State of Vermont v. Jeffrey R. Kinney
No. 09-265
State of Vermont
July 22, 2011
2011 VT 74 | 27 A.3d 348
Prеsent: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 17. The Environmental Court lacks jurisdiction to consider the relief plaintiff pursues. Plaintiff has no private zoning enforcement action available to her because there is no violation of an existing zoning decision. The earlier 2005 decision of the DRB to approve the building permit for the back parcel did nothing to affect the validity of the Nordlund right-of-way — as plaintiff concedes here. In addition, the approval did not compel exclusive use of the Van Nostrand right-of-way to gain access to the baсk parcel. The Environmental Court has no jurisdiction because there is no violation of a zoning decision respecting defendants’ property or use of the rights-of-way in question.
Affirmed.
Opinion Filed July 22, 2011
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.
¶ 1. Dooley, J. A jury convicted defendant Jeffrey Kinney of driving while intoxicated, third offense, and attempting to elude an officer while operating a vehicle. On appeal, defendant argues: (1) the trial court erred in admitting defendant‘s refusal to take a preliminary breath test; (2) the prosecutor, in closing, impermissibly injected personal opinion about defendant‘s credibility and commented on defendant‘s failure to testify; and (3) the State failed to introduce sufficient identity evidence to support the verdict. We affirm.
¶ 2. The facts may be summarized as follows. A Bennington police officer was patrolling in his cruiser at about ten o‘clock at night when he observed an all-terrain vehicle (ATV) being driven on the street in Bennington. Although it was dark, the officer was able to observe the driver, whom he recognized as defendant from prior contacts and from his knowledge that defendant owned that particular model of ATV.
¶ 3. As the ATV sped away, the officer followed with his blue lights flashing and siren sounding. The officer testified that he saw a profile of the operator‘s face when the ATV made a turn onto another road and again when the ATV fishtailed, and that there was sufficient illumination to observe that it was defendant. At trial, the prosecution played a video recording of the pursuit taken by a fixed camera located on the officer‘s cruiser. The camera, activated when the blue lights are turned on, is located near the rearview mirror and films straight ahead from its mounted position. Although the State later acknowledged that the video, with its “grainy, dark” image, did not offer a good view of the ATV operator, the officer agreed that he “[got] a better look at the [ATV] at that intersection than what [could be seen] on the video” from its fixed position.
¶ 4. The ATV ultimately went over an embankment and the police pursuit continued on foot. Another officer testified that he
¶ 5. Defendant was asked at the scene to take a preliminary breath test (PBT) but declined. A later-administered Datamaster test measured defendant‘s blood alcohol level at .208 and .221, indicating levels of .232 and .245 — three times the legal limit — at the time of operation. The jury returned a verdict of guilty on the charges of driving while intoxicated, third offense, and attempting to elude, and defendant was subsequently sentenced to two to five years imprisonment. This aрpeal followed.
¶ 6. Defendant first contends the court erred in admitting the investigating officer‘s testimony that defendant declined to submit to the PBT. The State maintains that the claim was not properly preserved and that the evidence was admissible in any event. Whatever the merits of these arguments, we conclude that the testimony was harmless beyond a reasonable doubt, and therefore provides no basis for reversal. As we have often held, error 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. State v. Kulzer, 2009 VT 79, ¶¶ 16-17, 186 Vt. 264, 979 A.2d 1031. Both factors compel affirmance here.
¶ 7. The officer testified that he was able to see the ATV driver on more than one occasion during the pursuit and was certain of defendant‘s identity; this evidence was unequivocal. That the surveillance videotape from the camera on top of the officer‘s cruiser failed to show the driver as clearly as the officer‘s visual observations does not seriously undermine this testimony, as the evidence showed that the camera‘s perspective was stationary and the officer‘s was not. Thus, the officer‘s best view of the driver occurred when the ATV slowed and took a sharp turn and the
¶ 8. Even apart from eyewitness identification, the circumstantial evidence was compelling. The ATV matched the one owned by defendant; the officer‘s description of the driver‘s clothing matched that worn by defendant; and defendant was found with the key to the ATV in his pocket. Defendant‘s claims that another person was driving the ATV and that he was attending a bonfire had no evidentiary support beyond defendant‘s mere assertion. In short, the evidence identifying defendant as the driver was overwhelming. A limited videotape and a claim that the real drivеr was a third man who was never found do not undermine this conclusion.
