State v. Gemler

State v. Gemler (2002-530); 176 Vt. 257; 844 A.2d 757

2004 VT 3

[Filed 16-Jan-2004]
[Motion for Reargument Denied 11-Feb-2004]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                  2004 VT 3

                                No. 2002-530


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 3, Washington Circuit

  Robert Gemler	                                 September Term, 2003

  M. Patricia Zimmerman, J.

  Thomas M. Kelly, Washington County Deputy State's Attorney, Barre, for
    Plaintiff-Appellee.


  George H. Ostler and Christopher A. Dall of DesMeules, Olmstead & Ostler,
    Norwich, for Defendant-Appellant.

  PRESENT:  Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Allen, C.J. (Ret.),  Specially Assigned

       ¶  1.  AMESTOY, C.J.   In this appeal of his conviction for driving
  a motor vehicle while under the influence of intoxicating liquor, defendant
  claims the trial court erred in 1) denying defendant's pre-trial motion to
  suppress statements elicited from defendant while in circumstances that
  required Miranda warnings, and in consequently denying his motion to
  dismiss for lack of prima facie case; 2) admitting hearsay evidence highly
  prejudicial to defendant; and 3) in denying defendant's motion for a
  mistrial after a police officer testified about matters subject to
  exclusion pursuant to a motion in limine.  We affirm.
   
       ¶  2.  On July 11, 2000, at about 8:00 p.m., a Vermont State Police
  officer was flagged down by a motorist.  The motorist complained that a
  green Chevy truck with New Hampshire plates was being operated erratically
  on the northbound lane of I-89, between exits 9 and 10.   The police
  officer radioed the Waterbury Police Department, and passed along the
  complaint and the description of the vehicle.  The officer did not identify
  the informant.

       ¶  3.  Two police officers responded to the complaint, Waterbury
  officer Jason Billings, and Washington County Deputy Sheriff Scott
  Patterson.  Patterson, traveling south on I-89, saw the suspect truck
  traveling north.  He testified that the operator had dark hair and was
  wearing a pink shirt and a baseball cap, and that there was nobody else in
  the truck.  Patterson radioed Billings to look for the vehicle, as it was
  apparently leaving the highway at Exit 10, Waterbury.  At approximately
  8:13 p.m., Billings located a green Chevy truck with New Hampshire tags in
  the parking lot of the Holiday Inn in Waterbury.
   
       ¶  4.  When Billings entered the lobby, he found defendant talking
  to the clerk.  Billings asked defendant whether he was the owner of the
  green truck.  Defendant responded by asking the officer why he wanted to
  know.  When Billings told defendant about the complaint, defendant refused
  to answer whether he was the owner of the vehicle.  Billings noticed that
  defendant had trouble focusing, his speech was mumbled and slurred, and his
  eyes were watery and bloodshot.   Defendant also refused to produce
  identification.  Officer Patterson arrived at the hotel shortly thereafter. 
  He noted that defendant was wearing a pink shirt and had dark hair, like
  the person he had seen operating the truck.  Patterson detected a strong
  odor of alcohol coming from defendant and observed that he was unsteady. 
  Patterson warned defendant that he would be placed in custody if he did not
  provide identification.  Defendant then produced a driver's license.  In
  response to a question from an officer, defendant denied drinking and
  driving, stating, "I drove up and drank at [the hotel] bar."  Because the
  officers suspected defendant of operating the vehicle while intoxicated,
  defendant was asked to perform dexterity tests, which he failed.  Defendant
  was then taken into custody and transported to the Vermont State Police
  barracks for processing.  Although he refused to submit to an evidentiary
  test, defendant stated, "Off the record, I drove up from New Hampshire,
  stopped at a bar in White River, and had seven Budweiser beers.  I know
  that [you are] doing your job and you will get me."

       ¶  5.  After arraignment, defendant filed a motion to suppress and
  dismiss.  The court granted the motion to suppress the statements given
  while defendant was at the station, because, although apparently voluntary,
  the police officers were not present at the hearing to explain the
  circumstances in which the statements were made.  Defendant filed a second
  motion requesting the suppression of statements made while he was still at
  the Holiday Inn.  The trial court refused to suppress those statements,
  rejecting defendant's theory that an officer's request to a defendant to
  "produce identification or be placed in custody" escalated an investigative
  detention into a custodial interrogation.  The court also denied
  defendant's motion to dismiss for lack of a prima facie case, in which
  defendant argued that the State could not prove operation, holding that the
  statement "I drove up and drank at the bar" was sufficient evidence of
  operation.  At trial, defendant's theory of the case was that defendant's
  employee drove the truck to the hotel's parking lot, got in an unidentified
  woman's car, and left defendant alone in the truck.
   
       ¶  6.  Defendant first claims that the court erred in denying his
  motion to suppress the pre-arrest statements he made to the officers at the
  Holiday Inn because the statements were the fruit of an unlawful
  interrogation.  According to defendant, when police officers gave him an
  ultimatum to produce identification or be arrested, they placed him "in
  custody."  Defendant asserts that subsequent questioning regarding whether
  he had been drinking and driving, without giving him the requisite
  warnings, constituted a violation of defendant's Fifth Amendment rights
  under Miranda v. Arizona, 384 U.S. 436 (1966).

