State v. Roberge

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-111


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Jean Marc Roberge                            Unit No. 3, Orleans Circuit

                                             November Term, 1989


Shireen Avis Fisher, J.

Robin B. Heffner, Orleans County Deputy State's Attorney, Newport, for
   plaintiff-appellee

Walter M. Morris, Jr., Defender General, David Williams, Drug Defense Unit,
   and William A. Nelson, Appellate Defender, Montpelier, for defendant-
   appellant


PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Springer, D.J.
          (Ret.), Specially Assigned


     PECK, J.   Defendant appeals his conviction, following a jury trial, of
three motor vehicle violations:  operating a motor vehicle with a suspended
license in violation of 23 V.S.A. { 674, careless and negligent operation of
a motor vehicle in violation of 23 V.S.A. { 1091(a), and attempting to elude
a police officer in violation of 23 V.S.A. { 1133.  We affirm.
     On appeal, defendant argues that he was denied due process because the
jury was not sworn until after the prosecution rested and was discharged
before it announced a unanimous verdict on each of the three counts.
Defendant also argues that the State presented insufficent evidence at trial
to prove beyond a reasonable doubt that he operated his vehicle carelessly
and negligently.
                                    I.
     After the State rested and during a jury recess, the prosecutor
discovered that the court had not sworn the jury that morning when the trial
began.  The court swore them upon their return from recess.  Defense
counsel explicitly declined to object to the late swearing, and defendant
personally remained silent.  There is no evidence or allegation that the
jurors disregarded their obligations under the oath for criminal trials, or
of prejudice to the defendant because of the late swearing.
     We have held in a civil case that a party may waive the right to raise
the question of an improperly sworn or unsworn jury on appeal either
expressly or by proceeding with the trial with knowledge of the fact.  B & P
Rambler and Sports Car Center v. Dawson, 126 Vt. 392, 393, 233 A.2d 50, 51
(1967).  We now hold that, absent an objection or a showing of prejudice by
the delay in swearing, there is no reversible error where a jury is sworn
before deliberations in a criminal case.  See e.g., Cooper v. Campbell, 597 F.2d 628, 629 (8th Cir.) (jury sworn after opening statements of both
counsel did not prejudice defendant's right to a jury trial, fair trial, or
due process), cert. denied, 444 U.S. 852 (1979); U.S. v. Hopkins, 458 F.2d 1353, 1354 (5th Cir. 1972) (harmless error where jury sworn after
government's case-in-chief, no prejudice shown, and no objection made to
late swearing). (FN1) This ruling does not imply
     that the oath is unimportant or a mere formality.  To the
     contrary, the juror's oath is an essential element of the
     constitutional guarantee to a trial by an "impartial jury."  And
     if the oath were not given at all, we would have no hesitation in
     finding reversible error even absent any showing of actual
     prejudice.  Indeed, in the normal course of affairs, the oath must
     be given at the outset of the proceedings.

State v. Godfrey, 136 Ariz. 471, 473, 666 P.2d 1080, 1082 (1983).