¶ 9. As noted, in assessing whether any error was harmless, we must view the strength of the proper evidence in relation to the strength of the evidence claimed to be inadmissible. The evidence in dispute consisted of a brief question and answer in the middle of the investigating officer‘s extensive trial testimony. The subject was not mentioned again in the testimony of the remaining witnesses, and neither party brought it up in closing argument. Thus, considered in the context of the trial as a whole, and the substantial evidence of guilt, the testimony was clearly harmless beyond a reasonable doubt, and does not warrant reversal of the judgment. See State v. Curavoo, 156 Vt. 72, 75, 587 A.2d 963, 965 (1991) (holding that introduction of evidence of defendant‘s refusal to take PBT was harmless error, if error at all, because “the remaining evidence overwhelmingly establish[ed]” the required elements of the charge).
¶ 10. Defendant‘s remaining claims relate to the prosecutor‘s closing argument. He contends the prosecutor improperly injected his personal views of defendant‘s guilt during closing argument in stating that defendant “lied” to the police about several matters, including defendant‘s claim that a third person was the ATV operator. He also contends the prosecutor improperly commented on his right to remain silent in observing that defendant failed to “offer any explаnation as to where this third person had gone” or other details “about the identity and the whereabouts of this mystery third person.” Defendant acknowledges that he failed to object to any of the statements below, and that we review solely for plain error to determine whether the circumstances are so “exceptional [that] ... a failure to recognize error would result in
¶ 11. The alleged errors fall short of this exacting standard. Although we have cautioned against statements that might be construed as expressions of personal belief that the defendant was a liar, the brief stаtements at issue here were made in the context of a general and impersonal critique of the veracity of defendant‘s story. See State v. Gates, 141 Vt. 562, 567, 451 A.2d 1084, 1086 (1982) (observing that prosecutor‘s remarks went beyond permissible “general attack on veracity, consistency, or bias“). Indeed, there is nothing here to suggest that the prosecutor was expressing any personal view or belief in defendant‘s veracity. Rather, the record shows that the prosecutor simply compared defendant‘s statements made at the scene with the surrounding evidence to demonstrate the obvious incongruities: defendant claimed that a third individual was the driver but, as the prosecutor accurately noted, defendant did not explain “where this third person had gone,” and no third person was observed by the officer during the pursuit or was visible in the video recording; defendant claimed to be in the woods for a “bonfire” but no bonfire was found in the vicinity; defendant claimed that a friend had the key to the ATV when, in fact, the key was found in defendant‘s pocket. The prosecutor was relying on the evidence, not his personal beliefs, to characterize defendant‘s remarks. Cf. State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330, 333 (1987) (finding error in prosecutor‘s statements that “I think ... [complainant‘s] story ... is the truth” and “I believe the believable testimony here“).
¶ 12. Moreover, this was not a pure “credibility contest” between the defendant and his accuser, as in State v. Rehkop, 2006 VT 72, ¶ 12, 180 Vt. 228, 908 A.2d 488, where wе found that the prosecutor not only “blatantly” stated his personal belief that defense witnesses were lying, but also that his comments may also have affected the verdict. Id. ¶ 38; see also State v. Francis, 151 Vt. 296, 300, 561 A.2d 392, 394 (1989) (noting danger of prosecutor‘s personal expression of belief that defendant is lying where case turns strictly on credibility assessments). Here, as noted, the circumstantial evidence that defendant was the operator of the ATV was overwhelming, and we cannot conclude that any conceivable error in the prosecutor‘s remarks resulted in a miscarriage of justice.
Affirmed.
¶ 14. Johnson, J., concurring. I agree that, given these circumstances, the admission of the officer‘s testimony regarding defendant‘s rеfusal to submit to the preliminary breath test (PBT) was harmless. I write separately to emphasize my belief that the trial court committed error.1 I would hold that
¶ 15. The trial court, however, relied on our decision in State v. Blouin to rule that defendant‘s refusal was admissible. 168 Vt. 119, 716 A.2d 826 (1998). In Blouin, we held that evidence of a defendant‘s refusal to take the horizontal gaze nystagmus (HGN) test, a physical field sobriety test in which a police officer moves an object across the subject‘s field of vision to observe the manner in which the subject‘s eyes follow the object, was admissible. Id. at 122-23, 716 A.2d at 828. We stated that, barring any statute or rule of law requiring exclusion, evidence of a driver‘s refusal to perform a physical field sobriety test is probative of guilt, making it relevant and therefore admissible. Id. at 121-22, 716 A.2d at 828. Because there is statutory silence regarding physical sobriety tests like the HGN test and thus no statutory language prohibiting introduction of refusal evidence, we concluded that the defendant‘s refusal to perform the HGN test was admissible to
¶ 16. In Blouin, our decision to admit the HGN test refusal evidence relied heavily on the complete statutory silence surrounding physical field sobriety tests such as the HGN. Id. at 122, 716 A.2d at 828 (“[T]he [implied consent] statute is silent with respect to physical sobriety tests such as the HGN.“). Thus, we broadly concluded that “[i]n the absence of statutory language prohibiting introduction of the [HGN test] refusal evidence, we will not invent it.” Id. at 122-23, 716 A.2d at 828. Because the HGN test results are admissible, refusal to take the HGN test prevents relevant evidence from being admitted. See
¶ 17. In contrast, a specific statutory provision governs the use of preliminary breath tests.2 Section 1203(f) of Title 23 sets forth the purpose and procedure for PBTs:
When a law enforcement officer has reason to believe that a person may be violating or has violated
section 1201 of this title [by driving under the influence], theofficer may request the person to provide a sample of breath for a preliminary screening test .... The person shall not have the right to consult an attorney prior to submitting to this preliminary breath alcohol screening test. The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to request an evidentiary test and shall not be used in any court proceeding except on those issues.
