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State v. Gibney3/28/2003
. Defendant appeals from his conviction by jury on one count of first-degree murder, for which he received a sentence of fifty years to life. Defendant makes four claims on appeal: (1) the jury's guilty verdict was not supported by the evidence; (2) he was improperly prohibited from offering exculpatory evidence that other persons had the motive to kill the victim; (3) the court erred in failing to dismiss the case, or to impose an alternate sanction, because of the prosecution's destruction of possibly exculpatory notes taken by various police officers during their investigation; and (4) the court erred in concluding that defendant's sentence should be aggravated because the crime had multiple victims. We affirm the conviction, but reverse the sentencing decision and remand for resentencing.
. Defendant's first claim on appeal is that the guilty verdict is not supported by the evidence and thus the trial court erred in denying his motion for a judgment of acquittal. Because defendant was charged with first-degree murder, the State was required to prove beyond a reasonable doubt that defendant killed the victim, Sam Gendron, that he intended to do so, and that he did so deliberately and with premeditation. State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999); 13 V.S.A. § 2301. The evidence, taken in the light most favorable to the State and excluding any modifying evidence, must sufficiently and fairly support a finding of guilt beyond a reasonable doubt. See State v. Durenleau, 163 Vt. 8, 10, 652 A.2d 981, 982 (1994). The evidence "must be examined both for its quality and strength," and it cannot create a mere suspicion of guilt or leave guilt uncertain or dependant on conjecture. Id.
. This was an assassination. The victim was shot multiple times by a semi-automatic assault rifle while driving in his pick-up truck. One of the bullets blew away a portion of Gendron's scalp and skull; a portion of the skull was found on the ground near the truck. Thus, there is no dispute that whoever shot Gendron did so with intent to kill, deliberately and with premeditation. The only issue in the trial was whether the State proved beyond a reasonable doubt that defendant was the shooter.
. The State's case was strongest with respect to motive. In May, 1992, defendant assaulted Gendron, his supervisor, when they both worked for Blue Seal Feeds in Richford. Defendant was convicted of simple assault for this incident and, on June 2, 1992, he was fired from his job because of it. Defendant blamed Gendron for his discharge and threatened and harassed him thereafter. On one occasion defendant called Gendron a "dead man." Defendant told an investigating police officer that next time he would take care of Gendron and "blow his head off." The murder occurred on June 2, 1997, exactly five years after defendant was fired from his job.
. No one saw the murder, but up to a point, the State made a strong showing that defendant had the opportunity to commit the crime. Every day around 11 A.M., Gendron left work and drove home for lunch, proceeding in his pick-up truck up Hardwood Hill Road. On the day of the murder, he punched out of work at 11:36 A.M. and proceeded home, some ten minutes away by vehicle. He was shot from the side of the road as he proceeded up the hill. Neighbors called for an ambulance at 11:51 A.M.
. Numerous observers saw defendant standing along Hardwood Hill Road next to his blue Cadillac automobile, placing the times of observation at some point between 10:30 A.M. and 11:30 A.M. He smoked a number of cigarettes at this location and drank from a plastic Coca-Cola bottle. His location was approximately that from which the shots at Gendron were f
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