State v. Richared E. Ladue, 168 A.3d 430

Background

Officer Weinisch investigated a late-night hit-and-run and traced the involved Honda to defendant's mother's driveway; he saw defendant exit the vehicle and asked if anyone else had driven the car, to which defendant said "no."
Officer observed indicia of intoxication, administered field sobriety tests and a PBT (.150), arrested defendant, and later processed a breath test (.122); defendant signed a form reflecting statements he made during processing.
At trial defendant, his mother, and his cousin testified the cousin—not defendant—had driven; defendant denied having told police he drove the car at the scene.
Defense moved in limine to preclude HGN testimony by the officer; the State agreed but the officer briefly referenced HGN at trial; the court admitted other sobriety evidence.
The prosecutor elicited testimony on redirect that neither defendant nor his family contacted police in the months after the incident claiming someone else was driving; defense objected under Doyle/Miranda principles.
Jury convicted defendant of DUI; defendant appealed challenging (1) HGN testimony admission, (2) testimony about post-arrest silence, (3) prosecutor's opening/closing remarks, and (4) the court's reasonable-doubt wording.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of HGN reference despite motion in limine	State: brief reference harmless given other sober evidence	Dooley: officer not qualified; reference violated pretrial ruling and prejudiced defendant	Harmless error; HGN mention had negligible strength and State's impairment evidence was strong, so conviction stands
Testimony that defendant never told police someone else drove (post-arrest silence)	State: question rehabilitated officer after cross-examination and probative because defendant had made inconsistent post-arrest statements	Defendant: eliciting/using post-Miranda silence violated Doyle and due process	Not reversible error; Doyle distinguishable because defendant waived Miranda and made inculpatory statements inconsistent with trial defense; any error harmless beyond a reasonable doubt
Prosecutor statements in opening/closing about defendant's failure to tell police	State: comments rebut defense theory and focus jury on credibility; defense opened door earlier	Defendant: comments improperly used silence to imply guilt and were prejudicial	No plain error; statements permissible impeachment/rebuttal given context and evidence, and did not deprive defendant of a fair trial
Reasonable-doubt instruction wording ("great certainty" vs "utmost certainty")	Defendant: instruction diminished burden of proof and was structural error requiring reversal	State: instruction acceptable; Court previously upheld same language	Rejected; court relied on controlling precedent (State v. Levitt) and affirmed conviction

Key Cases Cited

Doyle v. Ohio, 426 U.S. 610 (1976) (prosecution may not use post‑Miranda silence to impeach due process violation)
Wainwright v. Greenfield, 474 U.S. 284 (1986) (using post‑Miranda silence as substantive proof in case in chief is especially egregious)
Anderson v. Charles, 447 U.S. 404 (1980) (Doyle does not bar cross‑examination about prior inconsistent post‑Miranda statements)
Jenkins v. Anderson, 447 U.S. 231 (1980) (prearrest silence may be used to impeach; different treatment from post‑Miranda silence)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless‑error standard for constitutional errors)
State v. Mosher, 143 Vt. 197 (1983) (Vt. court found use of post‑Miranda silence in case in chief error; not harmless)
State v. Kinney, 190 Vt. 195 (2011) (harmless‑error framework for evidentiary constitutional errors)
State v. Levitt, 202 Vt. 193 (2016) (upheld the same reasonable‑doubt instruction language challenged here)