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State v. Ladue

Supreme Court of Vermont

April 7, 2017

State of Vermont
Richard E. Ladue

         On Appeal from Superior Court, Chittenden Unit, Criminal Division Kevin W. Griffin, J. (motion to suppress and dismiss); Michael S. Kupersmith, J. (final judgment)

          Thomas Donovan, Jr., Chittenden County State's Attorney, Benjamin Chater and Christopher C. Moll, Deputy State's Attorneys, and Devin Ringger, Law Clerk, Burlington, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          DOOLEY, J.

         ¶ 1. Defendant appeals his conviction for driving under the influence (DUI), arguing that: (1) the State's principal witness testified on a matter that violated the trial court's pretrial ruling granting defendant's motion in limine; (2) the court erred in overruling defendant's objection to the prosecutor eliciting testimony from the State's principal witness that defendant never reported to police that he was not driving his vehicle on the night in question; (3) the prosecutor made several impermissible statements during his opening statement and closing argument regarding defendant's failure to inform police that he was not the driver; and (4)in attempting to define the term "reasonable doubt, " the court diminished the constitutional burden of proof imposed on the State, thereby committing structural error that requires reversal of defendant's conviction. We affirm.

         I. Facts and Procedural History

         ¶ 2. With some notable exceptions, the facts are largely undisputed. At approximately 11:05 p.m. on January 27, 2014, Officer Richard Weinisch was dispatched to a residence in Burlington to investigate a report of a hit-and-run accident. A woman at the residence reported hearing a crash and seeing a late 1990s silver-colored Honda with loud exhaust backing away from a Subaru wagon that had been damaged. After looking for the Honda, Officer Weinisch returned to the scene of the accident and observed a silver Honda parked nearby. The witness to the accident identified the vehicle as the one involved in the accident. Officer Weinisch ran the license plate number through dispatch, identified defendant as the registered owner, and proceeded to defendant's listed address.

         ¶ 3. When Officer Weinisch arrived at that residence, he spoke to defendant's mother, who informed him that defendant was not home. Officer Weinisch left the residence, but as he was entering his patrol car parked across the street, he observed the same silver Honda turn into the driveway of the residence. Officer Weinisch proceeded up the driveway on foot as the car pulled into a parking space at the end of the driveway to the left, close to the rear of the residence. According to Officer Weinisch's trial testimony, the first question he asked defendant, in investigating the hit-and-run accident, was whether anybody else had driven his car that night, to which defendant replied, "no." Officer Weinisch did not notice any visible damage to the car, and defendant denied any knowledge of the accident.

         ¶ 4. During the conversation, Officer Weinisch observed that defendant's eyes were bloodshot and watery and that there was a strong odor of alcohol emanating from his breath. Upon inquiry, defendant advised the officer that he had consumed three alcoholic drinks earlier in the evening. Suspecting that defendant was impaired, Officer Weinisch asked him to perform field dexterity exercises, to which defendant agreed. Based on his experience and training, the officer concluded that defendant did not successfully perform the exercises. Defendant then agreed to submit a preliminary breath test (PBT), which revealed a blood-alcohol concentration (BAC) of .150, nearly double the legal limit. At that point, Officer Weinisch arrested defendant and brought him to the police station for DUI processing, where at 12:45 a.m. defendant produced a breath sample indicating a BAC of .122.

         ¶ 5. During the processing interview, defendant stated that he drove his vehicle from the site of the hit-and-run accident into the driveway of his mother's residence, where he was confronted by Officer Weinisch. Defendant signed a form acknowledging that he made those statements to the interviewing officer.

         ¶ 6. On February 11, 2014, defendant was charged with DUI, first offense. Defendant filed a motion to suppress, claiming that there was no legal basis for the stop that resulted in his arrest for DUI. Following an April 16, 2014 hearing, the trial court denied the motion. A jury trial was held on May 21, 2014. At the trial, defendant, his mother, and his cousin all testified that defendant's cousin, and not defendant, was driving defendant's car on the night in question. Following the presentation of evidence, the jury found defendant guilty. Defendant moved for a new trial, arguing that two questions the jury posed to the trial court after it retired to deliberate indicated that it had switched the burden of proof from the State to defendant. The court denied the motion and later sentenced defendant to six-to-twelve months incarceration, all suspended, with a probationary term under special conditions.

