State v. Blow

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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.
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No. 88-422

State of Vermont Supreme Court

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

Michael Blow November Term, 1990

Edward J. Cashman, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and
Thomas M. Kelly, Drug Prosecutor, Department of State's Attorneys,
Montpelier, for plaintiff-appellee

Paul D. Jarvis of Jarvis & Kaplan, Burlington, for defendant-appellant

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

ALLEN, C.J. Defendant appeals his conviction of two counts of dis-
pensing marijuana in violation of 18 V.S.A. { 4224(g), and one count of
obstructing justice in violation of 13 V.S.A. { 3015. We reverse and remand
on all counts.
On March 6, 1987, a police informant met with a Burlington detective
and indicated that he could purchase drugs from defendant. He was then
equipped with an electronic audio transmitter, and transported to
defendant's residence, where he purchased marijuana. The detective
monitored their conversation during the sale. The same procedure occurred
five days later, with the same detective monitoring the conversations
accompanying the sale. Defendant was later charged with two counts of
dispensing marijuana to the informant. The obstruction of justice count was
based on the informant's allegation that on November 27, 1987, defendant
struck him for "ratting him out."
Defendant's pretrial motion to suppress the tape recordings of the
transactions and the officer's testimony about them was granted. The trial
judge, however, later ruled that the recordings and testimony could be used
at trial, and the detective testified about the conversations between the
informant and defendant at the time of the sale. The recordings themselves
were not introduced. The jury convicted defendant, and this appeal
followed.
I.
We express, at the outset, our disapproval of the action of the trial
judge in reversing the ruling of the motions judge. Although the error is
not determinative of this appeal, we will explain the reasons for our
disapproval because of the great importance of the issue and the need to
clarify the relationship between pretrial and trial suppression motions.
Defendant moved to suppress evidence derived from the transmissions.
The motions judge, after a hearing, prepared a well-considered opinion and
order granting the motion. On the first day of trial in April of 1988, the
State orally requested that the trial judge review the suppression decision
"to determine whether or not the court would rule differently." The trial
judge decided that the pretrial ruling was wrong and reversed it, stating
that "the trial judge is not bound by the decision of the pretrial judge."
No evidence was offered at the time of the later ruling. The evidence from
the transmissions was then admitted at trial.
Motions to suppress are required to be filed pretrial "'to eliminate
from the trial disputes over police conduct not immediately relevant to the
question of guilt.'" State v. Clark, 152 Vt. 304, 307, 565 A.2d 1332, 1334
(1989) (quoting Jones v. United States, 362 U.S. 257, 264 (1960)). Granting
the motion to suppress makes the evidence inadmissible "at the trial or at
any future hearing or trial." V.R.Cr.P. 41(f). We have held that pretrial
rulings are tentative and subject to revision at trial. State v. Baldwin,
140 Vt. 501, 514, 438 A.2d 1135, 1142 (1981). See also State v. Senecal,
145 Vt. 554, 558, 497 A.2d 349, 351 (1985) (failure to object to admission
of evidence at trial which defendant had sought to suppress in pretrial
motion before another judge was waiver of objection).
Reconsideration by the trial judge, however, is appropriate only "in
the face of additional evidence or other considerations developing during
trial of the case which might otherwise dictate a modification or a reversal
of the preliminary rulings." Baldwin, 140 Vt. at 514, 438 A.2d at 1142.
Our policy of requiring additional evidence or other objective
considerations as a predicate to reconsidering a pretrial suppression ruling
is even stronger where the pretrial suppression motion is granted. As the
court stated in McRae v. United States,
[I]t would blink reality to ignore the disparate posi-
tion of the state and the accused before trial. . . .
Since the Government is more able than the defendant to
insure a full and fair resolution of any issue . . . at
a pretrial proceeding, there is commensurately less
reason to allow the prosecutor to request a reappraisal
of a suppression order.