                                     II.
     The jury retired to deliberate after being instructed on each of the
three counts.  When the jury returned, the court asked the foreman for "the
verdict."  The response was "Guilty, your Honor."  Both prosecution and
defense declined to poll the jury, whereupon the court thanked and excused
the jury.  The jury was outside the courtroom when the prosecutor informed
the court that a verdict had not been delivered on each of the three counts.
The court immediately called the jurors back.  Once the jury reassembled,
the court inquired as to the verdict on each count, and the foreman replied
"Guilty" for each one.  The court then polled the jury.
     Defendant did not object to the recall of the jury. Therefore, our
inquiry is limited to whether the alleged due process violation constitutes
plain error.  State v. Gilman, 145 Vt. 84, 88, 483 A.2d 598, 600 (1984);
V.R.Cr.P. 52(b).  To rise to the level of plain error, the "error must be
obvious and strike at the very heart of defendant's constitutional rights or
result in a miscarriage of justice if we were to fail to recognize it."
State v. Turner, 145 Vt. 399, 403, 491 A.2d 338, 340 (1985).
     The general rule is that a jury may not be reassembled after discharge
to amend a verdict.   While some states adopt a strict "bright line" test,
others have allowed the amended verdict, under limited circumstances, using
various guidelines or tests to ensure the integrity of the verdict. Compare
Perryman v. State, 102 Tex. Crim. Rep. 531, 278 S.W. 439 (1925) (jury could
not amend verdict where foreman asked judge to let jury reconsider almost
immediately after rendering verdict); Cook v. State, 60 Ala. 39, 31 Am. Rep.
31, 3 Am. Crim. Rep. 304 (1877) (jury could not be reassembled to render
verdict in presence of prisoner five minutes after rendered in his absence
even though the two jurors who had left courtroom swore they had conversed
with no one) with Summers v. United States, 11 F.2d 583 (4th Cir. 1926)
(allowed amended verdict, distinguishing merely formal discharge from
discharge in fact); Levells v. State, 32 Ark. 585 (1877) (jury could be
recalled to specify on which of two counts a verdict was entered).  Vermont
has been in the latter category since 1860.
     In Montgomery v. Maynard, 33 Vt. 450 (1860), the jury foreman
mistakenly filled in the form finding for the defendant, rather than
plaintiff, as the jury had intended.  After discharge, eleven of the jury
members met in the deliberation room, while one went to his hotel.  The only
conversation this juror had was with the tavern keeper, who asked what the
verdict was, and was told it was for the plaintiff.   Plaintiff's lawyer
informed the court of a possible mistake only five minutes after the jury's
discharge, whereupon the court reassembled the jury. The court directed them
to retire and correct the verdict if it were not already as they had
intended.  The jury corrected the verdict and delivered it to the court for
the plaintiff.  On appeal, this Court held that there appeared to be no
unfairness or injury by the course of action pursued.  Id. at 456.
     On the other hand, in Hopkin's Administratrix v. Stocker, 116 Vt. 98,
70 A.2d 587 (1950) (reported as Kennedy v. Stocker in 70 A.2d), this Court
remanded for new trial rather than allow a verdict to be amended to correct
an arithmetic mistake which resulted in an award of $5000.00 instead of the
intended $500.00. The jury was reassembled six days after the original
verdict.  This Court held that the jury action was in correction of the
original verdict, rather than an impeachment of it. Id. at 102, 70 A.2d  at
590.  However, even though there was no suspicion of any unfair practice,
the Court held that the opportunity afforded for the jurors to be influenced
during the six day period required a new trial.  Id. at 103, 70 A.2d  at 590.
     In the instant case, (1) there is no allegation of impropriety or
tampering,  and practically no opportunity for discussion with or influence
by outsiders; and (2) the jury did not retire to reconsider the issues, but
merely answered the questions that ought to have been put to it moments
before.  There was no miscarriage of justice and no plain error.
                                     III.
     The requisite level of culpability under 23 V.S.A. { 1091(a) is
"ordinary negligence such as would impose civil liability."  State v.
LaBonte, 120 Vt. 465, 468, 144 A.2d 792, 794 (1958).  "[U]nder { 1091(a), a
conviction  will be supported if defendant's conduct is unreasonable; it
need not be proven reckless."  State v. Stevens, 150 Vt. 251, 252, 552 A.2d 410, 411 (1988).  The jury found that defendant attempted to elude the
police officer, and heard testimony that the chase exceeded  50 m.p.h.
through commercial and residential areas.  Two witnesses testified that
defendant's car was moving so fast that it lost traction while negotiating
curves in the road, and there was no evidence of conditions which might
explain this (such as wet roads).
     It was for the jury to decide which evidence to believe, and what
weight to give it.  It was "for the jury to say both how the [defendant]
drove and how the ordinary prudent man would have driven in the same
circumstances."  LaBonte, 120 Vt. at 469, 144 A.2d  at 795.  Viewing the
evidence in the light most favorable to the State, we cannot say that a
reasonable jury could not find lack of ordinary care beyond a reasonable
doubt.
     Affirmed.

                                        FOR THE COURT:


                                        _____________________________
                                        Associate Justice



FN1.      Some jurisdictions go so far as to say that objection to a late
swearing is immaterial, though we need not decide so here.  See e.g. State
v. Apodaca, 105 N.M. 650, 654, 735 P.2d 1156, 1160 (1987) (complete failure
to swear a jury cannot be waived and conviction thereby is a nullity, but
where jury was sworn during trial prior to deliberations, reversal of
conviction not warranted in absence of prejudice even though defendant moved
for mistrial at time of swearing); State v. Godfrey, 136 Ariz. 471, 473, 666 P.2d 1080, 1081-82 (1983) (conviction by unsworn jury a nullity, but where
jury sworn five minutes into deliberations, no reversal of conviction
warranted in absence of prejudice despite motion for mistrial at time of
swearing).