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State v. Russo10/8/2004
eviction, defendant visited McKay with the intent to offer him $5000 for permission to reside in the motel with defendant's family through the holidays. According to McKay's testimony, he immediately demanded that defendant leave his property, and defendant responded by pointing a gun at him. McKay then fled in his plow truck, pursued by defendant in his standard transmission Dodge Colt. Defendant fired four shots in McKay's direction, while the two vehicles dodged in and out of traffic, passing residences, businesses and the state police barracks. The chase continued for five miles, until McKay pulled into the Brattleboro Police Station, followed by defendant, who was arrested by officers on the scene.
4. After a jury trial, defendant was convicted of repeatedly firing the rifle at McKay while driving his vehicle under the influence of alcohol. Although defendant maintained his innocence throughout the trial, defense counsel's main argument was that defendant lacked the capacity to form intent due to intoxication and diminished mental state resulting from the eviction and his family's financial problems. Defendant's fiancée, whom he has since married, was the defense's only witness. She testified that on November 17, 2002, prior to visiting McKay, defendant was drunk, walking in circles and mumbling to himself. To make its case, the State presented McKay's testimony, testimony of two of McKay's tenants who claimed to have heard gun shots fired, testimony of the police officers who interviewed McKay and arrested defendant, the bolt-action rifle found in defendant's car, and four empty shell casings.
5. After he was convicted, defendant was sentenced by the superior court judge to fifteen to twenty-one years to serve on the multiple convictions. [FN5] During the sentencing hearing, the State presented a PSI report containing a psychiatric evaluation. Defendant argued then, and reiterates during this appeal, that the evaluation was prepared by a non-expert who was not available for cross-examination. The judge initially ruled that it was defense counsel's obligation to subpoena the evaluator, but ultimately decided not to rely on the evaluation. Other factors contributing to defendant's twenty-one year sentence included prior offenses and that the incident occurred while defendant was subject to a court order forbidding any contact with McKay.
FN5. The main part of the sentence was twelve to fifteen years for the aggravated assault. For the DUI and DLS convictions, the court added consecutive sentences of one to two years for each offense. For each of the four violation of condition of release convictions, the court added a consecutive sentence of three to six months to serve.
6. Defendant first contends that his conviction is against the weight of the evidence and the trial judge should have directed a judgment of acquittal. Defendant argued at trial, as he does here, that the conduct for which he was convicted was physically impossible. He asks us, in this appeal, to consider whether it is possible for him to fire a bolt-action rifle multiple times while driving a standard transmission vehicle, given that both tasks require the use of two hands. Additionally, defendant points out that the State's case lacks the plethora of witnesses that one would expect when shots are fired on a public road in a prolonged car chase during the late afternoon, passing residences, businesses and the state police barracks.
7. The jury was in the best position to determine whether the alleged conduct was physically possible and whether the alleged events took place. This Court does not substitute its own findings of fact for those of the jury. See State v. Turner, 2003 VT 73, 7, 175 Vt. 595, 830 A.2d 122 (mem.) (noting that acq
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