properly balanced risk
of confusing issues and misleading jury against defendant’s
constitutional right to present exculpatory evidence, State vs.
Coliss (1998)168 VT 333, 721 A.2d
Prosecutors
- Recusal -Participation in mediate efforts. An intermediate
appellate decision that efforts to ‘mediate’ between
embattled parties required the prosecutor’s entire office to
be recused from a criminal assault action growing out of the
feud was reversed by the Washington Supreme Court. The problem
was the absence from record of the support for the appellate
courts conclusion that prosecutor was actually engaged in
mediation, State vs. Jolias, Wash. Supreme Court, No.65234-1,
5/7/98, reversing 929 P.2d 1178,60 CrL 1454.
In
June/July of 2001, my fiancé and I were in our attorney’s
office, and her being aware of continuous harassment by the
later alleged victim, we brought this up and asked if we could
file charges because it was becoming too much and criminal even,
stating before it turns around on us. Our attorney, Joan Adler,
said she’d go ask her college his advice as to what to do, he
was in same office. She advised him on what was going on, making
him a ‘mediate’ in personal matters. He advised if we press
charges they would just be dropped and nothing would happen.
That attorney was Dan Davis. I was arrested in Nov. 2002. Dan
Davis knew well the names Vito and John.
Statement of case and facts
Evidence
was taken away and put up for the weekend. The jury wanted a
demonstration with the weapon of how defendant could possibly
shot, reload a bolt-action riffle all while driving and shifting
gears down a highway while on a cell phone. It could have
changed the outcome of the verdict. Jury was told the question
could not be answered because the evidence was put up for
weekend, this was after the jury’s question of what they
should find defendant guilty of. They strongly believed that the
alleged victim was not in much fear if as he stated, he went
back to plowing after defendant allegedly pointed a gun at him,
did not call police on a cell phone, nor stop at the nearest
police station, but passed by it.
Ineffective
counsel should be looked at for simple facts, which would bring
in looking at the whole case. If public defender was effective
this defendant would not of been found neither guilty nor
extremely sentenced to 21 years. (1) Public Defender opened by
stating forgive my notes I am not as experienced as the state
attorney, then the state attorney brought in his assistant and double
teamed her. She was stepped on all though the trial being
objected to every time she tried a point of defense. It was
noted twice in transcripts that public defender and defendant
had argumentive disagreements during trial on major issues.
Public defender put in withdraw twice and defendant put in for
new counsel (firing her) twice and once at sentencing. Defendant
clearly wanted to take the stand, but was persuaded by Atty.
that we should win because she feels good about it. Also I
was forced into waiving my speedy trial rights”.
More
ineffectiveness is shown at closing statements when she said
there is no tomorrow; you have to make your decision today.
(This was a Friday at 3-4oclock). Sentencing shows she was even
less effective when the judge ignored anything she had to say in
defense, like at trial. Added in no motions before trial for an
illegal search and seizure, arrest and charges changed 5 times
on the same night of arrest. Originally charged with simple
assault. State attorney was called on that Sunday night at 6pm one
week before thanksgiving. Originally they said they seen a
pistol, but a riffle was found.
Defense
Attorney did open statement by saying this trial is about the United
States Constitution.
Witness’s
statements were clearly hearsay and changed from original
statements, victims own statements changed, proving
inconsistency. Matter a fact the defendants statements are the
only one that did not change or get added to. The police stop
sounded like a 30-minute ordeal yet police log proves from time
to stop of defendant till in custody was only 2 minutes.
No
depositions were taken nor subpoenas which defendant clearly
requested more then once. No form of investigation and no
defense rights at all. Even the defense attorney stated to defendant
and his wife, ‘I’m sorry they didn’t allow me to defend
you”. And when the defense attorney asked the judge before
sentencing a question (about manage), she was told no because I
am afraid he will get a new trial. This was right after the same
judge denied motion for acquittal and motion for new trial. This
was in effect a life sentence and should of required at the
least a minimum defense right to some form of defense and
effective counsel. This is only some and not at all limited to
the in effects of counsel.
Other
facts, the judge worked for the state prosecutor and did show
much favor towards her co-worker, causing much prejudice in this
case to the defendant. Proven in transcript time and time again.
The
victim was a friend of the state attorney, and this was stated by
defendant and his wife to victims advocate which stated that it
did not matter and we have no rights only the alleged victim
does.
State
attorney was personally an adviser and a mediator in the defendant
and victim’s personal property issues before the arrest and
charges at a property closing.
A
charge of trespassing was wrongly used against the defendant and
that charge was still pending in court and latter dismissed, and
state attorney did know this. Yet so stated if defendant trespassed
once then he may do it again.
