On Appeal from Superior Court, Addison Unit, Criminal Division, Robert A. Mello, J.
Gregory Nagurney, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.
Mark Eastman Furlan of Furlan & Associates, PLLC., Rutland, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1.This case calls upon us to consider the admissibility of evidence of defendant's decision not to complete a field sobriety exercise as requested by a police officer in the context of an answer to a question we left open in a prior decision: Under the Vermont Constitution, is a defendant's refusal or failure to perform voluntary field sobriety exercises admissible if the defendant was not advised at the time of the refusal that evidence of a refusal to perform the exercises may be admissible in court? We conclude that the refusal evidence is admissible without regard to whether police advised the individual that a refusal to perform the exercises could be admitted as evidence in court. Because we reject defendant's argument to the contrary on this point, as well as her arguments that on the record in this case the evidence in question was irrelevant and unduly prejudicial, we affirm.
¶ 2. The relevant background is as follows. Defendant was arraigned on charges of driving under the influence (DUI) pursuant to 23 V.S.A. § 1201(a)(2) ("A person shall not operate . . . any vehicle on a highway . . . when the person is under the influence of intoxicating liquor.").
¶ 3. Before trial, defendant filed a motion in limine seeking to exclude from evidence the arresting officer's testimony about his observations and opinion regarding defendant's performance of the "Modified Rhomberg Test" (MRT),  as well as the videotape of the event. Defendant had previously declined to perform field sobriety tests. Thereafter, at the officer's request, defendant began the exercise in question, which involved closing her eyes, leaning her head back, and counting thirty seconds. She stopped five to eight seconds later, indicating that she did not want to do the exercise. Defendant's written motion stated that the MRT evidence was irrelevant because the exercise was never completed and was thus unreliable, and that even if the evidence was marginally relevant, any probative value it had was substantially outweighed by the danger of unfair prejudice.
¶ 4. Argument on this motion overlapped somewhat with pretrial discussion of the court's proposed jury instructions. Defense counsel argued that telling the jury it could infer consciousness of guilt from defendant stopping the exercise but not allowing the jury to consider any number of other reasons why she may have stopped the exercise would be highly prejudicial. During the argument on this motion, defense counsel also suggested that defendant was told to take the test, and was not given an opportunity to refuse.
¶ 5. In response, the State emphasized it was not planning to present the interrupted MRT as a "test, " but rather as an exercise that led to the trooper's observations that defendant swayed briefly before stopping the exercise.
¶ 6. The trial court denied defendant's motion in limine and admitted the contested evidence. The trial court noted that this Court had held that a defendant's failure or refusal to do a voluntary field sobriety exercise is relevant as evidence of consciousness of guilt. See State v. Curavoo, 156 Vt. 72, 74-75, 587 A.2d 963, 964-65 (1991) (rejecting defendant's argument that trial court erred by allowing evidence of his refusal to perform field sobriety exercises). The trial court also noted, however, that this Court had specifically declined to reach the argument that, absent a warning that a refusal can be used against a defendant at trial, the refusal cannot be used in that way. Id. at 74 n.1, 587 A.2d at 964 n.1. With respect to the jury instruction, the trial court made it clear that it would instruct the jurors that, in addition to considering the possibility that defendant's decision to stop the test reflected consciousness of guilt, they could consider other explanations raised by the defense.
¶ 7. At trial, the state trooper who arrested defendant testified to the following facts. At approximately 9:20 in the morning of September 17, 2012, the trooper stopped defendant after observing that she was driving a car with an expired inspection sticker. Upon approaching the car and seeing signs that she was intoxicated, the trooper ordered defendant to get out of the car. When she did, the trooper observed three empty six-to-eight-ounce wine bottles on the floorboard of the car. Defendant admitted to the trooper that she had consumed the contents of those bottles that morning. When the trooper asked defendant to perform field sobriety exercises, she said she did not want to because she was old and had problems with her balance. The trooper testified that DUI suspects during roadside stops are not required to perform field sobriety exercises. After defendant declined to do field sobriety exercises, the trooper asked her to stand with her feet together, arms at her side, eyes closed, and her head tilted back while she counted the passage of thirty seconds. The officer testified that defendant started to do the exercise for a few seconds before opening her eyes and saying either that she could not, or did not want to, continue the exercise. He also testified that during the few seconds she attempted to perform the exercise she swayed before opening her eyes and stopping. The jury then watched a brief video recording of defendant attempting to perform the exercise. The trooper testified that he arrested defendant on suspicion of DUI on the basis of the above evidence.
¶ 8. Defendant neither testified nor presented any evidence.
¶ 9. Following the close of evidence, the trial court denied defendant's motion for judgment of acquittal. With no objection from the defense, ...