420 F.2d 1283, 1287 (D.C. Cir. 1969).
The likelihood of prejudice under the circumstances presented in this
case was great. The motion to reconsider, made at a hearing on another
motion just prior to jury draw was oral. There was no presentation of
grounds or new evidence. Moreover, the State had the opportunity to request
reconsideration by the motions judge and appeal the pretrial suppression
ruling under 13 V.S.A. { 7403. The trial court erred in reversing the
original order.
We decline, however, to reverse on this ground because it was not
raised before the trial court. In fact, while urging the trial court to
adhere to the earlier ruling, defendant's counsel conceded that "the State
can bring [the suppression motion decision] up again." He argued the
merits of the suppression issue, but did not suggest that reconsideration of
the motion was foreclosed. In the absence of plain error we will not
consider the issue for the first time on appeal. State v. Stanislaw, 153
Vt. 517, 528, 573 A.2d 286, 292-93 (1990).
II.
Defendant does not contend that the Fourth Amendment to the United
States Constitution protects him against warrantless electronic surveillance
by a participant to a conversation with him who consents to the use of the
surveillance. See United States. v Caceres, 440 U.S. 741, 750-51 (1979),
relying on United States v. White, 401 U.S., 745, 751 (1971). Rather, the
argument is that such surveillance is prohibited by Chapter I, Article 11,
of the Vermont Constitution, which provides:
That the people have a right to hold themselves, their
houses, papers, and possessions, free from search or
seizure; and therefore warrants, without oath or affirm-
ation first made, affording sufficient foundation for
them, and whereby by any officer or messenger may be
commanded or required to search suspected places, or to
seize any person or persons, his, her or their property,
not particularly described, are contrary to that right,
and ought not to be granted.
A determination that the police activities amount to a prohibited
search or seizure under Article 11 depends on whether the defendant conveyed
an expectation of privacy in such a way that a reasonable person would
conclude that he sought to exclude the public. State v. Kirchoff, 2 Vt.
L.W. 1, 4, 587 A.2d 988, 994 (1991). As Justice Harlan stated in his con-
currence in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring), the test requirements are "first that a person ha[s] exhibited
an actual (subjective) expectation of privacy and, second, that the expec-
tation be one that society is prepared to recognize as 'reasonable.'"
Kirchoff makes it clear that privacy expectations do not necessarily decline
as surveillance technology advances. Kirchoff, 2 Vt. L.W. at 5, 587 A.2d at
996. The reasonableness inquiry hinges on the essence of underlying
constitutional values -- including respect for both private, subjective
expectations and public norms.
In assessing the constitutionality of technologically enhanced govern-
ment surveillance in a particular case, we must identify the values that are
at risk, and vest the reasonable-expectation-of-privacy test with those
values. In the instant case, defendant's conversation with the informant
took place in defendant's home, and there is no indication in the record to
suggest that he expected the conversations to be transmitted beyond the
immediate environs, especially not through electronic enhancement. Clearly,
he did not "knowingly expose" the conversation to the outside world, and
therefore exhibited a clear subjective expectation of privacy. Katz, 389 U.S. at 351.
The objective component of the Katz test was met as well. We have
stated that the reasonableness analysis must be tied to identifiable
constitutional values. One such value under Article 11 concerns the deeply-
rooted legal and societal principle that the coveted that privacy of the
home should be especially protected. "[F]reedom of speech is undermined
where people fear to speak unconstrainedly in what they suppose to be the
privacy of home and office." Lopez v. United States, 373 U.S. 427, 470-471
(1963) (Brennan, J., dissenting). One commentator has stated:
Although Katz decided that the "constitutionally
protected area" test was no longer controlling, the
post-Katz decisions have found it important to determine
whether the area under surveillance has heightened
privacy expectations. The sanctity of the enclosure of
the home as the paradigm of constitutionally protected
areas forced some courts to consider the "value model"
in deciding whether the government activity was
controlled by the fourth amendment.

Gutterman, A Formulation of the Value and Means Models of the Fourth
Amendment in the Age of Technologically Enhanced Surveillance, 39 Syracuse
L. Rev. 647, 724 (1988). As Justice Harlan commented in his concurring
opinion in Katz, "a man's home is, for most purposes, a place where he
expects privacy." Katz, 389 U.S. at 361. See also Payton v. New York, 445 U.S. 573, 589 (1980) (deeply rooted, subjective expectation of privacy in
home).
In a case involving electronic monitoring in the home, the Supreme
Judicial Court of Massachusetts stated in Commonwealth v. Blood:
We consider whether society at large would think it
reasonable for the defendants to expect that, in normal
course, conversations held in private homes will not be
broadcast and recorded surreptitiously. At common law
"[i]t is certain every man has a right to keep his own
sentiments, if he pleases. He has certainly a right to
judge whether he will make them public, or commit them
only to the sight of his friends. Yates, J., in Millar
v. Taylor, 4 Burr. 2303, 2379 (1769)." Warren &
Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198
n.2 (1890).

