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State v. McEachin

Supreme Court of Vermont

May 24, 2019

State of Vermont
Treyez L. McEachin

          On Appeal from Superior Court, Chittenden Unit, Criminal Division, Nancy J. Waples, J. (motion to suppress and dismiss and motion for reconsideration); Dennis R. Pearson, J. (judgment)

          Sarah George, Chittenden County State's Attorney, Andrew McFarlin and Zachary J. Chen, Deputy State's Attorneys, Burlington, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, Rebecca Turner, Appellate Defender, and Anna Saxman and Amanda E. Quinlan, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

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

          ROBINSON, J.

         ¶ 1. Defendant Treyez McEachin was convicted of three charges pursuant to a conditional plea that preserved his right to appeal the denial of his motion to suppress and dismiss. Defendant was charged with disorderly conduct based on fighting or violent, tumultuous, or threatening behavior, as well as resisting arrest and simple assault on a police officer. He argues that because his conduct in walking toward a police officer was not disorderly, the disorderly-conduct charge should be dismissed. He contends that because the officer then wrongfully prolonged their encounter, all evidence of his subsequent conduct, including his assault of the officer well after he was taken into custody, should be suppressed, and the assault charge should be dismissed. We agree that the disorderly-conduct charge should be dismissed, and accordingly reverse the denial of the motion to dismiss that charge. We affirm the denial of the motion to suppress the evidence underlying the assault charge, and affirm that conviction.

         ¶ 2. The evidence presented at the hearing on defendant's motion to suppress and dismiss, viewed in the light most favorable to the State, is as follows. On New Year's Eve in 2016, four police officers were on foot patrol in Burlington when they received a report that a man was spitting on the window of a local bar. They went to investigate and found defendant outside the establishment. One of them, Officer Derek Hodges, said that defendant "was immediately verbally combative"[1] and called the officers "a death squad." They asked defendant what was going on, and defendant replied that he had been fired from his job. The officers asked defendant to leave, and he did.

         ¶ 3. Minutes later, defendant came walking down the sidewalk back toward the bar. Officer Hodges could not recall where defendant was initially looking, but said, "I believe we saw each other and made eye contact." Officer Hodges testified that defendant "changed his trajectory so he was walking directly towards me." He said defendant "was looking away from me . . . as if he was trying to . . . make it appear that he [wa]s not watching where he was going." Defendant came within four feet of Officer Hodges, and Officer Hodges put his arm out and pushed defendant back; Officer Hodges said that if he had not done so, they would have collided. Officer Hodges considered this "an officer safety issue" because of defendant's earlier behavior outside the bar. Officer Hodges said defendant looked surprised when he pushed him. Defendant stepped back and put his hands up. He exclaimed, "I was walking by." Officer Hodges replied that defendant had been in his personal space. Defendant told the officers he was going to his bus stop, which required continuing down the street past the bar. The officers ordered him not to go that way.

         ¶ 4. Defendant began yelling profanities. Officer Hodges said he told defendant to leave and "actually kind of turned my back to kind of try to end the encounter," but defendant stayed where he was. Officer Hodges testified that "[a]fter he refused to [leave] and he started using more profanities, that's when we decided to take him into protective custody." At the hearing, Officer Hodges said that he considered defendant's yelling "tumultuous," but that he did not observe any behavior by defendant that would indicate defendant might physically injure someone or become violent.

         ¶ 5. As the officers put defendant into a cruiser, he made his body go limp. He was charged with resisting arrest for this conduct.[2] Sometime after defendant was taken into custody, he kicked a police officer.[3]

         ¶ 6. Defendant was charged with disorderly conduct, simple assault, and resisting arrest. He moved to suppress all evidence following the push and order not to walk by the bar, arguing that they constituted an illegal stop and seizure without which none of his behavior that formed the basis for the three charges would have occurred. He also argued that the disorderly-conduct charge should be dismissed because there was insufficient evidence to support it. The State countered that no illegal stop or seizure occurred: The temporary detention of the push was justified because it would have been reasonable for Officer Hodges to believe he was in danger when defendant walked toward him, and the officers had a reasonable basis to keep defendant from walking by the bar. As to the disorderly-conduct charge, the State argued that "there is sufficient evidence that the second interaction with the officers, taken in its entirety, did constitute disorderly conduct by tumultuous behavior" because "[t]he combination of coming directly towards Ofc. Hodges and nearly colliding with him and the violent verbal outburst made the defendant's conduct tumultuous."

         ¶ 7. The trial court held that Officer Hodges was justified in pushing defendant as an act of self-defense, but the officers had no reasonable basis to order defendant to avoid walking by the bar. It suppressed defendant's statements made in response to the officers' order to avoid the bar, reasoning that the statements were the result of the officers having wrongfully prolonged their encounter with defendant. The State did not challenge that suppression ruling on appeal. With respect to the disorderly-conduct charge, the trial court concluded that, even excluding the suppressed evidence concerning defendant's verbal outburst following the order to go around the bar, the evidence that defendant had walked toward Officer Hodges in such a manner that they nearly collided was sufficient to support the disorderly-conduct charge. The trial court did not directly address the assault charge, but by limiting its suppression order only to the statements defendant made during the exchange following his encounter with Officer Hodges, rather than extending it to everything that happened thereafter, the court essentially allowed the State to proceed with that charge.

         ¶ 8. Defendant moved for reconsideration, arguing that the suppressed statements had provided the basis for the disorderly-conduct charge, and without evidence of those statements, the charge should be dismissed. The court denied the motion, reasoning that defendant's move toward Officer Hodges could support the charge.

         ¶ 9. Defendant and the State subsequently entered into a conditional plea agreement pursuant to which defendant pled no contest on all three charges and could appeal the trial court's findings and orders regarding his motion to suppress and dismiss. See V.R.Cr.P. 11(a)(2).

         ¶ 10. On appeal, defendant renews his argument that the disorderly-conduct charge should be dismissed, arguing that his behavior could not be characterized as fighting, violent, tumultuous, or threatening, as the statute requires. He also argues that because the trial court found that the officers unlawfully prolonged the stop, it should have suppressed ...

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