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State v. Sullivan

Supreme Court of Vermont

April 14, 2017

State of Vermont
Christopher Sullivan

         On Appeal from Superior Court, Rutland Unit, Criminal Division Theresa S. DiMauro, J.

          William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, [1] Robinson and Eaton, JJ., and Morris, Supr. J., (Ret.), Specially Assigned [2]

          EATON, J.

         ¶ 1. Defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting, in violation of 23 V.S.A. §§ 1201(a)(2) and 1210(f)(1), and leaving the scene of a fatal accident, in violation of 23 V.S.A. § 1128(a) and (c). On appeal, he challenges the trial court's jury instructions, admission of expert testimony, and denial of his motion for access to necessary services as a needy person pursuant to 13 V.S.A. § 5231(a)(2). We affirm defendant's convictions but remand the matter for resentencing based on our conclusion that the trial court abused its discretion by not continuing the sentencing hearing to allow defendant to present the testimony of his expert witness.

         I. Facts and Procedural History

         ¶ 2. The evidence when viewed in the light most favorable to the State established the following facts. On April 10, 2013, defendant consumed six or seven alcoholic beverages between the hours of five and seven forty-five in the evening. At seven forty-five, defendant drove south on Strongs Avenue in Rutland at a speed of between twenty-two and thirty miles per hour. It was dusk, and a light rain was falling. Also at this time, the victim, a seventy-one-year-old woman wearing a cream-colored coat and walking with the assistance of two canes, began crossing Strongs Avenue with a friend from east to west in front of the Palms Restaurant, having looked in both directions before starting across the street. The victim walked at an estimated pace of between one-and-one-half-to-three feet per second. She was not in a crosswalk and defendant's car came upon her before she was able to cross the road. Just before the car struck her, the victim's friend called out in warning and the victim turned and raised both of her canes. Without braking or swerving, defendant's car struck the victim in the travelled portion of Strongs Avenue. The victim was thrown onto the hood of defendant's vehicle and into the windshield before landing in the street. Defendant continued driving without slowing down. He later told police that he had no idea who or what he hit, that he panicked and was unsure what to do, and that he continued driving to the Hannaford's parking lot. When defendant got out of his vehicle he saw damage to the hood and a shattered windshield. His rear-view mirror was detached, and there were shards of glass on the passenger seat.

         ¶ 3. From the parking lot, defendant called his law partner, who informed him that an ambulance had arrived at the scene in front of the Palms Restaurant. In a subsequent phone call, defendant's partner informed him that the victim had been pronounced dead at the hospital as a result of blunt-force trauma to her torso. Defendant spoke to his law partner again later that night, as well as to defense counsel. He made no effort to contact the police that night. Defendant had planned to pick up his son, but instead called his son from the Hannaford's parking lot and told him, untruthfully, that he had been delayed by a work obligation.

         ¶ 4. The next day defendant went to the police station with his attorney to give a statement. He told police of his activities the preceding night, including the amount and time of his alcohol consumption. He also told police that he had been driving thirty miles per hour and did not see the victim in the street before the accident.

         ¶ 5. At trial, the State offered expert testimony from Trooper John Young of the Vermont State Police and Dr. David Nierenberg, a board-certified pharmacologist and toxicologist who focuses on drugs and medications. Trooper Young, who was the primary accident reconstructionist assigned to investigate the accident, offered testimony about his accident report. In that report, he made two calculations: one assuming a vehicular speed of twenty-two miles per hour, which he determined from surveillance video, and the other assuming a vehicular speed of thirty miles per hour, which was based on defendant's statement to police. Assuming that the victim was walking across Strongs Avenue at one-and-one-half-to-three feet-per-second, and assuming a reaction time of two-and-one-half seconds for nighttime or dimly lit driving conditions, Trooper Young concluded that if defendant had been alert and paying attention and had reacted appropriately, he would have been able to stop between 60 and 212 feet before the actual point of impact.

         ¶ 6. Dr. Nierenberg testified as to the effects of alcohol on the human body and brain. He testified that a moderate-to-heavy-drinking male of defendant's approximate weight, following the drinking pattern defendant provided to police, would have had a blood-alcohol content (BAC) of between 0.044 and 0.061 percent at the approximate time of the collision. He explained that this estimate was based on a male with the fastest metabolism, meaning that there was a ninety-nine-percent possibility that defendant's actual BAC would have been higher than Dr. Nierenberg's estimates. Dr. Nierenberg further testified that studies have shown that at a BAC of 0.04 percent, virtually every subject shows some degree of impairment, and that at a BAC of 0.06 percent, nearly every subject shows impairment in a clearly measurable amount.

