State v. Curavoo

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. 88-204


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Edward Curavoo                               Unit No. 2, Chittenden Circuit

                                             September Term, 1990



Edward J. Cashman, J.

William H. Sorrell, Chittenden County State's Attorney, Burlington, and
   Rosemary Hull and Gary Kessler, Department of State's Attorneys,
   Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
   Defender, Montpelier, for defendant-appellant



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



     GIBSON, J.   Defendant Edward Curavoo appeals from his conviction of
being in actual physical control of a motor vehicle while under the
influence of intoxicating liquor, in violation of 23 V.S.A. { 1201(a)(2).
He argues that the trial court committed reversible error by admitting into
evidence his refusals to take a preliminary breath-alcohol-screening test
(alco-sensor) and field dexterity tests.  We affirm.
     On August 27, 1987, at about 7:00 p.m., defendant left work from the
Sears parking lot on Shelburne Road in South Burlington.  Sometime there-
after, he pulled into the Green Mountain Hardware parking lot, which also is
located on Shelburne Road.  At approximately 9:00 p.m., police officer James
Snyder responded to a report that there was a vehicle, with someone inside,
parked in the parking lot with its headlights on.
     Snyder testified that he found defendant in the driver's seat, slumped
over, with his head hanging down.  The vehicle's headlights were on, the
keys were in the ignition, and a strong odor of alcohol was noticeable on
defendant's breath and from the car's interior.  Snyder testified that
defendant did not wake up easily, but that when he finally did, he was
groggy and had watery, bloodshot eyes.  Defendant admitted to drinking a few
beers at "Greenie's," which is located about two and one-half miles from the
parking lot.  Snyder noticed a number of beer cans in the car and asked
defendant how he got to the parking lot.  Defendant said he walked.  Upon
being asked how the car got there, defendant said he walked the car there.
When defendant got out of his car, he staggered to a nearby vehicle, and
nearly fell over when he attempted to lean against it.  Over defendant's
objection, Snyder testified that defendant refused to take an alco-sensor
test or perform field dexterity tests.  The trial court ruled that the
testimony was not barred by statute or constitution and was relevant to
show defendant's state of mind.  The evidence was not, however, referred to
again during the trial.
     Defendant's testimony, which his girlfriend corroborated, presents a
somewhat different story.  A good friend of defendant's, "Charlie," had
died recently in an automobile accident.  When driving by Charlie's former
place of employment, defendant became despondent and turned into the Green
Mountain Hardware parking lot.  After parking, he discovered in the car,
which he had just purchased from Charlie's estate, a partly full bottle of
Jack Daniels and some empty beer cans.  While parked, he drank three or four
"swigs" of Jack Daniels.  He later walked a short distance to a pay phone,
where he called his girlfriend and asked her to pick him up, a drive of some
forty-five minutes.  He agreed to leave his headlights on as a signal to
help her locate him, as she was not very familiar with the area.  Defendant
then went back to his car, sat in the driver's seat, put the keys on the
dashboard, turned on the headlights, and, because he was tired from a long
day's work and lack of sleep, fell into a slumber.
     On appeal, defendant argues that the trial court erred by allowing into
evidence his refusal to perform field dexterity tests.  Defendant does not
argue that this evidence violates his Fifth Amendment or Vermont Constitu-
tional rights.  Instead, he contends that, in the absence of positive
statutory authorization for a police request, he had the "natural and
inherent right to refuse" taking the tests. (FN1)
     "All relevant evidence is admissible, except as limited by
constitutional requirements or as otherwise provided by statute or by these
[rules of evidence] or by other rules prescribed by the Supreme Court."
V.R.E. 402.  As defendant does not cite any rule requiring a refusal to
perform the field dexterity tests to be excluded, (FN2) we reject his argument.
See State v. Hoenscheid, 374 N.W.2d 128, 132 (S.D. 1985) (Morgan, J., con-
curring specially) (There being no statutory ground for refusal to submit
to field dexterity tests, "there is no reason not to consider refusal as
evidence of consciousness of guilt.").
     Defendant also objects to the introduction of his refusal to take the
alco-sensor test.  He argues that there is a statutory right to refuse the
alco-sensor test on grounds that 23 V.S.A. { 1202(a)'s implied consent
provisions do not apply to the alco-sensor test and that admission of the
refusal evidence undercuts the statutory right. (FN3)
     Having independently reviewed the record, however, we conclude that the
trial court's error, if any, was harmless.  Absent defendant's refusal to
take the alco-sensor test, the remaining evidence overwhelmingly establishes
the statutory requirements for actual physical control of a motor vehicle
while under the influence. (FN4) The intoxication element of "[s]ection
1201(a)(2) is satisfied if defendant was under the influence of intoxicating
liquor to the slightest degree."  State v. Frigault, 151 Vt. 537, 538, 561 A.2d 895, 896 (1989).  Vermont case law has repeatedly affirmed { 1201(a)(2)
convictions where a defendant is found slumped over at the wheel, asleep or
unconscious, with the keys in the ignition.  See State v. Blaine, 148 Vt.
272, 274, 531 A.2d 933, 934 (1987); State v. Trucott, 145 Vt. 274, 281-82,
487 A.2d 149, 153-54 (1984): State v. Godfrey, 137 Vt. 159, 161, 400 A.2d 1026, 1026-27 (1979).
     In the instant case, defendant was found at the wheel, slumped over and
either asleep or unconscious, with the keys either in the ignition or on the
dashboard.  Defendant admitted to Officer Snyder that he had had "a few
beers," and he testified that he had had three or four "swigs" of Jack
Daniels.  Snyder testified that defendant had the odor of alcohol on his
breath, staggered while walking to a nearby car, and nearly fell over when
he tried to lean against it.  Moreover, Snyder's testimony that defendant
refused to take the alco-sensor test was an isolated event during the trial.
The refusal evidence was not referred to again during Snyder's testimony
and was not referred to at all during defendant's testimony, either closing
argument, or any other time during the trial.  We conclude that "it is clear
beyond a reasonable doubt that the [jury] would have rendered a judgment of
guilty absent the offending evidence."  State v. Percy, 149 Vt. 623, 629,
548 A.2d 408, 411 (1988).
     We note that the parties have not briefed the question of which
harmless-error standard to apply here.  See, e.g., Chapman v. California,
386 U.S. 18, 24 (1967) (beneficiary of federal constitutional error must
establish that error was harmless beyond a reasonable doubt); United States
v. Lane, 474 U.S. 438, 449 (1986) (for errors that are not of constitutional
magnitude, Fed. R. Crim. P. 52(a) (identical to V.R.Cr.P. 52(a)) requires
reversal only where the error results in actual prejudice "because it 'had
substantial and injurious effect or influence in determining the jury's
verdict.'" (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
The Vermont harmless-error rule appears in need of clarification.  See,
e.g., State v. Hunt, 150 Vt. 483, 489-90, 555 A.2d 369, 373-74 (1988)
(defendant must demonstrate prejudice in order to obtain reversal for
violation of constitutional right to due process); State v. Percy, 149 Vt.
623, 629, 548 A.2d 408, 411 (1988) (to avoid reversal for violation of a
defendant's federal constitutional rights, State must prove error harmless
beyond a reasonable doubt).  Because we conclude in this case that the
error, if any, does not warrant reversal under even the strictest of
harmless-error standards, we need not reach the issue of what standard to
apply in this case and expressly decline to do so.
     Affirmed.