400 Mass. 61, 68-69, 507 N.E.2d 1029, 1033 (1987).
The court in Blood further observed that "it is objectively reasonable
to expect that conversational interchange in a private home will not be
invaded surreptitiously by warrantless electronic transmission or
recording." Blood, 400 Mass. at 70, 507 N.E.2d at 1034. Other courts have
ruled that their state constitutions or privacy statutes require a warrant
prior to any electronic participant monitoring. See, e.g., State v. Glass,
583 P.2d 872, 881 (Alaska 1978). We do not address the issues raised by
participant monitoring undertaken outside of the home without a warrant, but
it is significant that in Blood and Glass the surveillance activity that
prompted each appeal occurred in a home.
We conclude that warrantless electronic participant monitoring
conducted in a home offends the core values of Article 11. Accordingly,
where the State uses an agent to enter a home for the purposes of eliciting
and electronically transmitting evidence from an occupant of the home, it
is the burden of the State to obtain a warrant upon probable cause prior to
conducting that search.
In State v. Zaccaro, this Court held that a search warrant was not
required under Article 11 for the introduction of evidence obtained through
undercover activity, where the State proved that the officer was invited
into the defendant's home in order to purchase cocaine. 154 Vt. 83, 90-91,
574 A.2d 1256, 1261 (1990). There is no conflict between the outcome in
Zaccaro and the result here. In Zaccaro the trial court excluded tape
recordings taken from the body microphone which the officer wore and the
conviction did not rely on that suppressed evidence. Zaccaro, 154 Vt. at
85-86, 574 A.2d at 1258. Consequently, Zaccaro underscores the distinction
at the heart of the present decision -- that is, the distinction between
electronically recorded evidence obtained in a suspect's home by an
informant posing as a would-be drug customer and testimony from such an
informant who uses only senses and memory.
In emphasizing the importance of the home as a focus of Article 11
analysis, we are not signalling a return to the formalism of Olmstead v.
United States, 277 U.S. 438 (1928), under which the privacy right was
invaded only by a trespass to property. On the contrary, the privacy value
should be protected wherever it is unreasonably threatened, and determining
what is reasonable in an age when surveillance technology is increasingly
sophisticated and pervasive will continue to present difficult and complex
cases. We simply hold that obtaining evidence by electronic monitoring in
a defendant's home without his consent and without prior court
authorization violates Article 11.
III.
Defendant argues that the court should have granted his motion for
acquittal on the obstruction of justice charge because the State failed to
introduce any evidence that proceedings were pending at the time he
committed the acts that served as the basis for the charge. The trial court
took judicial notice that defendant's arraignment on the two drug charges
being tried before the court took place on August 3, 1987, several months
prior to commission of the acts. The trial court did not err, because the
date of arraignment was part of the file and record of the case before it.
See generally McCormick on Evidence { 330, at 927 (E. Cleary 3d ed. 1984)
("It is settled, of course, that the courts . . . take notice of their own
respective records in the present litigation . . . ."); cf. In re Estate of
Leno, 139 Vt. 554, 557, 433 A.2d 260, 262 (1981) ("It is improper for a
court to take judicial notice of the files, records and judgment in a case
other than that on trial.") (emphasis added)).
We agree, however, that the verdict on the obstruction of justice
charge must be reversed and remanded because the trial court erred in
admitting evidence of defendant's two prior simple assault convictions.
Before trial, defendant made a motion in limine to exclude evidence of these
prior convictions. The trial court granted this motion, stating that the
"crimes are terribly too close to the charges here and they are not things
that affect a person's reputation for truth and veracity." The trial court
warned defendant that the convictions would be admissible for impeachment
purposes if, for instance, he suggested that he had never been convicted of
a crime.
At trial, defense counsel concluded his redirect examination of defend-
ant by asking if he was "pretty upset with the charges?" Defendant
answered affirmatively. Defense counsel then asked "Do you get upset
easily?" Defendant replied: "Very. Use[d] to go to Howard Mental Health
Services because I'm hyperactive." On recross examination the prosecutor
proceeded as follows:
Q: You get upset easily?

A: Well, not that upset. You know how you get upset.

Q: You get angry?

A: Well, you know how we raised our voices like that.

Q: You get violent?

A: No, I don't get violent.

Q: You never get violent?

A: No, not that I can recall that great violence for
getting upset. I've been in fights before.

At this point the prosecutor requested a bench conference, at which he
stated his intention to question defendant on prior assault convictions.
The court allowed this questioning over defendant's objections. The court
instructed the jury that they could use this evidence for more than
credibility:
My recollection was that some of the testimony that was
coming in through the defendant was to the effect that
he was not an assaultive person by nature. That throws
his character into the area of jury decision. An issue
for you to decide. A factual issue. What is his
character? Once he throws that in, the State is welcome
to show by any evidence that that's not true. That's
why these convictions came in. For the jury to engage
whether or not he's a disputive type personality as
well as to credibility issues.

