State of Vermont v. Jason L. Gagne
No. 14-451
Supreme Court of Vermont
June 10, 2016
2016 VT 68 | 148 A.3d 986
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
22. We therefore conclude that the trooper‘s conduct was reasonable and not in violation of the Fourth Amendment or Article 11. This is not to suggest that a warrantless entry into an attached structure without doors is always constitutionally permissible, a question we do not reach here. The warrantless entry into this structure was permissible because it was reasonable under these facts for the officer to conclude the doorway inside the structure was an entrance for the public to use to access the home. See, e.g., Tracht, 592 N.W.2d at 865 (finding officers’ entry through open garage door to conduct knock-and-talk at service door no different than entering porch to knock on door to house and thus not in violation of Fourth Amendment).
Affirmed.
¶ 1. Robinson, J. This appeal stems from a road rage incident in St. Albans in which defendant Jason Gagne chased a couple across town, eventually pulling up next to their truck and pointing a rifle at them. Before trial, defendant moved to suppress the results of his alcohol breath test on the ground that he was not able to meaningfully communicate with his lawyer before submitting to the test due to his belief - which turned out to be well-founded - that his conversation with counsel was being recorded by the police. The trial court denied the motion, and following a trial, a jury convicted defendant of aggravated assault, simple assault, reckless endangerment, driving under the influence, and negligent operation of a vehicle. On appeal, defendant argues that the trial court erred by denying his motion to suppress, failing to instruct the jury that the definition of “threat” for the purposes of aggravated assault and simple assault is based on an objective standard, and allowing convictions for aggravated assault, simple assault, and reckless endangerment for the same conduct, in violation of defendant‘s double jeopardy rights. We reverse the trial court‘s ruling on the suppression motion and reverse and remand defendant‘s conviction for driving under the influence; uphold the trial court‘s jury instructions; and affirm the aggravated assault and reckless endangerment convictions, but vacate the simple assault conviction on double jeopardy grounds.
¶ 2. The evidence, viewed “in the light most favorable to the State as the prevailing party,” State v. McCarthy, 2012 VT 34, ¶ 12, 191 Vt. 498, 48 A.3d 616, is as follows. Complainants are an elderly couple. At trial, wife testified that on December 29, 2013, she and her husband left their home to drive in their truck to Wal-Mart. As the couple was traveling, defendant, who was driving a sedan, pulled out from the street to their right and made a left-hand turn in front of them. Wife, who was driving, slammed on her brakes to avoid a collision and honked her horn. Defendant “flipped [wife] the bird,” and continued on his way in the opposite direction of the couple.
¶ 3. After continuing on, wife noticed in her rearview mirror that defendant had returned and was driving close behind the truck. When they stopped at an intersection, defendant pulled up
¶ 4. Still on their way to Wal-Mart, the couple traveled a few car lengths before defendant reappeared close behind their truck‘s bumper. Wife described defendant as angry with large eyes. She was “scared to death” and phoned the police. The couple stayed on the line with the 911 dispatcher throughout the rest of the incident.
¶ 5. After passing through several lights, the couple stopped at an intersection and defendant pulled next to them in the right-hand turn lane. At that point, wife saw defendant point a gun toward her husband. The gun, which wife described as a rifle with a silver scope, was laid across defendant‘s left arm and held by his right hand. Wife testified that defendant had “malice in his eyes” and that she thought both she and her husband were going to die because of defendant‘s demeanor and constant “dogging” of the couple. When the light turned green, wife was relieved to see defendant taking the right-hand turn.
¶ 6. When the couple arrived at the turn for Wal-Mart, defendant once again appeared right behind the couple close to the truck‘s bumper. After entering the parking lot, the couple made a U-turn, and drove out of the parking lot back onto the main road, heading toward the St. Albans Police Department. At the next light, defendant again appeared behind the couple, and wife saw the gun briefly before defendant put it on the passenger side of his car. Once the couple entered downtown St. Albans, they turned towards the St. Albans police station and the police apprehended defendant.1
¶ 7. Officer Paul Morits was the arresting officer. He testified that when he approached defendant‘s car after stopping him in a parking lot, he saw a gun on the seat and two empty beer bottles. Officer Morits ordered defendant from the vehicle, handcuffed him, and had defendant stand next to the police cruiser. While defendant was standing next to the police cruiser, Officer Morits noticed alcohol on defendant‘s breath and noticed that defendant was unbalanced on his feet. Defendant was transported to the St. Albans police station.
