State v. Callahan

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. 88-463


State of Vermont                             Supreme Court

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

                                             October Term, 1990


Ronald F. Kilburn, J.

Gary S. Kessler, Resource Attorney, Montpelier, and Bettina V. Buehler,
  Student Intern (On the Brief), South Royalton, for plaintiff-appellee

Michael Rose, St. Albans, for defendant-appellant


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


     GIBSON, J.  Defendant appeals from a conviction of driving while his
license was suspended (DLS).  23 V.S.A. { 674(a).  We affirm.
     Defendant raises four issues on appeal.  He contends that his Fifth
Amendment right not to be placed in jeopardy twice was violated; that the
trial court improperly placed on him the burden of proving his necessity
defense; that the State was permitted to introduce irrelevant and prejudi-
cial evidence; and that, during closing argument, the prosecutor unlawfully
commented on his failure to testify.
                                    I.
     Defendant argues that his Fifth Amendment right not to be placed in
jeopardy twice was violated because, in an earlier proceeding, the
prosecutor intentionally provoked him to move for a mistrial.  By failing to
raise this argument before the trial court, however, defendant waived it.
"[W]here the governmental conduct in question is intended to 'goad' the
defendant into moving for a mistrial . . . a defendant [may] raise the bar
of double jeopardy to a second trial after having succeeded in aborting the
first on his own motion."  Oregon v. Kennedy, 456 U.S. 667, 676 (1982);
State v. Wood, 146 Vt. 57, 57-58, 498 A.2d 494, 494-95 (1985).  But,
          [w]e do not . . . have to reach the merits of the
          defendant's double jeopardy claim because he "'proceeded
          to trial, verdict and judgment without raising [a double
          jeopardy] claim.  [I]n so doing he impliedly waived the
          defense of double jeopardy, and, therefore, that issue
          [is] not before us for determination on the merits.'"

State v. Alameda, 211 Conn. 441, ___, 560 A.2d 389, 393 (1989) (quoting
State v. Price, 208 Conn. 387, 390, 544 A.2d 184, 185 (1988) (quoting State
v. Jones, 166 Conn. 620, 630, 353 A.2d 764, 769 (1974))); see also United
States v. Becker, 892 F.2d 265, 267 (3d Cir. 1989) ("double jeopardy claim
may be waived if not raised at trial"); United States v. Bascaro, 742 F.2d 1335, 1365 (11th Cir. 1984) (double jeopardy claim waived when raised for
first time on appeal); Reporter's Notes to V.R.Cr.P. 12 at 68 (if double
jeopardy is "not raised either by pre-trial motion or at trial, then [it is]
waived unless unknown at the time").
                                    II.
     Defendant also argues that the court erroneously allocated to him the
burden of proving the necessity defense by a preponderance of the evidence.
We disagree.  Recently, we decided that the "defendant must bear the burden
of proving the necessity defense by a preponderance of the evidence," where
the charge was driving while one's license is suspended.  State v. Baker,
__ Vt. __, __, 579 A.2d 479, 483 (1990).  Our holding in Baker controls
here.
                                   III.
     Defendant contends that the court erroneously allowed the State to
introduce irrelevant and prejudicial evidence in violation of V.R.E. 402 and
403.  We find that the court did not abuse its discretion in admitting the
contested evidence.
     Defendant attempted to establish a necessity defense at trial.  He
claimed that he drove to Kessler's Market on February 9, 1987, because his
housemate, Ms. Nichols, urgently needed milk and orange juice.  Ms. Nichols
testified that due to health problems she is "supposed to drink [milk] every
time [she] turn[s] around" and that she needs orange juice to take with
certain pills.  She further testified that, because they had been snowed in,
she had run out of milk and orange juice on February 9 and that she relied
on defendant to keep her supplied with these items.
     Defendant's driver's license was suspended on December 10, 1986.  As a
result, defendant relied on others to drive him when he needed to go
shopping.  Mr. Langlois, who drove defendant to shop every Thursday,
testified that, on February 9, defendant called him and asked to be taken to
the store.  Mr. Langlois told defendant he could not drive him at that time
because he was busy plowing but that he might be able to drive him later in
the day.  Defendant was unable to call Mrs. Prairie, who also occasionally
drove him to the store, because she was at the hospital visiting an aunt
that day.  Moreover, Ms. Nichols testified that she did not suggest to
defendant that he walk to the store because he has bone cancer in his legs.
Defendant argued that this evidence established a valid necessity defense.
     The State, in an attempt to rebut defendant's necessity defense,
called the owner of Kessler's Market, Ms. Mashtare, to the stand.  Over
defendant's objection, she was allowed to testify that while defendant was
in the store on February 9 he did not appear to be in a hurry and that he
had walked to her store on a previous occasion.  Ms. Mashtare also asserted
that in prior months defendant had driven to her store several times a
week.
     The State has a right to rebut a defendant's evidence in support of a
claim first introduced by the defendant.  State v. Marsh, 70 Vt. 288, 302,
40 A. 836, __ (1898).  Ms. Mashtare's testimony that defendant did not
appear to be in a hurry on February 9 and that he had walked to her store on
a previous occasion was directly relevant to rebut elements of defendant's
necessity defense. (FN1) It tended to show that Ms. Nichols's need for orange
juice and milk was not immediate and that defendant could have walked to
Kessler's Market rather than drive.  Defendant does not argue that this
evidence was unfairly prejudicial.
     Ms. Mashtare's assertion that she had seen defendant drive to her store
on previous occasions is more problematic since at first blush it does not
appear to rebut directly any of the elements of necessity.  Nevertheless,
defendant portrayed the failure of his backup system for obtaining necessary
groceries as part of the emergency giving rise to his need to drive.  During
his opening statement, defendant's counsel stated: "The evidence will show
that . . . [defendant's] regular arrangements for getting supplies in fell
through and [he] had no other reasonable alternative but for [him] to drive
to get those necessary supplies."  Mr. Langlois and Ms. Nichols testified
that either Mr. Langlois or someone else would drive defendant and Ms.
Nichols when they had to go to the store.  Defendant's attorney emphasized
at closing argument that
          The emergency situation that existed . . . was not just
          that Kate Nichols and [defendant] had run out of these
          essential items, milk and orange juice, that they needed
          and Ms. Nichols needed for her medical treatment.  Not
          just that they ran out, but also that their backup
          system for getting them, that is, Mr. Langlois and Mrs.
          Prairie, were unavailable.  That's what the emergency
          was.  The emergency was that entire system, that entire
          situation.

