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State v. Russo10/8/2004
Defendant, Vito Russo, was convicted by a jury of aggravated assault, unlawful trespass, driving under the influence of intoxicating liquor, driving with license suspended and four violations of conditions of release. He received a sentence of twenty-one years to serve. He appeals both his conviction for aggravated assault [FN2] and his combined sentence claiming that: (1) the evidence does not support his conviction; (2) the trial judge wrongfully limited testimony from the sole defense witness; (3) the trial judge failed to charge simple assault and reckless endangerment as either lesser-included or lesser-related offenses; (4) the twenty-one year sentence was based on a pre-sentence investigation (PSI) report containing a psychological evaluation conducted by a non-expert who was unavailable for cross-examination; and (5) trial counsel was ineffective. [FN3] Having considered those issues preserved for appeal, we affirm the conviction.
FN2. His notice of appeal includes the convictions for aggravated
assault, unlawful trespass, DUI and DLS, but his arguments on appeal go solely to the conviction for aggravated assault. His arguments related to the sentence theoretically relate to all components of the aggregate sentence for all the offenses.
FN3. Some of these issues were raised by counsel for defendant; others by defendant in a pro se brief. The unpreserved arguments that follow in the text were all raised in defendant's pro se brief.
2. In addition to the claims considered in this appeal, defendant, in his pro se brief, raises ten other arguments, not properly preserved for appeal. Defendant alleges that: (1) the rifle found in his car was the fruit of an illegal search; (2) the trial court allowed the State's witnesses to testify based upon hearsay and speculation; (3) limitations on the scope of cross-examination violated defendant's right to confront the State's witnesses; (4) the prosecutor's friendship with the victim and involvement in an ongoing civil case where both the victim and defendant were parties constituted prosecutorial misconduct; (5) the random elimination of two non?designated alternate jurors constituted jury tampering; (6) key pieces of evidence were kept from the jury during deliberation; (7) the State failed to disclose the PSI report to defendant in a timely manner; (8) the State misrepresented and misapplied defendant's criminal record during sentencing; (9) no defense was permitted during sentencing; and (10) the jury was given an incorrect instruction regarding intent and voluntary intoxication. The record shows that none of these claims was preserved during proceedings in the trial court; issues not raised during trial cannot subsequently be raised on appeal. State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 25-26 (1993). [FN4] Accordingly, we do not consider these arguments, and now turn to the facts of the case.
FN4. Although defendant does not request that we do so, we can review unpreserved errors for plain error-that is "error so grave and serious that it strikes at the very heart of defendant's constitutional rights." Pelican, 160 Vt. at 538, 632 A.2d at 26 (quoting State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986)). Our review of defendant's alleged errors indicates that if any are errors, they do not rise to the level of plain errors.
3. In 1999, defendant purchased the Unique Motel and Gift Shop from John McKay under a payment plan where McKay retained the deed until defendant paid for the property in full. The two were close friends until a dispute arose regarding defendant's monthly payments. McKay foreclosed on the property, and defendant's family was subsequently evicted from the motel. On November 17, 2002, in the late afternoon, following the
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