         II. Testimony Concerning the Horizontal Gaze Nystagmus Test

         ¶ 7. Defendant first argues that the State's principal witness, Officer Weinisch, testified about a matter in violation of the trial court's grant of defendant's pretrial motion in limine, and that the testimony prejudiced him. We conclude that any error in admission of the testimony was harmless.

         ¶ 8. On the morning of the trial, defense counsel stated that she had some motions in limine, the first of which was to preclude Officer Weinisch from testifying about the horizontal gaze nystagmus (HGN) test that he had given defendant "because he's not qualified as an expert to do so." The State responded, "That's fine, " and the court stated, "Okay." Later, during the direct examination of Officer Weinisch, the prosecutor asked the officer what he did after he observed that defendant exhibited indicia of intoxication, to which the officer replied: "The first thing I did was the horizontal gaze nystagmus test in the driveway." The prosecutor immediately asked the officer what other tests he had defendant perform, at which point the testimony focused on the other two field dexterity exercises and defendant's poor performance of those exercises. The prosecutor later asked Officer Weinisch if he formed an opinion as to defendant's level of intoxication based on his observations of defendant and defendant's performance of the exercises. The officer stated that he believed defendant to be over the legal limit to operate a vehicle, but that, to "elaborate further . . . I'd have to refer to the HGN, which I believe we're not doing."[1]

         ¶ 9. Defendant argues that this testimony, particularly this last response by Officer Weinisch, constituted reversible error because a BAC above .08 creates only a permissible inference of impairment, see 23 V.S.A. § 1204(a)(2), and does not preclude a jury from relying on other evidence to find impairment, id. § 1204(b). We find no reversible error. State v. Kinney, 2011 VT 74, ¶ 6, 190 Vt. 195, 27 A.3d 348 ("[E]rror in the admission of evidence does not compel reversal of a criminal conviction where it is clear beyond a reasonable doubt that the error was harmless, considered in light of the strength of the State's case apart from the offending evidence and the strength of the offending evidence itself.").

         ¶ 10. In this case, the offending evidence had virtually no strength at all, while the State's evidence of defendant's impairment was very strong. Although it was the State's burden to prove impairment beyond a reasonable doubt, defendant did not challenge the notion that he was impaired, instead focusing exclusively on his claim that he was not driving his car. For its part, the State presented substantial, unchallenged evidence as to defendant's impairment. Officer Weinisch testified that defendant's eyes were bloodshot and watery and that a strong odor of alcohol emanated from his breath. The officer also testified, without objection, as to defendant's failure to successfully perform two field dexterity exercises. Moreover, defendant's evidentiary breath sample was well over the legal limit. Given this evidence of impairment, Officer Weinisch's brief referral to the HGN test, even given the suggestion that the results of the test indicated impairment, was harmless beyond a reasonable doubt.

         III. Testimony Concerning Defendant's Silence Before Trial

         ¶ 11. Next, defendant argues that the trial court erred in overruling his objection to the prosecutor's final question on redirect examination of Officer Weinisch, which elicited a response that defendant never contacted police regarding his claim that he was not the driver on the night in question. Again, we conclude that any error in the admission of this testimony was harmless, if error at all.

         ¶ 12. The exchange at issue was as follows:

PROSECUTOR: And one final question, Officer. In the three months following this investigation, did the defendant or any of the defendant's friends or relatives, ever call you or the Burlington Police Department, to your knowledge, to indicate that somebody else was driving that night?
DEFENSE COUNSEL: Your Honor, I'm going to object with this question as it respects [defendant], as I believe it suggests to the jury that he had some obligation, which-
DEFENSE COUNSEL: -under the Fifth Amendment, he does not have.
THE COURT: No, the objection is overruled.
PROSECUTOR: Can you answer the question?
OFFICER WEINISCH: So at no point in time from the beginning of my investigation that night through today, did anybody including defendant ever tell me that he was not driving that vehicle.