     In view of the defense theory, the State's evidence was relevant to
rebut defendant's contention that he had a regular system to get to the
store, the failure of which gave rise to his need to drive.  Having argued
that the failure of his backup system was part of the emergency giving rise
to his need to drive, defendant cannot argue that evidence of the nonexist-
ence of such a system was irrelevant.
     Defendant contends that even if the evidence were relevant, it should
have been excluded because it was unfairly prejudicial.  See V.R.E. 403.
The evidence was not rendered inadmissible under Rule 403 just because it
was unfavorable, however.  We stated in State v. Parker, 149 Vt. 393, 400,
545 A.2d 512, 516-17 (1988):
          [A] determination that the evidence in question will
          "prejudice" the defendant is not necessarily sufficient,
          standing alone, to activate the discretionary function
          in his favor.  Virtually all evidence for the prosecu-
          tion in a criminal case is prejudicial to some degree at
          least against the accused.  Underlying 403 in its
          entirety is the proposition that a discretionary
          decision regarding the admission of evidence challenged
          as unfairly prejudicial involves a balancing of the
          competing concerns for its relevance, on the one hand,
          and the extent of its prejudicial effect, on the other.

"The trial judge has substantial discretion in making Rule 403 rulings.
The ruling can be overturned only on a showing of abuse of discretion."
State v. Larose, 150 Vt. 363, 368, 554 A.2d 227, 231 (1988)(citations
omitted).  Defendant has not shown that the court abused its discretion in
allowing the introduction of the disputed evidence.
     The court had reasonable grounds for its decision.  The evidence was
relevant to rebut a theory aggressively advanced by defendant.  Moreover,
there was reason to conclude that the evidence would not be unfairly
prejudicial.  First, when "evidence objected to was similar in effect to
other evidence received without objection . . . the error, if any, [is]
harmless."  Wakefield v. Levin, 118 Vt. 392, 395, 110 A.2d 712, 714 (1955).
Before Ms. Mashtare testified, Ms. Nichols had admitted that she did not
know how defendant got to the store on certain occasions, thus raising an
inference that defendant may have driven on those occasions.  Also, the
evidence of prior driving undermined only defendant's assertion that he had
a system to get himself to the store.  It did not affect his assertion that
a snowstorm had created a special situation that made it necessary for him
to drive on February 9.  Finally, the court cautioned the jury that
"evidence that the Defendant may have operated a motor vehicle at times
other than on February 9th, 1987, may not be used to convict him of the
pending charge absent proof beyond a reasonable doubt."  In view of these
circumstances, we conclude that the court did not abuse its discretion in
allowing the State to present the testimony.  See State v. Chenette, 151 Vt.
237, 246, 560 A.2d 365, 372 (1989)("While [the evidence] might have some
prejudicial effect, the balancing was within the trial court's discretion
and the prejudice was minimized by the limiting instruction.").
     Defendant also argues that Ms. Mashtare's testimony constituted
evidence of prior crimes, which may not be used "to prove that a person did
the thing in question by proving that he or she had in the past done a
similar thing."  State v. Patnaude, 140 Vt. 361, 370, 438 Vt. 402, 405
(1981); see V.R.E. 404(b).  At trial, however, defendant objected to the
testimony only on grounds of irrelevance and prejudice.  "An objection on
one ground to the trial court does not preserve a claim of error on appeal
based on other grounds."  In re R.L., 148 Vt. 223, 227, 531 A.2d 909, 911-12
(1987).  Errors not preserved at trial will not be considered on appeal
unless plain error has occurred.  State v. Mecier, 145 Vt. 173, 177-78, 488 A.2d 737, 740-41 (1984).  Plain error occurs only "where our failure to
recognize a claim of error would result in a miscarriage of justice or
'where a glaring error occurred during the trial and was so grave and
serious that it strikes at the very heart of the [defendant's] constitu-
tional rights.'"  State v. Anderkin, 145 Vt. 240, 245, 487 A.2d 142, 144
(1984) (quoting State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145