¶ 8. Defendant‘s suppression motion arises from events at the police station when defendant was processed for driving under the influence (DUI). In connection with that motion, the trial court made the following findings, which defendant does not challenge on appeal. The standard practice in the St. Albans Police Department is to record DUI processing, but to turn off the recording device when a defendant is given a chance to consult with an attorney. In this case, when defendant was about to speak to his his attorney by phone, Officer Morits left the room, but forgot to turn off the recording device. As a consequence, defendant‘s conversation with counsel was recorded. Officer Morits did not disclose to defendant that the processing was being recorded. Defendant never asked the officer if he was being recorded, but throughout the booking process, defendant repeatedly stated “it‘s all being recorded,” and further stated “I have no rights.” Just prior to his telephone conversation with an attorney, defendant stated “I want to talk to a public defender, but I know what they will say . . . it doesn‘t matter, everything is being recorded anyway.” Officer Morits did not respond to defendant‘s repeated statements that he knew that everything was being recorded, and defendant did not specifically request that the police turn off the recording device.
¶ 9. After a thirty minute conversation between defendant and counsel, Officer Morits returned and told defendant that his time with his attorney had ended. Officer Morits asked defendant if he would submit to a breath test, and defendant agreed. Defendant‘s breath sample resulted in a blood-alcohol concentration (BAC) of 0.121%.
¶ 10. Defendant moved to suppress the breath test results, arguing that defendant‘s belief that his conversation with counsel was being recorded caused him to feel inhibited in seeking legal advice.
¶ 11. The trial court disagreed and denied defendant‘s motion. The court noted that
¶ 12. In considering the parties’ arguments, we consider first the applicable standard of review, and then the merits.
¶ 13. With respect to the standard of review, we reject the State‘s argument that the trial court‘s ruling was based on a factual finding subject to deferential review. When reviewing a motion to suppress, “we review the trial court‘s legal conclusions de novo and its findings of fact under a clearly erroneous standard.” State v. Oney, 2009 VT 116, ¶ 11, 187 Vt. 56, 989 A.2d 995. The State argues the trial court‘s ruling was based on a credibility finding - namely, the court did not believe defendant‘s testimony that he felt inhibited. Our reading of the trial court‘s decision, however, leads us to conclude that the trial court ruled that even if defendant believed he was being recorded and even if he personally felt inhibited, his belief was not reasonable. That conclusion is a legal conclusion that we review anew, without deference. See, e.g., State v. Weisler, 2011 VT 96, ¶¶ 18-20, 25, 190 Vt. 344, 35 A.3d 970 (holding in context of consent to search, trial court‘s conclusion regarding whether reasonable person in defendant‘s circumstances would feel free to refuse officer‘s request to search subject to nondeferential review); State v. Muntean, 2010 VT 88, ¶ 20, 189 Vt. 50, 12 A.3d 518 (noting in context of whether defendant was in custody for purposes of Miranda warnings that trial court‘s determination regarding circumstance surrounding interrogation and whether reasonable person would feel at liberty to leave subject to nondeferential review).
¶ 14. Turning to the substance of defendant‘s argument, when the police unjustifiably monitor a defendant‘s conversation with counsel, and thereby limit the defendant‘s ability to meaningfully engage with counsel, that conduct violates
¶ 15. In assessing defendant‘s claim that a lack of privacy caused him to feel inhibited in engaging with counsel, we apply an objective test. West, 151 Vt. at 145, 557 A.2d at 876. We look at the totality of the circumstances and ask “how a reasonable person in the defendant‘s position would have understood [the] situation.” Id. at 145, 557 A.2d at 877.