Impartiality
is reasonably questioned! Disqualification is that the judges
impartiality in this case might reasonably questioned that is,
that a doubt of impartiality would exist in the mind of a
reasonable disinterested observer! Justice must satisfy the
appearance of justice. (This can cause actual bias or
prejudice). The improper collaboration between prosecutor and
judge was evident. We even begged and pled for leniency to no
avail, even the defense Attorney saying sentencing this man to 21
years is overkill and gives his family and him no hope.
Trial
court abused its discretion and the sentence was similar to
cruel and unusual punishment shown by sentencing this defendant
to the maximum and consecutive is highly unusual.
If
not for so many errors, the jury verdict would have been decided
differently, which clearly were not instructed properly. No
clarity of law was given to them at all. They were clearly
confused as judge noted. Some of the alternates were eliminated
at end of trial by a bowl containing bullet shells being passed
around!
The
due process clause, does guarantee trial before an impartial
court and indeed the denial of that right can never be harmless
error. The VT. Constitution also specifically ensures that
justice in the courts of the state, Shall be impartially
administered. A fair trial in a fair tribunal is a basic
requirement of due process. In re: Murchison, 349 U.S.133, 136
(1955), See also Withrow v. Larkin, 421 U.S. 35(1975); Ward v.
Village of Monroeville, 409 U.S. 57 (1972).
A
judges direct, personal, substantial, pecuniary interest in a
defendants conviction violates due process. A judge should
disqualify herself in any situation that would offer a possible
temptation to the average judge to lead them not to hold the
balance nice, clean and true. It is noted even a quite casual
relationship let alone controversial social one, can be raised
as an appearance of impropruety. In Richard V. Richard 146 Vt.
(1985) the court held an assistant judge who had known the other
party slightly should have been disqualified. Either the judge
or state attorney should have known in this case how to apply the
laws. But besides statue and constitutional ignorance and lack
of human rights and care the unprofessional and unethical
misconduct not only deprived this defendant and his family of
there rights but also basic liberty interests.
Police
interviews page 20. And transcripts page 19 and 113, state McKay
was never threatened.
Page
98, McKay said “I guess he was pointing a gun at me”.
Page
98,99, yet he turned his back and continued plowing not one
swipe, but a couple! This lot is about 200 yards long, not a
small lot to plow, let alone while in alleged fear.
Page
99,100 shows he knows guns well this was also stated by him in
the police interview and bail hearing, yet he guess’s I
pointed a gun at him, and thinks it’s a pistol, 9mm not a
rifle (this is no small rifle, its 3 feet long or more).
First
shots! transcripts, Page 100; McKay said were down by the Unique
Motel, yet #1 the motel was full of tenants, no one heard shots,
nor did any one in the house next to the motel, which were
questioned! Latter he changed were this happened. There is a
mile + difference and he owns them both.
Page
6,7 of the police interview, though McKay clearly said “NO”
the first shots were not near the Unique Motel , but near the
Stoney Brook Motel — even correcting himself; there is a big
difference.
Police
interview page 14-15 prove unless the officer was very
unprofessional and untrained he stated McKay probably don’t even
remember talking to him when he came to police station and gave
his statement against defendant. How would he remember events
clearly? This proves without doubt the alleged victim was not
creditable.
15-16
(police interview) shows more incredibility when McKay states he
is out smoking a cigarette with Penny, a female officer. He then
states in bail transcripts page 8, “I was out with a officer
but forget what his name was”, he even forgot a male from a
female which he even normally knows on first name basis (Penny)!
Clearly this victims mind was not clear then, nor at trial.
McKay
said he heard one shot at a time, by 4, even saying where each
one was. But not only changed the places, but also change the
number, one shot, to two at a time. His friend and hearsay
witness only heard a shot corning from the woods and said she
thought it was a hunter. Not from the road and later changed her
statement to the road, the statements were NOT direct knowledge
but hearsay! There is a big difference.
Transcripts
page 109, McKay said the exhaust was loud, (defendant had no
muffler on car), Why didn’t his friend and hearsay witness
hear the car? He was only 50 yards away? He said he heard McKay plowing, and 2 shots which were a mile+ away from him. All while
he was working on his furnace, in his house while it was pouring
hard rain and next to a running brook!
Page
108- 109 transcripts, Right across from the state police
barracks, McKay went by daily for over 30 years, he said a shot
was fired. But no one even noticed as he states 2 vehicles
bobbing and weaving in and out of traffic. Seems no one in the
traffic noticed this either nor reported any stray bullets.
Bail
Transcript page 14, shows let the search warrant speak for it
self- well it was an illegal search, On the Sunday of arrest the
17th as evidence report prove, not the 18th, A Monday
! Let alone 1999 or 2000 as noted on warrants, and affidavit
shows officers said “he seen a pistol on the front seat” not
a three foot bolt action rifle, “He can tell small shell
casings” but not a rifle from a small 9 mm pistol??