       ¶  7.   Police can stop and briefly detain a person to conduct an
  investigation if an officer has reasonable suspicion of criminal activity. 
  Terry v. Ohio, 392 U.S. 1, 23-24 (1968).  "Although there is no bright-line
  test for distinguishing between a stop and an arrest, it is useful to look
  at a number of factors in determining the reasonableness of an
  investigative stop, including the time, place, duration, and degree of
  intrusiveness of the stop."  State v. Caron, 155 Vt. 492, 500, 586 A.2d 1127, 1132 (1990).  "A brief stop of a suspicious individual, in order to
  determine his identity or maintain the status quo momentarily while
  obtaining more information, may be most reasonable in light of the facts
  known to the officer at the time."  Adams v. Williams, 407 U.S. 143, 146
  (1972).   Once the police have stopped an individual, the investigating
  officer needs to have some additional recourse to obtain information,
  especially the individual's identity; otherwise the investigative stop
  would serve no purpose.  See United States v. Jones, 759 F.2d 633, 642 (8th
  Cir. 1985).    
   
       ¶  8.  Although defendant vigorously asserts that the trial court's
  failure to apply Miranda to the facts of this case "flies in the face of
  Fifth Amendment jurisprudence," we discern no error in the trial court's
  reasoning.  As we have recently observed, the United States Supreme Court's
  particular concern in Miranda was with "'incommunicado interrogation of
  individuals in a police dominated atmosphere.'"  State v. Garbutt, 173 Vt.
  277, 282, 790 A.2d 444, 448 (2001) (quoting Miranda, 384 U.S. at 445). 
  While the Supreme Court has acknowledged that, for example, most motorists
  would not feel free to leave the scene of a traffic stop without the
  investigating officer's permission, "persons temporarily detained pursuant
  to such stops are not in custody for the purpose of Miranda absent some
  showing that they were subjected to restraints comparable to those
  associated with a formal arrest."  State v. Lancto, 155 Vt. 168, 171, 582 A.2d 448, 449 (1990) (internal quotations omitted).  Moreover, one can be
  detained by the police, not be free to go, but still not be in custody for
  Miranda purposes.  Garbutt, 173 Vt. at 283, 790 A.2d at __.

       ¶  9.  We have held that a suspected drunk driver who had been
  involved in an accident was not in custody when a police officer told him
  to take a seat in the police cruiser, and then proceeded to question him
  regarding his alcohol consumption.  State v. Lancto, 155 Vt. at 170-72, 582 A.2d  at 448-50.  We  noted that "the stop was routine and the detention was
  brief.  Only one officer was involved, and the interrogation was conducted
  in a public highway."  Id. at 172, 582 A.2d  at 450.  Defendant attempts to
  distinguish this case from Lancto arguing that "there is substantially more
  police presence in the present case."  While it is true that in Lancto
  there was only one police officer and here there were two, the distinction
  is not significant, particularly considering that in Lancto the suspect was
  placed in a police cruiser, a more imposing and police dominated space than
  the public lobby of a hotel, where the encounter was witnessed by hotel
  employees.  See Berkemer, 468 U.S.  at 438-39 ("This exposure to public view
  both reduces the ability of an unscrupulous policeman to use illegitimate
  means to elicit self-incriminating statements and diminishes the motorist's
  fear that, if he does not cooperate, he will be subjected to abuse."). 
  Therefore, Miranda warnings were not needed, and the statements were
  properly admitted to prove operation.  There was no error in the denial of
  the motions to suppress and dismiss.
   
       ¶  10.  Defendant next argues that the trial court erred in expanding
  the scope of testimony allowable regarding the information provided by the
  anonymous informant.  Defendant claims that evidence of the anonymous
  informant's complaint about a green Chevy truck with New Hampshire plates
  was hearsay and that its admission was highly prejudicial and an
  infringement upon defendant's right of confrontation.  In a preliminary
  suppression hearing, the State argued that the purpose of the evidence was
  first, to explain the reasons for the search for the vehicle, and second,
  to put in context the interaction with defendant at the hotel lobby, where
  Officer Billings asked defendant whether he was the owner of the truck. 
  The motion judge denied in part the motion to suppress.  The judge
  characterized the statement as hearsay, "on the other hand admissible to
  show why the law enforcement did what they did."  To attain what the court
  considered "a fair balancing," and with the understanding that both parties
  agreed on this point, the court excluded the tip details about erratic
  driving, allowing only a reference to "a complaint by an unidentified
  person." Immediately before trial, in response to the State's motion, a
  second judge allowed the statement to include the description of the
  vehicle and its registration number.  The court noted its ruling was not an
  expansion, but rather an interpretation of the intended limits of the
  suppression, stating that without the description "there's absolutely no
  reason why anybody would know how law enforcement decided to do what they
  did when they did it."  We find no error in the admission of the
  information.
   