Admission of prior assault convictions for the purpose of proving a
"disputive type personality" is governed by V.R.E. 404(a). Evidence of a
defendant's character is not admissible for the purpose of proving conduct
in conformance with that character, except that evidence of a pertinent
trait may be "offered by the accused, or by the prosecution to rebut the
same." V.R.E. 404(a)(1). The court admitted evidence of the prior assault
convictions to rebut what it perceived as defendant's offer of character
evidence. The court stated during the charge conference that "defendant
threw his character into the issue. . . . He brought that forward. . . .
'I'm not an assaultive person.'" Because we do not believe that defendant
offered evidence of his character within the meaning of V.R.E. 404(a)(1), we
conclude that the court erred.
Defendant's statements that he gets upset easily cannot be considered
an offer of character evidence rebuttable by the State. Nor did
defendant's direct denials of the questions which the prosecutor asked on
recross examination constitute an offer of character evidence. As stated in
1A J. Wigmore, Evidence { 58, at 1208 n.3 (Tillers rev. ed. 1983):
Of course, it seems plain enough that a defendant's
direct denial of a question by the prosecutor that
imputes bad character to the defendant does not put the
defendant's character "in issue." To hold to the
contrary involves an unrealistic appraisal of the
defendant's options when a prosecutor in a trial asks
such a question.

See also 22 C. Wright & K. Graham, Federal Practice and Procedure { 5236
(1978) (Fed. R. Evid. 404(a)(1) means "that the prosecution cannot elicit
evidence of the defendant's good character as a foundation for its rebuttal
with proof of bad character"). If the rule were interpreted otherwise, the
requirement that defendant first offer character evidence would be
completely illusory, because the State could always orchestrate an "offer"
by asking a question calculated to elicit a negative response. This
holding is in accord with case law from other jurisdictions. See, e.g.,
Carson v. Polley, 689 F.2d 562, 576 (5th Cir. 1982) (where defendant did not
offer any substantial direct testimony as to his character, simple statement
made on cross-examination did not constitute a sufficient offer of character
evidence); State v. Quick, 229 Kan. 117, 120, 621 P.2d 997, 1000 (1981)
("The self-serving cross-examination by the prosecution cannot form the
basis for a later claim defendant had placed his good character in issue
thereby allowing that same prosecution to introduce evidence of prior
crimes."); State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973)
("A general denial by the defendant that he did a particular kind of act is
insufficient to put his character into issue.").
This holding is also consistent with our opinion in State v. Parker,
where we found the defendant's unsolicited response on cross-examination
that "I am not perverted" sufficient to open the door to rebuttal character
evidence. 149 Vt. 393, 398, 403, 545 A.2d 512, 518 (1988). A defendant,
through answers on cross-examination, can offer evidence of his character
within the meaning of V.R.E. 404(a)(1). See State v. Austad, 197 Mont. 70,
88-89, 641 P.2d 1373, 1383 (1982) (defendant's answers on cross-examination
which went beyond the scope of question asked were sufficient to open the
door to prosecution's rebuttal evidence). Defendant's direct denials on
cross-examination of questions that impute bad character are not a
sufficient "offer" within the meaning of the rule.
We cannot conclude that this error was harmless. The State's evidence
consisted solely of the informant's testimony that defendant struck him, and
photographs of the informant's injuries. The informant testified that he
was with one of the "Hatin brothers" at the time of the alleged incident,
yet the State failed to identify which brother and, consequently, did not
introduce any eyewitnesses to corroborate the informant's testimony.
Defendant denied that the incident occurred, calling two of the Hatin
brothers who had been contacted by the police, both of whom denied
knowledge of the incident. On these facts, admission of evidence of the two
prior assault convictions was not harmless.
Reversed and remanded.

FOR THE COURT:

Chief Justice

-------------------------------------------------------------------------------
Concurring

No. 88-422

State of Vermont Supreme Court

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

Michael Blow November Term, 1990

Edward J. Cashman, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and
Thomas M. Kelly, Drug Prosecutor, Department of State's Attorneys,
Montpelier, for plaintiff-appellee

Paul D. Jarvis of Jarvis & Kaplan, Burlington, for defendant-appellant

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

MORSE, J., concurring. I concur with all three parts of the Court's
opinion, but I concur with the result in part II based on the reasoning
found in my dissent in State v. Brooks, No. 87-339 (Vt. Nov. 1, 1991).

______________________________
Associate Justice

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