The
search, as evidence proves was illegal. Is that why Dan Davis
was called at home on a Sunday night at 6:00, supper time, one
week before thanksgiving for what was a misdemeanor charge.
Originally simple assault. Davis was called, then my charges
changed several times, and then held with no bail —over riding
a magistrate’s decision even, Also the vehicle was not mine,
and it had Minnesota plates.
Bail
Hearing, page 19; not only shows McKay kept plowing not showing
any fear, but was even going to park and go get his own gun from
another car.
Bail
hearing, page 21; A different Judge fully believed that loss of
home, business etc, was a mitigating factor, yet, Dan Davis
tried so hard to keep this from the Judge, as Dans traits and
tactics have shown before, like the illegal search, the charges
changing, the trespass I wasn’t guilty of latter dismissed.
The arrest took 2 minutes not 20minutes. The witnesses that were
never called, the police call log for initiating call, let alone
all the objections to any and all defenses, from arrest to bail,
trial to sentencing Dan Davis took this personal and would stop
at nothing but the maximum penalty no matter what. And his
former employee, judge Carol, understood this! Certain
prosecutorial conduct will raise a presumption of
vindictiveness, especially by a desire to punish. The PSI was
clearly erroneous, then the judge contradicting herself
(Sentencing page 95); stating, “I won’t rely on it” then
said, “all I read was the opposite of what the defense
presented”! From page 60 to 99 shows and proves extreme
prejudice and unfairness.
Sentencing
page 2&3 shows hearsay allowed by judge, which was argued by
defense as improper. Page 3 also shows that a Big stack of
letters and petitions were sent directly to the court of
defendant’s behalf. These were all ignored! Though they were
from family, friends, doctors to attorney’s, all over the age of
30+ and none with a criminal record. (Unlike the alleged victim
and his witness).
Sentencing
page 36-3 8 Prove much credibility on defendants behalf also. It
proves I was neither mad nor intent on violence towards McKay. A
friend and lawyer Franz Frechette took my whole family into his
home when we were wrongly foreclosed on by alleged victim
(McKay). McKay knew that night he could get rid of me by saying
I shot at him; He knew I kept the riffle at this time in trunk
and away safe from our children. It was testified to he has even
stated before he knows how to get rid of Vito (defendant) if he
has to. And stated himself in transcripts; I want him out of my
life forever. More vengeful like then an un-harmed victim.
Mr.
McKay clearly knew the foreclosure was not over and I would
prove intent fraud by him in court. Which I now have, proving
even more validity to this whole subject This came to the
Supreme Court and now is in Federal with much merit and favor on
our side.
U.S. District Judges Recent Opinion, J.
Garvan Murtha states, “For purposes of the courts screening of
the complaint for legal merit, the court will accept Russo’s
factual allegations as true and correct! Russo’s accompanying
documents arguably support “Fraud and a Denial of Due
process”, Dated November 17, 2003! Fed tort action, case # 1:
03-CV-230, Russo V. McKay!
This
is truly what the case was about, an illegal and wrong
foreclosure, and 10-day writ of possession, eviction which yes,
shows the lack of heart of the alleged victim McKay! He took the
Home, Business and all personal belongings and vehicles of a
Husband, Wife and Children on the first winter night of October,
2002! And was OK with that like he has done to others before.
Myself
and family simply went on with our lives the best we could. We
had good and well-trusted friends and family in the community
and as we still are now were letting the courts handle it and
deal with the right and wrong.
My
sentence is rude and extreme; somewhere, someone must ask
themselves why? I have had no trouble in 10 + years. Had a ton
of support from calls to letters directly to the courts, yet all
unfairly ignored. Defendant never had a chance directly due to
McKay’s wealth and influence. After all he was a friend with
the prosecutor. Myself and family deserve a fair chance, we
never had that.
Several
people were willing to come to my sentencing-yet no one was
called. Being held a year without bail, I had correctional
officers to case workers, education workers to mental health
staff and family to friends all willing to come on my behalf
which to this day still state the opposite of what the states
report was. Which I was sentenced by, Only what the State (Dan
Davis) presented was accepted and what he wanted left out was
allowed.
This
is no wolf story, but a true and unfair one. The claim mentioned
above is for $3,500,000.00.(three million, five hundred
thousand). That is why McKay had reason to get rid of me. As his
own words stated in court. Defense attorney even stated in
sentencing that she received calls from several people on my
behalf and against alleged victim McKay, but some did not want
to show up do to the influence and outcome McKay is known to
receive. Even stating there frustrated with that. (So it is
recorded & clear knowledge).