         ¶ 13. In a one-paragraph argument, defendant asserts that admission of evidence of his silence was error, citing the U.S. Supreme Court's decision in Doyle v. Ohio, 426 U.S. 610 (1976) and this Court's reliance on that decision in State v. Mosher, 143 Vt. 197, 465 A.2d 261 (1983). This due process claim is made pursuant to the Fifth and Fourteenth Amendments of the U.S. Constitution, [2] and thus federal law, and most particularly U.S. Supreme Court case law, is controlling.

         ¶ 14. We conclude that defendant's reliance upon Doyle and Mosher is misplaced, given the circumstances of the instant case. But before examining the relevant case law, we emphasize two points. First, as we explain in detail in considering defendant's third argument challenging statements made by the prosecutor during his opening statement and closing argument, the State was aware that the defense witnesses, including defendant, were going to testify at trial that defendant was not driving his car on the night in question. Second, although the challenged testimony technically came in during the State's case in chief, it was admitted on redirect examination, essentially to rehabilitate the principal witness, Officer Weinisch, following defendant's cross-examination of the officer. Cf. State v. Chambers, 144 Vt. 377, 380, 477 A.2d 974, 977 (1984) (concluding that where defense counsel cross-examined prosecution's witness about letter witness had written to defendant and used statements in letter to impeach witness, defense opened door for prosecution to rehabilitate its witness through redirect examination); State v. Settle, 141 Vt. 58, 62, 442 A.2d 1314, 1316 (1982) ("Whatever effect the cross-examination may have had on the jury in weakening the impact of [the witness's] initial identification [of the defendants], the State was properly allowed on redirect, in the discretion of the trial judge, to meet what had been developed on cross-examination, to explain away any tendency to discredit [the witness] that may have been accomplished.").

         ¶ 15. During the course of what amounts to twenty-three pages of transcript, Officer Weinisch testified on direct examination as to what occurred on the night in question, including that: (1) he told defendant's mother that defendant's car may have been involved in an accident and that defendant needed to call him so he could determine who, if anybody, had been driving defendant's car; (2) a few minutes later, as he walked up the driveway behind defendant's car, which had just pulled in, he lost sight of the front of the car for "two, three seconds"; (3) as he approached defendant's car, he observed defendant exiting the driver's seat from a seated position and saw no one else get out of the car; (4) the first thing he asked defendant-in connection with the reported accident and before he observed any indicia of intoxication-"was if anybody else had been driving his vehicle that night"; (5) defendant responded "no" to that question; (6) during the ensuing discussion, he observed indicia of intoxication, and his suspicion that defendant had been driving while intoxicated was confirmed by results of the field dexterity exercises defendant performed and the preliminary breath test defendant provided; (7) he then arrested defendant and advised him, among other things, that he had a right to remain silent and to speak to a lawyer; (8) defendant waived those rights and decided to speak to him; and (9) in response to questions on the DUI affidavit form defendant signed, defendant indicated that he had driven from the scene of the hit-and-run to his mother's home, where Officer Weinisch confronted him.

         ¶ 16. At no time during this direct examination of Officer Weinisch-the State's only witness other than a state chemist who testified about the breath test result-did the prosecutor question the officer as to whether defendant had ever informed police after his arrest and DUI processing of his claim that his cousin had actually been the driver of the car.

         ¶ 17. On cross-examination, defense counsel immediately attacked Officer Weinisch's reliability and credibility as to who was driving defendant's car that night. Defense counsel got Officer Weinisch to acknowledge that he could not see who was driving the car while it was moving up the driveway toward the parking area behind the house.[3] The following exchange then occurred:

Q: Okay. And you did lose sight of the vehicle, I believe you said for a matter of two or three seconds?
A: I did.
Q: Okay.
A: Just the passenger compartment of the vehicle. I could still see the . . . trunk area of the vehicle. But . . . I could not see the doors of the vehicle.
Q: So you don't really know whether [defendant] was the only person in the car.
A: No. I do.
Q: Well, you said that you couldn't see the whole vehicle and you lost sight of most of the vehicle for two to three seconds.
A: Two or three seconds, while the vehicle was pulling into a parking spot.
Q: So you don't know what happened during those two or three ...

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