         ¶ 7. Dr. Nierenberg opined that a person of defendant's weight and drinking pattern was likely under the influence of intoxicating liquor as defined by Vermont law-someone who had "lost full control of the faculties of mind and body, due to the effect of intoxicating liquor." He stated further that the failure to see a pedestrian, brake, steer away, or slow down after a very loud crash was indicative of someone who was not aware of their surroundings or their environment, and that the cause of such an accident was most likely impairment caused by alcohol in that person's system.

         ¶ 8. Defense counsel objected to Dr. Nierenberg's opinions, contending that they were outside the scope of his expertise because he was not an accident reconstruction expert. The trial court allowed the testimony, holding that the jury could accept or reject Dr. Nierenberg's opinion and that it did not "think this is the same as reconstructing how the accident occurred but why it occurred."

         ¶ 9. Defendant also objected to the trial court's jury instruction concerning the "death resulting" element of § 1210(f), set forth more fully below, and renewed his objection after the court read the jury charge.

         ¶ 10. Following the return of guilty verdicts on both counts, defendant moved for a new trial in part because of his claim that Dr. Nierenberg had testified beyond the scope of his expertise. The trial court denied the motion, stating that Dr. Nierenberg's testimony was not that of an accident reconstructionist but rather included logical inferences from the evidence presented at trial. The court held a sentencing hearing on July 30, 2015 after denying defendant's request for expert services at state expense and his motion for a continuance to allow presentation of the testimony of his expert at sentencing. Following the hearing, the trial court sentenced defendant to two concurrent four-to-ten-year terms to serve.

         ¶ 11. On appeal, defendant challenges: (1) the trial court's jury instruction on causation, which he argues allowed the jury to find him guilty even if it found that his intoxication did not cause the victim's death; (2) the admission of Dr. Nierenberg's expert testimony about the effects of alcohol and his opinion that defendant's intoxication caused the accident; and (3) the court's denial of defendant's request for necessary services for his sentencing hearing.

         II. Jury Instructions

         ¶ 12. The trial court's instruction on causation read as follows:

The last essential element is that [defendant's] operation of his motor vehicle while under the influence of intoxicating liquor caused the death of [the victim]. You must conclude that but-for [defendant's] operation of his motor vehicle while under the influence of intoxicating liquor [the victim's] death would not have occurred. The State must have proven that [defendant's] acts produced [the victim's] death in a natural and continuous sequence, unbroken by an efficient intervening cause. An efficient intervening cause would be an unexpected individual force that broke the connection between [defendant's] acts and the resulting death.

(Emphasis added).

         ¶ 13. Defendant contends that the trial court's instructions erroneously permitted the jury to find him guilty of causing the victim's death without finding that intoxication or impaired operation had any role in the accident. Specifically, defendant argues that 23 V.S.A. § 1210(f)(1) requires that the State prove that a defendant's intoxication was a but-for cause of the death of another person while the defendant operated a motor vehicle and that the jury instructions did not meet this requirement. Defendant suggests that, given the trial court's instruction on causation, a reasonable juror who concluded that the State had met its burden of proof that defendant was under the influence of intoxicating liquor could have also concluded that a conviction under § 1210(f)(1) required only that the State prove that the accident and the victim's death occurred simultaneously while defendant operated his vehicle under the influence.

         ¶ 14. We agree with defendant's assertion that the State must prove direct causation between the defendant's intoxication and the victim's death. See State v. Papazoni, 157 Vt. 337, 338-39, 596 A.2d 1276, 1276-77 (1991). We do not agree, however, that the challenged jury instruction allowed the jury to convict defendant without requiring the State to meet its burden of establishing that causation.

         ¶ 15. With respect to the requirements of the "death resulting" element, we interpret the statute without deference to the trial court. State v. Richland, 2015 VT 126, ¶ 6, 200 Vt. 401, 132 A.3d 702 (2015). When interpreting a statute, our goal is to effectuate the intent of the Legislature by first looking to the plain, ordinary meaning of the statute. State v. Wainwright, 2013 VT 120, ¶ 6, 195 Vt. 370, 88 A.3d 423 ("As we ...

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