State v. Baril

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. 88-032


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont
                                             Unit No. 2, Grand Isle Circuit

Darren Baril                                 February Term, 1990


Ronald F. Kilburn, J.

Jeffrey L. Amestoy, Attorney General, Susan R. Harritt, Assistant Attorney
  General, and Gayle Middleton, Law Clerk (On the Brief), Montpelier, for
  plaintiff-appellee

Daniel Albert, Public Defender, St. Albans, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     ALLEN, C.J.   A jury convicted defendant of driving a motor vehicle
under the influence of alcohol (DUI).  The conviction was his second within
five years.  Accordingly, the trial court sentenced defendant as a second
offender pursuant to 23 V.S.A. { 1210(c).  Defendant appeals his sentence
and asks that the case be remanded for resentencing before a different
judge.  We affirm.
     In July 1986, defendant was involved in a two-car accident and was
subsequently charged with DUI in violation of 23 V.S.A. { 1201(a)(2), along
with a related traffic violation.  The information also alleged that
defendant had a prior conviction for drunk driving.  Before trial, defendant
moved to suppress the numerical breath test result.  The parties
subsequently stipulated that the breath test would not be referred to except
as rebuttal under certain limited circumstances.
     The jury found defendant guilty of DUI and the related traffic
offense.  Thereafter, the second phase of the bifurcated proceeding was held
to determine the accused's liability to enhanced punishment as a subsequent
offender in accordance with the procedures outlined in State v. Cameron, 126
Vt. 244, 227 A.2d 276 (1966).  The State introduced identification testimony
and a certified copy of a prior conviction.  The jury found that defendant
had been convicted of violating 23 V.S.A. { 1201 within the preceding five
years and was therefore subject to the enhanced penalty provision of 23
V.S.A. { 1210(c). (FN1)
     Defendant filed a motion for a new trial challenging several aspects of
the prosecutor's closing argument.  The court granted defendant's motion
with respect to the substantive offense, but explicitly left intact the
jury's finding from the enhancement phase of the proceeding for use if
defendant were found guilty upon retrial.
     At the second trial, a jury again convicted defendant of DUI.  The
court, stating that it could not "ignore the fact that the two offenses
occurred so close together," sentenced defendant to a jail term of ten days
to one year, all suspended except ten days, pursuant to 23 V.S.A. {
1210(c).
     Defendant challenges this sentence on appeal, arguing that:  (1) the
trial court's grant of a new trial necessarily applied to the enhancement
allegation of a prior DUI conviction; (2) even if the court had the
discretionary authority to limit its new trial order to the principal
offense alone, the court abused its discretion in this case; (3) the State's
reference to the breath test result at the sentencing hearing contravened
the parties' stipulation to defendant's prejudice; and (4) the court erred
by failing to give defendant's requested instruction on the presumption of
innocence.
                                    I.
     Without citing authority for the proposition, defendant argues that the
grant of his new trial motion automatically reinstated his not guilty pleas
on all the charges brought by the amended information.  Therefore, defendant
contends, the State had to prove at the new trial all of the essential
allegations beyond a reasonable doubt -- including a prior conviction where
the charge is DUI-second offense.  Further, defendant claims that since
Cameron requires conviction on the substantive offense before a determina-
tion of prior offender status, the finding of a prior offense could have no
effect once conviction on the substantive offense was vacated.
     Defendant essentially claims that the trial court lacked the authority
to order a new trial on the substantive offense alone.  In Cameron, 126 Vt.
at 250, 227 A.2d  at 280, we left the details of the enhancement procedure to
court rules.  A motion for a new trial is a matter committed to the sole
discretion of the trial court.  State v. Jewell, 150 Vt. 281, 284, 552 A.2d 790, 792 (1988).  Nothing in V.R.Cr.P. 33 indicates the existence of the
limitation defendant posits.
     The Michigan Court of Appeals considered a similar issue in People v.
Wilkins, 115 Mich. App. 153, 320 N.W.2d 326 (1982).  In that case, a
defendant with three prior felony convictions was convicted of carrying a
concealed weapon and sentenced as a habitual offender.  The weapons
conviction was subsequently reversed and remanded for a new trial.  After
defendant was reconvicted, the trial court sentenced him as a habitual
offender without determining defendant's status anew.  The Court of Appeals
noted that the factual determinations essential to support the habitual
offender conviction had never been set aside and ruled that reversal of the
substantive offense did not automatically reverse the habitual offender
conviction.  Id. at 155, 320 N.W.2d  at 327.  The court concluded that "all
that is necessary to empower the court to sentence the defendant as a fourth
felony offender after the reversal of the fourth felony conviction is that
the defendant be convicted again of the fourth felony offense upon retrial."
Id.  We agree with the approach of Wilkins and hold that in a case involving
enhanced penalties for prior offenses a court may, within the proper