¶ 16. Our analyses in two prior decisions make it clear that the critical question in a case like this - involving the recording of a defendant‘s communications with counsel or a defendant‘s belief that the police are recording those communications - is whether the defendant reasonably felt inhibited in communicating with counsel such that he or she was denied meaningful consultation with an attorney. See Sherwood, 174 Vt. at 27, 800 A.2d at 463; State v. Powers, 2004 VT 39, ¶ 7, 176 Vt. 444, 852 A.2d 605. In Sherwood, the defendant was arrested for DUI and was given an opportunity to speak with a lawyer before deciding whether to take a breath test. However, unbeknownst to the defendant, the entire conversation was video and sound recorded. When the defendant learned of the video recording, he sought dismissal of his charges on the basis that the secret recording violated
¶ 17. In Powers, the defendant was arrested and processed for DUI. During processing, the defendant asked the interviewing officer if the conversation was being recorded either by audio or video, and the officer told the defendant yes as to both. After the officer read the defendant his rights under
¶ 18. In reaching our conclusion, we noted that Powers presented the mirror image of Sherwood. Specifically, we noted that, in contrast to Sherwood, in Powers, the defendant reasonably believed he was being recorded, despite the officer turning off the recording equipment. Powers, 2004 VT 39, ¶ 9. Further, we found the defendant did not have a meaningful consultation with counsel because he testified that he felt inhibited by that conversation. Id. ¶ 10. That inhibition was objectively reasonable, as evidenced by the fact that even the state‘s attorney conceded that under similar circumstances, he would feel inhibited. Id. We therefore concluded that “the perceived monitoring caused [the] defendant to feel inhibited from asking his attorney questions,” warranting suppression of his refusal to submit to the breath test. Id. ¶ 13.
¶ 19. This case is closer to Powers than it is to Sherwood, and we conclude on the basis of the trial court‘s factual findings
II. Jury Instructions
¶ 20. On appeal, defendant challenges the trial court‘s instructions relating to the aggravated assault charge as well as the simple assault by physical menace charge. Because the court‘s instructions concerning these respective charges were different, and given the possibility that the two arguments on appeal are subject to different standards of review, we review each challenge separately.
A. Aggravated Assault
¶ 21. In instructing the jury on the aggravated assault charge, the trial court listed four essential elements to the crime: (1) defendant; (2) was armed with a deadly weapon; (3) threatened to use the deadly weapon; and (4) intended to threaten the complainants. In further defining the third element, the court explained, “To threaten another person is to communicate by word or by deed an intention to inflict harm on the other person.” The trial court described the fourth element as follows:
The last essential element is that [defendant] intended to threaten another person. The State must have proven that [defendant] placed another person in fear of imminent bodily injury and that that [defendant] did not act inadvertently, because of mistake, or by accident. In order for you to find that [defendant] acted intentionally, you must find that it was his conscious objective to threaten another person.
¶ 22. On appeal, defendant argues that the trial court erred in failing to instruct the jury that a threat is evaluated from the perspective of a reasonable person and not on the basis of whether the complaining witnesses felt threatened.2 In considering the instructions, we review the charge as a whole to determine whether the instruction conveys the “true spirit and doctrine of the law, and there is no fair ground to say the jury has been misled by it.” State v. Streich, 163 Vt. 331, 353, 658 A.2d 38, 53 (1995) (quotation and citation omitted). We will reverse based on faulty instructions only if the instructions, viewed in this light, “undermine confidence in the jury‘s verdict.” State v. Kolibas, 2012 VT 37, ¶ 11, 191 Vt. 474, 48 A.3d 610 (quotation omitted).
¶ 23. Defendant is correct that whether conduct amounts to a threat is generally discerned from the perspective of a reasonable person under similar circumstances. In State v. Cahill, 2013 VT 69, 194 Vt. 335, 80 A.3d 52, we considered the definition of “threat” under the aggravated assault statute. The defendant in that case was angry that his neighbor‘s farmhand was spreading manure too close to the defendant‘s property. He strode onto the field armed with a .45 pistol and stopped about twenty-five yards from the farmhand‘s truck. “[The] [d]efendant then cocked a shell into his pistol and pointed it at the farmhand for a few seconds before turning the pistol to the right and firing it toward the woods.” Id. ¶ 3. At the defendant‘s trial for aggravated assault, the farmhand testified that when the defendant pointed the gun at him he “was pretty much looking down the barrel,” but that the defendant‘s actions did not cause him fear. Id. ¶ 5. On appeal, we affirmed the trial court‘s aggravated assault instruction. Of significance to this case, we noted that the trial court‘s instruction defining threat “correctly directed the jury to measure the effect
¶ 24. Defendant is also correct that in a portion of its spoken instruction concerning the intent element of the aggravated assault charge, the trial court improperly required the State to prove “that [defendant] placed another person in fear of imminent bodily injury,” rather than focusing the jury on the effect of defendant‘s words or deeds on a reasonable person in similar circumstances. But we conclude that any error in this portion of the court‘s aggravated assault instruction is harmless in the context of the overall instruction and given the record in this case.
¶ 25. We reach this conclusion for several reasons. First, in the aggravated assault instruction, in defining “threaten,” the trial court explained, “[t]o threaten another person is to communicate by word or by deed an intention to inflict harm on the other person.” This instruction did not tie the definition of “threaten” to the effect of the communication on the individual allegedly threatened by defendant, but instead described a characteristic of the communication - its conveying an intent to inflict harm - as a necessary element of the charge. Nothing in the court‘s instruction suggests that the determination of whether a communication conveys such an intent is a subjective one that turns on the victim‘s perception. See State v. Jones, 2008 VT 67, ¶ 23, 184 Vt. 150, 955 A.2d 1190 (“If the jury charge as a whole breathes the true spirit and doctrine of the law, we will uphold it.“). While the court‘s oral instruction that the State had to prove that defendant placed another person in fear of imminent bodily injury may have imposed on the State a burden it did not in fact bear, the errant oral instruction did not purport to relieve the State of proving that defendant communicated an intent to inflict harm.
¶ 26. Second, as set forth below, the court‘s instruction concerning simple assault by physical menace required the State to prove (1) that defendant attempted to put another person in fear of imminent serious bodily injury, and (2) “a threat, by word or act, to inflict physical injury upon another person.” The court expressly noted that the State did not have to prove that the victim actually was in fear of serious bodily injury, so nothing about this instruction suggested that the subjective effect of defendant‘s
¶ 27. Third, the court‘s written instructions, which it distributed to the jury before it orally charged the jury, did not contain the improper language directing the jury‘s attention to the victims’ subjective reaction of fear. Instead, the written instructions properly directed the jury to consider defendant‘s intent to place another in fear of serious bodily injury.
¶ 28. And finally, defendant‘s argument of prejudice requires a view of the evidence that strains credulity. Defendant argues that he was prejudiced by the court‘s failure to specify that in assessing a threat - an expression of “an intention to inflict harm on the other person” - the jury should consider the perspective of a reasonable person to whom the communication is directed, and not necessarily the subjective experience of these complainants. Even if the court‘s omission was error, defendant was only harmed if a reasonable jury could conclude on this evidence that defendant‘s following the couple through town and pointing a gun at them while next to them at a stop light would not cause a reasonable person to fear imminent bodily harm. We understand defendant‘s argument that due to the height of the truck windows as compared to the car, any subjective fear the complainants felt was not objectively reasonable, but we cannot agree on this record that any reasonable jury could have concluded that a reasonable person would not feel threatened under the circumstances.
B. Simple Assault by Physical Menace
¶ 29. In instructing the jury on the elements of simple assault by physical menace, the court listed three elements: (1) defendant; (2) attempted to put another person in fear of imminent serious bodily injury; and (3) did so by using physical menace. With respect to the second element, the court explained that the State must prove that defendant acted with the conscious objective of putting another person in fear of imminent serious bodily injury, and that the State need not prove that the victim actually was in fear of serious bodily injury. The court defined “physical menace” as “a threat, by word or act, to inflict physical injury upon another person.”
¶ 31. In contrast to our review of the aggravated assault charge, we review defendant‘s objection to the simple assault instruction for plain error because defendant did not raise this objection to the simple assault instruction in his post-charge objection. See
¶ 32. The trial court‘s simple assault instruction does not constitute plain error, if error at all. In contrast to the component of the court‘s oral aggravated assault instruction noted above, nothing in the simple assault instruction suggested that the threatening character of defendant‘s conduct should be determined with reference to the victims’ subjective fear. In fact, the court clearly instructed just the opposite, explaining, “[t]he state need not have proven that the victim actually was in fear of serious bodily harm.” This was an accurate statement of the law. See State v. Jackson, 2008 VT 71, ¶ 16, 184 Vt. 173, 956 A.2d 1126 (noting in context of admissibility of evidence, statements by victim that victim himself felt fear are irrelevant to fear element contained in simple assault statute). Moreover, the instruction as a whole properly placed the focus on the objective character of defendant‘s words or acts - whether they conveyed an intent to inflict physical injury upon another person - rather than the reaction of the specific targets of those words or acts. The simple assault instruction did not amount to plain error.
III. Double Jeopardy
¶ 33. Defendant‘s final argument is that given the charges and jury instructions in this case, he cannot be convicted of aggravated assault with a deadly weapon, simple assault by physical menace,
¶ 34. The Double Jeopardy Clause provides that no person may “be subject for the same offence to be twice put in jeopardy of life or limb.”
¶ 35. When there is no explicit statement of legislative intent to impose multiple punishments, “we apply as a rule of statutory construction the test first enunciated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932).” State v. Ritter, 167 Vt. 632, 632, 714 A.2d 624, 625 (1998) (mem.). The Blockburger test seeks “to divine whether the legislature intended to punish two separate offenses or one.” Grega, 168 Vt. at 382, 721 A.2d at 458-59. We consider two offenses to be the same offense for double-jeopardy purposes unless each offense “requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304. If neither offense requires proof of a fact that the other does not, then a presumption arises that the Legislature did
¶ 36. Whether multiple convictions run afoul of double jeopardy limitations is a question of law that we review anew, without deference. Id. ¶ 11.
A. Aggravated Assault and Reckless Endangerment
¶ 37. Defendant argues that in order to convict him of both crimes, the State had to prove the following elements for both the aggravated assault charge and the reckless endangerment charge: (1) that defendant had a gun; (2) that defendant threatened to use the gun by pointing it towards another person; and (3) that when defendant pointed the gun at complainants he had the specific intent (or a lesser element of intent for the reckless endangerment charge) to threaten to use the gun. Accordingly, since both the aggravated assault and the reckless endangerment charges required proof of identical elements, defendant argues, the Blockburger test is not satisfied, and defendant cannot be convicted of both crimes.
¶ 38. We conclude that in this case each of these charges - aggravated assault and reckless endangerment - requires proof of an element not required for the other charge.
¶ 39. The aggravated assault charge requires proof of an intent to threaten others, but does not require any proof that defendant placed them in actual danger. The aggravated assault statute provides, “A person is guilty of aggravated assault if the person . . . is armed with a deadly weapon and threatens to use the deadly weapon on another person.”
¶ 41. As charged, litigated, and instructed in this case, the aggravated assault charge and the reckless endangerment charge each required an element of proof not required for the other charge. Although the reckless endangerment charge and the aggravated assault charge both relate to defendant‘s pointing a gun at the complainants, the court instructed that an essential element of the reckless endangerment charge in this case is that the firearm defendant pointed was operable and capable of causing death or serious bodily injury. See State v. Messier, 2005 VT 98, ¶ 9, 178 Vt. 412, 885 A.2d 1193 (noting that for conviction under
¶ 42. The parties agree that, as charged in this case, the simple assault count and the aggravated assault charge turn on the same elements, and that defendant cannot therefore be convicted of both aggravated assault and simple assault. Their disagreement lies in the proper remedy. Defendant argues that the appropriate remedy for this double jeopardy violation is to dismiss the greater charge. The State contends that since the jury found defendant guilty of both aggravated and simple assault, we should vacate the lesser simple assault conviction, and allow the aggravated assault conviction to stand. We vacate the simple assault conviction and affirm the aggravated assault conviction.
¶ 43. The Double Jeopardy Clause is designed to protect against three harms: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense imposed in a single proceeding. See Jones v. Thomas, 491 U.S. 376, 381 (1989). As the United States Supreme Court has noted, the interest protected in this third category of double jeopardy violations is “limited to ensuring that the total punishment . . . not exceed that authorized by the legislature.” United States v. Halper, 490 U.S. 435, 450 (1989), abrogated on different grounds by Hudson v. United States, 522 U.S. 93 (1997). Accordingly, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Hunter, 459 U.S. at 366.
¶ 44. Applying these principles to this case, given the State‘s position, the proper remedy is to vacate the simple assault conviction and affirm the aggravated assault conviction.3 The ensuing sentence on this greater charge cannot and will not exceed the total punishment for this offense authorized by the Legislature. See Thomas, 491 U.S. at 386 (upholding longer sentence with credit for time served as appropriate remedy to
The trial court‘s order denying defendant‘s motion to suppress the results of his alcohol breath test is reversed, his conviction for driving under the influence is vacated, and the case is remanded for further proceedings in connection with that charge. The convictions for aggravated assault and reckless endangerment are affirmed. The conviction for simple assault is vacated.