McKay
was objected to, his witness was objected to, the sentencing and
reports were objected to and the Judge simply ignored this but
was very attuned to whatever Dan Davis wanted And his client
McKay. Plain error
to say the lease.
In
the many months adding to years incarcerated, with a sentence
now of 15-21 years, And a federal charge also, which I face
another minimum 15 years. I (defendant) am still a model inmate
with no program needs nor behavior problems and in fact have one
of the most responsible and trusted jobs in the institution.
Having an LSI test done recently by staff, it scores that I
should be community custody and with no program needs. This is a
correct and true report. Unlike the PSI. The complete opposite
of the objected to reports. Also proving what the Big Stack of
letters stated in my defense (mentioned above).
The
law of Vermont has always recognized that the responsibility of
the state’s attorney to carry out his function to represent the
sovereignty of the State of Vermont, requires him to act with
impartiality and with the objective of doing Justice without
regard to his personal feelings. If he cannot so act, his
responsibility to his position and profession require him to
disqualified himself (ret J.S, 104 Vt. 230, (1981)
No possible plea bargain was even offered
in this case, which is not the norm. The charge from simple to
aggravated was never officially changed. The objections to all
and any defense coupled with prosecutors motive and desire to
punish shown more by the grossly disproportionate penalties he
requested, (even wanting more time then the sentence). Which
shows some form of Vagueness, over breadth and
selective/vindictive prosecution. To
wit: In the many crimes of Vermont that have similar merits and
elements, but have more evidence, violence and fear in them.
Most have received reckless endangerment or simple assault and
very much less penalties.
Arbitrary
and discriminatory enforcement should not be encouraged like in
my (defendants) case. “Weighing all the evidence including the
credibility of victim, his friend and witness, the verdict is
clearly against the weight of the evidence”. The evidence
preponderates heavily against the verdict and a serious
miscarriage of Justice is the result. There was much lack of
simple Due Process. The court made a total shambles out of what
should have been a fair proceeding, by “falsely presenting a
picture of fairness”! If defendant were able to afford an
Attorney and fair defense he would be home with his family right
now not struggling to keep them with 21 plus years behind bars.
They say a commitment to the poor is the measure of the soul of
a city or town. It seems in this town, case and matter, there
was no soul. The question should be does a commitment to prison
for this extensive amount of time (overkill as the public
defender said) benefit anyone or does it clearly cause much
harm?
Attachment
'The makers of
our Constitution undertook to secure conditions favorable to the
pursuit of happiness. They
recognized the significance of man's spiritual nature, of his
feelings and of his intellect.
They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things.
They sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations.
They conferred, as against the Government, the right to
be alone--the most comprehensive of rights and the right most
valued by civilized men. To
protect that right, every unjustifiable intrusion by the
Government upon the privacy of the individual, whatever the
means employed must be deemed a violation of the Fourth
Amendment.' >
Id., at 478, 48 S.Ct. 564.
And he added:
'Decency, security and liberty alike demand that government
officials shall be subjected to the same rules of conduct that
are commands to the citizen.
In a government of laws, existence of the government will
be imperiled if it fails to observe the law scrupulously.
Our Government is the potent, the omnipresent teacher.
For good or for ill, it teaches the whole people by its
example. Crime is
contagious. If the
Government becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it invites
anarchy. To declare
that in the administration of the criminal law the end justifies
the means--to declare that the Government may commit crimes in
order to secure the conviction of a private criminal--would
bring terrible retribution.
Against that pernicious doctrine this Court should
resolutely set its face.' >
Id., at 485, 48 S.Ct. 564. In Alderman v. United States we read:
'Adversary
proceedings are a major aspect of our system of criminal
justice. Their
superiority as a means of attaining justice in a given case is
nowhere more evident than in those cases, such as the ones at
bar, where an issue must be decided on the basis of a large
volume of factual materials, and after consideration of the many
and subtle interrelationships which may exist among the facts
reflected by these records.
As the need for adversary inquiry is increased by the
complexity of the issues presented for adjudication, and by the
consequent inadequacy of ex parte procedures as a means for
their accurate resolution, the displacement of well-informed
advocacy necessarily becomes less justifiable.
'Adversary
proceedings will not magically eliminate all error, but they
will substantially reduce its incidence by guarding against the
possibility that the trial judge, through lack of time or
unfamiliarity with the information contained in and suggested by
the materials, will be unable to provide the scrutiny which the
Fourth Amendment exclusionary rule demands.
It may be that the prospect of disclosure will compel the
Government to dismiss some prosecutions in deference to national
security or third-party interests.
But this is a choice the Government concededly faces with
respect to material which it has obtained illegally and which it
admits, or which a judge would find, is arguably relevant to the
evidence offered against the defendant.'> 394 U.S. 183-184,
89 S.Ct. 961
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