                                   FOR THE COURT:



                                   ________________________________
                                   Associate Justice




FN1.    Defendant adds that he was not warned that his refusal to perform
field dexterity tests would be admissible into evidence.  Defendant,
however, failed to raise this argument below, and the record is accordingly
silent regarding whether warnings were, in fact, provided at the time of
the request.  As the issue has not been properly preserved, and there being
no plain error, we decline to address whether a warning was required.  State
v. Ringler, ____ Vt. ____, ____, 571 A.2d 668, 669-70 (1989).

FN2.     Defendant's Fourth Amendment argument, citing State v. Gray, 150
Vt. 184, 552 A.2d 1190 (1988), is not properly preserved.  Defendant
objected that he had a constitutional and statutory right to refuse to
perform field dexterity tests, without ever stating that he was relying on
the Fourth Amendment or Vermont's constitution.  This objection does not
have the specificity necessary to preserve the Fourth Amendment argument for
appeal.  See State v. Byrne, 149 Vt. 257, 260-61, 542 A.2d 667, 669 (1988)
(motion to exclude State's evidence on grounds that "'the stop was
basically illegal' . . . lacked the necessary particularity to inform the
trial judge of the grounds for the proposed action").  In any event, the
seizure was clearly supported by sufficient suspicion and cause to justify
the increasing levels of detention.  See State v. Gray, 150 Vt. at 191, 552 A.2d  at 1194-95.

FN3.     In 1987, the statute was silent regarding whether there was a right
to refuse the alco-sensor test.  As amended in 1989, the statute expressly
provides a right to refuse the alco-sensor test.  23 V.S.A. { 1203(f)
provides in pertinent part that "[t]he officer shall inform the person that
the person has the right to refuse to submit to the [preliminary screening]
test."

FN4.    23 V.S.A. { 1201 provides in pertinent part:
     (a) A person shall not . . . be in actual physical control of any
     vehicle on a highway while:
          . . .
          (2) under the influence of intoxicating liquor . . . .
Defendant has made no argument that he was not on a "highway."  Thus, the
relevant elements are that (1) defendant was in actual physical control of
the vehicle (2) while he was intoxicated.