¶ 18. As
¶ 20. The key distinction — ignored by our colleagues — between a PBT refusal and the Blouin case is that an individual who refuses a PBT does not prevent relevant substantive evidence from being admitted at trial because the statute prohibits any results from being introduced as substantive evidence of intoxication.3 It thus undercuts the statutory purpose to admit the refusal to take the nonevidentiary test and would be contrary to the
¶ 21. PBT refusal evidence would have particularly limited probative value when introduced to demonstrate consciousness of guilt because of both the variety of possible motivations for such a refusal and the multiple inferential steps required.4 See
statutorily inadmissible results. See State v. Ferm, 7 P.3d 193, 196 (Haw. Ct. App. 2000); Thompson v. State, 65 P.3d 534, 536 (Idaho Ct. App. 2003); State v. Sanchez, 2001-NMCA-109, ¶ 12, 36 P.3d 446. The one case cited allowing admission of a defendant‘s refusal to submit to a preliminary alco-sensor test involves a state statute that, in contrast to
23 V.S.A. § 1203(f) , specifically allows admission of a defendant‘s refusal to submit to state-administered chemical tests. See Crusselle v. State, 694 S.E.2d 707, 710 (Ga. Ct. App. 2010) (under statute in effect at that time). Although they purport to adhere to the statutory text, our concurring colleagues fail to reconсile allowing admission of the PBT refusal with the statutory prescription that the “results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to request an evidentiary test and shall not be used in any court proceeding except on those issues.”23 V.S.A. § 1203(f) .
unrelated to guilt.” Post, ¶ 30. The issue before us is whether it is fair to present a refusal to submit to a PBT as evidence of consciousness of guilt in the State‘s prima facie case when there are multiple reasons for a defendant to refuse to submit to this invasive test. It is the State‘s burden to prove that a defendant is guilty beyond a reasonable doubt — not the defendant‘s burden to prove that he is not guilty. The concurrence‘s solution improperly shifts that burden. Furthermore, it elevates the significance of the refusal over the significance of the test itself, which could lead the jury to elevate the refusal evidence beyond its probative value.
¶ 22. If we аllow admission of PBT refusals to prove consciousness of guilt, we have eviscerated the statutory prohibition on the admission of PBT results found in
¶ 23. I am authorized to state that Justice Skoglund joins this concurrence.
¶ 24. Reiber, C.J., concurring. I agree that the officer‘s testimony here concerning defendant‘s refusal to submit to the PBT had no effect on the verdict. Thus we need not — and do not — decide whether the evidence was admissible. Nevertheless, in light of the separate concurring opinion advocating exclusion of the evidence, I am compelled to state my views to the contrary.
¶ 25. The analysis begins, as always, with the statutory language. See State v. O‘Dell, 2007 VT 34, ¶ 7, 181 Vt. 475, 924 A.2d 87 (in discerning legislative intent we look first to the plain, ordinary meaning of the statutory language). The DUI statute at issue provides that the “results of [a PBT] may be used for the purpose of deciding whether an arrest should be made and whether to request an evidentiary tеst and shall not be used in any court proceeding except on those issues.”