exercise of its discretion, grant a new trial on the substantive offense
while leaving undisturbed a finding on a defendant's status as a prior
offender.  See also State v. Jackson, 540 So. 2d 533, 537 (La. App. 1989)
(where statute provided enhanced penalties for use of a firearm in the
commission of a crime, court could remand for resentencing to determine
whether defendant had used a firearm in the commission of the substantive
offense without requiring a second hearing on multiple offender status);
People v. Hatfield, 182 Mich. App. 384, 386, 451 N.W.2d 634, 635 (1990)
(following Wilkins).
     Contrary to defendant's assertions, Cameron does not dictate a
different result.  Cameron held that due process requires that a defendant
receive notice of the State's intention to seek a greater punishment because
of a prior conviction and outlined the procedure by which an accused must
first be tried and convicted of the substantive offense.  Cameron, 126 Vt.
at 248-50, 227 A.2d  at 279-80.  This Court established a bifurcated
proceeding in order to protect an accused from the prejudice that would
likely result from the introduction of the accused's former conviction into
the trial for the substantive offense.  Id. at 250, 227 A.2d  at 280.  No
such danger arises in the instant case because the original jury found that
defendant had committed a prior offense only after it had convicted him of
DUI in a separate proceeding.  Another jury then sat for the retrial and,
while uninformed of both the allegation of a prior offense and the first
jury's decision on enhancement, convicted defendant once again of DUI.
                                    II.
     Defendant argues in the alternative that the court abused its
discretion by ordering a new trial on only the substantive offense.  To
prevail on appeal, defendant must affirmatively show that the court abused
or unreasonably withheld its discretion.  See State v. Dragon, 135 Vt. 168,
170, 376 A.2d 12, 13 (1977).
     The court granted a new trial on the DUI charge because of the
prejudicial effect of the prosecutor's improper closing remarks. (FN2) While the
prosecutor's comments were considered prejudicial relative to the DUI
proceeding, they were unrelated to the proof offered in the separate
enhancement proceeding.  In that proceeding, the State presented evidence of
defendant's identity as the same individual who was convicted of DUI in
February 1986 and introduced a certified copy of that conviction.  Defend-
ant offered no evidence to counter the State's enhancement case.  We fail to
see how the prosecutor's rebuttal remarks could have prejudiced the second
proceeding.  Given the nature of the improprieties that gave rise to a new
trial and the uncontested evidence of a prior offense introduced in the
separate enhancement proceeding, defendant has failed to establish that the
trial court abused its discretion.
                                   III.
     Before the first DUI trial, the parties stipulated that "there shall be
no reference to the breath test in this case except as rebuttal by the State
to rebut any assertion by the defendant that he had consumed no alcohol on
the date and time in question."  The State, however, referred to defendant's
blood alcohol content (BAC) test results at the sentencing hearing.  Defend-
ant objected and argues on appeal that the court's failure to rule on the
objection and to indicate that it would disregard the reference warrants
resentencing before a different judge.  We disagree.
     Defendant bears the burden of proving prejudice as a result of the
prosecutor's remarks at the sentencing hearing.  See State v. Bailey, 144
Vt. 86, 100, 475 A.2d 1045, 1054 (1984) (prosecutor's closing remarks to
jury).  The presentence investigation (PSI) report specifically included a
reference to defendant's BAC test results and contained defendant's version
of the underlying events in which he admitted consuming at least fifteen
beers. (FN3) The error, if any, was harmless due to the cumulative nature of the
information.  See State v. Hunt, 150 Vt. 483, 493-94, 555 A.2d 369, 376
(1988).
                                    IV.
     Lastly, defendant contends that the trial court erroneously instructed
the jury on the presumption of innocence. (FN4) The court refused to give
defendant's proposed instruction, which stated that "the presumption of
innocence, when considered with all of the other evidence in the case, may
be sufficient to raise a reasonable doubt as to the guilt of the defendant."
Instead, the court instructed the jury:
           Under the law of the United States and the State of
         Vermont, a Defendant during a criminal trial must be
         presumed innocent.  This presumption is with him
         throughout the entire trial and until you reach a
         verdict.  The presumption of innocence itself is a piece
         of evidence to be considered by you in Defendant's
         favor.  Only if you reach a unanimous verdict of guilty
         beyond a reasonable doubt, at the end of your
         discussions in the jury room, does the Defendant lose
         the presumption of innocence.
           To overcome the presumption of innocence it requires
         that you be convinced of evidence of guilt.  Because he
         is presumed innocent, the Defendant does not have to
         provide evidence of his innocence.  Instead it is the
         duty of the State to convince you of the Defendant's
         guilt.  In order to convince you, the State must prove
         every essential element of the offense beyond a
         reasonable doubt.

