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-
THE COURT: No-
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 ...