¶ 26. Plain language to the contrary notwithstanding, it is asserted that admitting evidence of a suspect‘s refusal eviscerates the statute‘s underlying purpose. This is a claim that warrants close examination. We addressed the nature and purpose of PBTs in State v. McGuigan, explaining that they “are common tools in the investigatory kit officers use to ascеrtain whether probable cause exists to believe that an individual has been driving under the influence of alcohol.” 2008 VT 111, ¶ 14, 184 Vt. 441, 965 A.2d 511. Although the statute reflects a legislative judgment that a PBT‘s utility consists principally in its use as “a screening device” to determine whether more accurate testing is appropriate, id. (quotation omitted), we have recognized that their substantive inadmissibility “does not deprive them of all utility, but merely reflects a [legislative] determination that more sensitive measurements are easily available” for later use. State v. Orvis, 143 Vt. 388, 391, 465 A.2d 1361, 1362 (1983). Thus, we have held that the “results of a preliminary breath alcohol screening test which indicate impairment, although inadmissible as evidence, may alone provide the reasonable grounds to believe a person is under the influence of intoxicating liquor.” Id. at 391, 465 A.2d at 1363.
¶ 27. If — as both the Legislature and this Court have recognized — a PBT bears sufficient utility to establish probable cause to believe that a suspect has been driving while intoxicated, a suspect‘s refusal to submit to the test certainly implies some awareness that the test would reveal the suspect‘s intoxication, or, in other words, some “consciousness of guilt” of the offense relevant for admission at trial. Indeed, this was precisely our reasoning in State v. Blouin, where we considered the analogous situation of a suspect‘s refusal to perform an HGN test, a standard field sobriety test used for dеtermining probable cause to arrest for DUI. 168 Vt. 119, 716 A.2d 826 (1998). As we there explained, “inasmuch as defendant‘s refusal to perform the HGN test goes to consciousness of guilt, the refusal evidence is admissible.” Id. at 122, 716 A.2d at 828 (citation omitted); accord State v. Curavoo, 156 Vt. 72, 75, 587 A.2d 963, 965 (1991). Numerous other courts have reached the same conclusion. See, e.g., State v. Ferm, 7 P.3d 193, 204 (Haw. Ct. App. 2000) (observing that an “inference of consciousness of guilt” is a “reasonable and permissible inference[] from evidence of [a] refusal” to submit to field
¶ 28. It is claimed, nevertheless, that Blouin is distinguishable and indeed supports a contrary conclusion because the HGN test — unlike the PBT — is not statutorily inadmissible. The argument is not sustainable. Claims to the contrary notwithstanding, Blouin was not based on the absence of statutory language barring the admission of a suspect‘s HGN test; it was based on the absence of statutory language barring a suspect‘s refusal to submit to the test. As we explained: “In the absence of statutory language prohibiting introduction of the refusal evidence, we will not invent it.” Blouin, 168 Vt. at 122-23, 716 A.2d at 828. The statute at issue here contains no language prohibiting the admission of a suspect‘s refusal to submit to a PBT, and we should be similarly disinclined to invent it.
¶ 29. Our colleagues also maintain that Blouin is critically distinguishable because the reliability of an HGN test allows the fact finder to infer from a suspect‘s refusal that “the evidence gained from taking the test would be prejudicial,” ante, ¶ 16, whereas the purported unreliability of a PBT bars any such inference. Thus, they conclude that allowing evidence of a refusal would undermine the statutory purpose of preventing the PBT from being used substantively. As noted, however, its substantive inadmissibility “does not deprive [a PBT] of all utility, but merely reflects a determination that more sensitive measurements are easily available and therefore should be used.” Orvis, 143 Vt. at 391, 465 A.2d at 1362. Indeed, the PBT is sufficiently reliable and probative of intoxication that a result “which indicate[s] impairment, although inadmissible as evidence, may alone provide the reasonable grounds to believe a person is under the influence of intoxicating liquor” in violation of the DUI statute. Id. at 391, 465 A.2d at 1363 (emphasis added). It is therefore reasonable — and entirely consistent with the statute — to infer that a suspect‘s refusal to submit to a PBT indicates some concern that the test would reveal his or her intoxication and is therefore relevant and admissible to show consciousness of guilt.
¶ 31. The concurring opinion also notes that other state courts have barred the admission of PBT refusal evidence. The case lаw in this area, however, is not entirely uniform. See, e.g., Crusselle v. State, 694 S.E.2d 707, 710 (Ga. Ct. App. 2010) (holding that defendant‘s refusal to submit to preliminary alco-sensor test was “admissible as circumstantial evidence of intoxication and together with other evidence would support an inference that [defendant] was an impaired driver” (quotation omitted)). In any event, the cases cited merely repeat the arguments for exclusion discussed above, and are no more persuasive.
¶ 32. Therefore, if the issue were properly presented, I would hold that evidence of a refusal to submit to a PBT is not barred by
¶ 33. I am authorized to state that Justice Burgess joins this concurrence.