(1969))(citations omitted).  Here, permitting Ms. Mashtare to testify about
prior occasions when defendant drove does not rise to the level of plain
error.
                                    IV.
     Defendant's final argument is that the court erred in failing to grant
him a new trial after the prosecutor improperly commented, during rebuttal
argument, on his failure to testify.  We do not agree that a new trial was
warranted.
     "As a matter of statutory law and federal constitutional law, the
prosecution may not in any way comment on a defendant's failure to
testify."  State v. Shattuck, 141 Vt. 523, 531, 450 A.2d 1122, 1126 (1982)
(citations omitted).  The test is, "'Was the language used manifestly
intended to be, or was it of such character that the jury would naturally
and necessarily take it to be a comment on the failure of the accused to
testify?'"  State v. Norton, 134 Vt. 100, 106, 353 A.2d 324, 327 (1976)
(quoting United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d
Cir. 1969)).  "The decision as to whether or not a comment is prejudicial is
clearly within the sound judgment and discretion of the trial court."  Id.
at 105, 353 A.2d  at 327.
     The prosecutor stated:
          It's true that the Defendant enjoys a lower standard of
          proof, but it's not so low that you abandon all common
          sense and reasonability in just giving him the benefit
          of the doubt.  You still have to look at his case very
          carefully.  Sure, he doesn't have as high a hurdle to
          jump over, but you have to look at the quantity and the
          quality of the evidence that he presented to you and his
          attempt to overcome that hurdle that he is supposed to
          jump over or the burden that he is supposed to meet.

Defendant argues that, by inviting the jury to look at the sparseness of the
evidence defendant presented in support of his necessity defense, the
prosecutor referred to defendant's failure to testify.
     When the contested statement is examined in context, it becomes clear
that the prosecutor was merely commenting on the general weakness of
defendant's evidence of necessity.  Furthermore, because defendant was not
the only person who could testify regarding the defense, the comment would
not necessarily be construed to refer to his failure to testify.  See State
v. Allen, 9 Conn. App. 169, 179-80, 517 A.2d 1043, 1049 (1986) rev'd on
other grounds, 205 Conn. 370, 533 A.2d 559 (1987) (prosecutor's comment that
certain facts had not been explained was not error where "defendant conceded
. . . that witnesses other than the defendant could have provided expla-
nations"); Watts v. United States, 449 A.2d 308, 313 (D.C. Cir. 1982) ("when
a prosecutor's argument consists . . . of a reference to uncontradicted
government evidence, the jury will not necessarily construe it as a comment
on the defendant's silence unless the defendant's testimony is the only
possible source of contradiction"); Grace v. State, 6 Md. App. 520, 523, 252 A.2d 297, 299 (1969) ("[defendant's] argument that [the prosecutor's]
request for an explanation pointed directly to the defendant is without
merit for the reason that it is entirely possible that other witnesses could
have given an explanation").  We note also that defendant specifically asked
the court not to give the jury any instructions pertaining to his right not
to testify.  Under the circumstances, we find that the court did not abuse
its discretion in refusing to grant a new trial based on the prosecutor's
comments.
     Affirmed.

                                        FOR THE COURT:



                                        ______________________________
                                        Associate Justice






FN1.      The elements of the necessity defense are:
          "(1) there must be a situation of emergency arising without
     fault on the part of the actor concerned;
          (2) this emergency must be so imminent and compelling as to
     raise a reasonable expectation of harm, either directly to the
     actor or upon those he was protecting;
          (3) this emergency must present no reasonable opportunity to
     avoid the injury without doing the criminal act; and
          (4) the injury impending from the emergency must be of
     sufficient seriousness to outmeasure the criminal wrong."
State v. Dapo, 143 Vt. 610, 614, 470 A.2d 1173, 1175 (1983)(quoting State v.
Shotton, 142 Vt. 558, 560-61, 458 A.2d 1105, 1105(1983).