     13 V.S.A. { 6502 requires the trial court to charge the jury on the
presumption of innocence.  Taken as a whole, the court's instruction
accurately reflects the law.  See State v. Camley, 140 Vt. 483, 488, 438 A.2d 1131, 1133 (1981).  Where a jury instruction breaths the true spirit of
the law, the court need not employ the exact terms requested by the
complaining party.  State v. Joy, 149 Vt. 607, 617, 549 A.2d 1033, 1039
(1988).  There was no error.
     Affirmed.
                                        FOR THE COURT:




                                        Chief Justice




FN1.    23 V.S.A. { 1210(b) provided that a first offense is punishable by a
fine of not less than $200.00 nor more than $750.00, or up to one year in
prison, or both.  A second DUI conviction within five years of the first is
punishable by up to a year in prison, all except 48 hours suspended or
deferred, or all suspended if, as a condition of probation, defendant is
required to complete satisfactorily a period of community service of not
less than 10 days; a fine of not less than $250.00 nor more than $1000.00,
or both.  23 V.S.A. { 1210(c) (amended 1989).

FN2.    Defendant has not supplied the Court with transcripts from the first
trial.  However, the transcript of the new trial motion hearing indicates
that the prosecutor apparently impugned the integrity of defense counsel by
asserting a professional ethics violation and suggested without evidentiary
support that defendant's car had been involved in a separate mishap on the
night that the DUI offense occurred.

FN3.    PSI reports are made available for a defendant's inspection at least
seven days prior to sentencing to afford an opportunity to challenge
improperly included information.  See State v. Chambers, 144 Vt. 377, 384,
477 A.2d 974, 979 (1984); V.R.Cr.P. 32(c)(3).  Defendant did not object to
the inclusion of the BAC information in the PSI report.

FN4.    Defendant also claims that the court erred in its instructions on
reasonable doubt and conflicting testimony.  At trial, however, defendant
raised no objection to these aspects of the jury instructions and we decline
to consider these arguments on appeal.  See State v. Hoadley, 147 Vt. 49,
52, 512 A.2d 879, 881 (1986); V.R.Cr.P. 30.