       ¶  11.  We will reverse a trial court's decision to admit evidence
  only if the court withheld or abused its discretion.  State v. Powers, 163
  Vt. 98, 100, 655 A.2d 712, 713 (1994).  "'Hearsay' is a statement, other
  than one made by the declarant while testifying at the trial or hearing,
  offered in evidence to prove the truth of the matter asserted."  V.R.E.
  801(c).  The statements at issue here were not offered for their truth, but
  to explain the officers' conduct and their interaction with defendant, and
  are therefore admissible.  See State v. Beattie, 157 Vt. 162, 166, 596 A.2d 919, 922 (1991) (statement by motorist that a driver was "asleep, passed
  out, or even dead" at the wheel not hearsay because it was offered to
  explain the police officer's approach to the vehicle, not that the driver
  was asleep or passed out);  State v. Bernier, 157 Vt. 265, 269, 569 A.2d 789, 791-92 (1991) (police officer's questions were admissible to put
  responses into context).  

       ¶  12.  Defendant's argument that admission of these statements
  constituted a violation of his right to confront the declarant has no
  merit.  The Confrontation Clause preference for a face to face
  confrontation at trial is to allow the jury to determine the witness
  credibility, possible bias, and ability to recall.  See State v. Carroll,
  147 Vt. 108, 111, 513 A.2d 1159, 1161 (1986);  State v. Towne, 142 Vt. 241,
  247, 453 A.2d 1133, 1135-36 (1982).  Because the statement was not
  introduced for the purpose of proving the truth of the matter asserted, but
  to explain the police conduct, the credibility of the informant was not at
  issue.  Therefore, defendant's Sixth Amendment rights were not affected by
  the admission of the testimony.  

       ¶  13.  Defendant  further argues that the statements should have been
  excluded under V.R.E. 403 because their prejudice substantially outweighed
  their probative value.  Although relevant, evidence may be excluded if its
  probative value is substantially outweighed by the danger of unfair
  prejudice.  V.R.E. 403.  The trial court has discretion in conducting this
  balancing, and its rulings will not be reversed absent a showing of an
  abuse of that discretion.  State v. Cartee, 161 Vt. 73, 75, 632 A.2d 1108,
  1110 (1993).  On appeal, the burden falls upon defendant to show that the
  court's discretion was either withheld or exercised on clearly unreasonable
  grounds.  State v. Shippee, 2003 VT 106  13, 14 Vt. L. Wk Vt. 353.  We find
  no abuse of discretion in the trial court's decision and further observe
  that, while the statement's probative value is clear, its prejudicial
  effect is unclear, considering that defendant's defense at trial was that
  somebody else was operating the vehicle.

       ¶  14.  Defendant's final claim is that the trial court erred in
  denying defendant's motion for mistrial when - despite the court's initial
  ruling that excluded that part of the citizen's complaint - Officer
  Patterson testified that the complaint concerned erratic driving:

    Q. About eight o'clock that night . . . did you have a report that
    led later to your contact with defendant, Robert Gemler?
    A. Yes. I received a report of a BOL, which is a be on lookout,
    which was issued by the Vermont State Police dispatcher, for a
    green Chevy truck with New Hampshire registration, heading
    northbound on Interstate 89 between Exits 9 and 10, and the
    vehicle was operating erratically." 

       ¶  15.   The officer's mention of the erratic driving prompted the
  defense's motion for a mistrial.  After allowing the defense to voir dire
  the officer, the court denied the motion.  The court reasoned that the
  question that elicited the testimony was a "fairly foundational one," that
  revealed no bad faith on the prosecution's part.  The court exercised its
  discretion, finding that the statement did not rise to the level of
  prejudice, because the statement referred to erratic driving and the
  asserted defense was that defendant was not operating at all.

       ¶  16.  The trial court has discretion in ruling upon a mistrial
  motion.  State v. Mears, 170 Vt. 336, 345, 749 A.2d. 600, 607 (2000).  This
  discretion is not abused unless the court entirely withholds it, or
  exercises it upon grounds that are clearly untenable or unreasonable.  Id. 
  In order to constitute reversible error, "it must appear affirmatively that
  a denial of the motion has resulted in prejudice to the moving party, with
  the burden of proof being on the movant."  State v. Covell, 142 Vt. 197,
  199, 453 A.2d. 1118, 1119 (1982).  Whether the moving party was prejudiced
  depends on the facts and circumstances of each case, and therefore we
  review the denial of the motion within the context of the entire
  proceedings.  Id. 
   
       ¶  17.  We agree with the trial court that under the circumstances of
  this case, the statement does not rise to the level of prejudice that would
  require a mistrial.  The trial court's decision noted that the statement
  was inadvertent and not elicited in bad faith.  Moreover, as the trial
  court further observed, a report that the vehicle was being operated
  erratically could not be said to prejudice defendant, in light of his
  defense that he was not operating the vehicle.
  Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice