State v. Elkins

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. 88-509


State of Vermont                             Supreme Court

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

Michael J. Elkins                            January Term, 1990


Joseph J. Wolchik, J.

James A. Hughes, Franklin County Deputy State's Attorney, St. Albans,
  for plaintiff-appellee

Kurt M. Hughes of Wool & Murdoch, Burlington, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ., and Barney, C.J.
          (Ret.), Specially Assigned


     ALLEN, C.J.   Defendant appeals from a jury verdict finding him guilty
of simple assault on a police officer in violation of 13 V.S.A. {{
1023(a)(1) and 1028.  We affirm.
     The parties do not dispute the events preceding the arrival of a
Franklin County Deputy Sheriff at defendant's home.  At approximately 10:30
p.m. on a November, 1987 evening, the deputy parked near an intersection and
sat in his cruiser running radar and completing paperwork.  The radar gun
indicated that a vehicle approaching the intersection was speeding.  The
vehicle turned onto the road where the cruiser sat and in so doing crossed
the center line of the road.  The deputy activated the cruiser's blue lights
and pursued the vehicle.  After a short distance, the vehicle turned into
the driveway of a residence.  As the deputy approached the residence, he
obtained a general description of defendant whom he observed getting out of
the vehicle.  Defendant walked toward the screened-in portion of the
residence.  The deputy pulled the cruiser with blue lights flashing in front
of the house, got out, and yelled for defendant to stop.  Defendant
hesitated for a moment, and then proceeded into the house.  The deputy
radioed the state police barracks for a license and registration check on
the vehicle, but did not wait for the response.
     The deputy entered the porch through the screen door and knocked on the
interior door of the house.  Defendant came to the door, and when the deputy
stated that he wished to speak to defendant about his operation of the
vehicle, defendant asked if the deputy had a warrant.  The deputy informed
defendant that he had witnessed the violation of two motor vehicle laws and
need not obtain a warrant before questioning him.  Defendant became
increasingly irritated with the deputy's polite but persistent questioning
and the continued flashing of the cruiser lights in front of the house.
Defendant's wife approached and said that she was the vehicle's driver.  The
deputy, however, remained unconvinced.  After putting on his shoes,
defendant followed the deputy out onto the front lawn to continue the
discussion.
     Once outside, the confrontation escalated.  Defendant demanded that the
deputy turn off the blue lights "or else he would blow them off."  In an
effort to calm defendant, the deputy turned to extinguish the cruiser
lights.  The deputy testified that he then saw defendant reach behind his
back.  The deputy turned back toward defendant and began to ask him to keep
his hands in plain view.  Before the deputy could get the full words out,
defendant swung his arm around and struck the deputy's left eye causing
pain.  The deputy then grabbed defendant.  The two fell against the house
and then to the ground as they grappled.  Defendant sustained a broken leg
in the fall.
     Defendant's evidence painted a different picture of the events that
transpired upon the deputy's arrival at the residence.  Defendant, his wife,
and his son testified that defendant closed the door on the deputy after the
deputy refused to explain what he wanted to discuss with the driver of the
vehicle.  The deputy, however, continued to bang on the door and again asked
to speak with the driver of the vehicle.  Again, defendant demanded to know
the reason for the inquiry.  This time the deputy explained that he had
witnessed the vehicle swing wide on the turn coming into town.  Defendant
then donned his shoes and accompanied the deputy to the front lawn.  The
impasse, however, continued and defendant never admitted that he was the
vehicle's driver.  Defendant denied swinging at the deputy or hitting him in
any way, but told the deputy he would not answer any more questions and was
going to bed.  As defendant began to turn to go back into the house, the
deputy tackled defendant and the two fell to the ground in front of the
porch.
     The court denied defendant's motion for judgment of acquittal.  The
jury found defendant guilty of simple assault on a police officer.
     Defendant raises the following arguments on appeal:  (1) the deputy was
not performing a lawful duty within the meaning of 13 V.S.A. { 1028; (2) the
trial court erred in its instructions regarding defendant's right not to
answer questions posed to him by the deputy; (3) the court committed plain
error in its instructions on reasonable doubt; (4) the court erred in
failing to grant defendant's motion for acquittal because there was
insufficient evidence that defendant purposefully assaulted the deputy; (5)
the court erred in failing to order a new trial; (6) the misconduct
committed by a prosecution witness constituted prejudice that required the
court to grant a mistrial.  We reject each of these arguments and affirm.
                                    I.
     Defendant contends that his entry into his residence ended the deputy's
lawful duty and left the deputy without authority to proceed onto
defendant's property.  Therefore, defendant argues that the State could not
prove that the deputy was assaulted while performing a lawful duty, an
essential element of the charge. (FN1)
     "13 V.S.A. { 1028 makes the offense of simple assault, 13 V.S.A. {
1023, a different and more serious crime when inflicted upon a police
officer performing a lawful duty."  State v. Fuller, 146 Vt. 364, 365, 503 A.2d 550, 551 (1985).  See also State v. Peters, 141 Vt. 341, 347, 450 A.2d 332, 335 (1982) (essential element of the offense that the assault occur
while the officer is performing a lawful duty).
     The deputy's observations of defendant's driving provided him with a
reasonable suspicion that defendant had committed two motor vehicle
violations.  Therefore, the deputy had the authority to make an
investigative stop.  State v. Paquette, 151 Vt. 632, 634, 563 A.2d 632, 635
(1989).  A police officer may conduct an otherwise valid investigative stop
in the semiprivate areas within the curtilage that comprise the normal
access route for anyone visiting the premises.  See  State v. Ryea,     Vt.
  ,    , 571 A.2d 674, 675 (1990) (Fourth Amendment does not absolutely
protect the curtilage, therefore police officer could conduct an
investigative stop in the residential driveway of a person suspected of
driving with a suspended license); State v. Byrne, 149 Vt. 224, 228, 542 A.2d 276, 278-79 (1988) (state officials could investigate game violation
from the steps and walkway of a home).  In People v. Kozlowski, 69 N.Y.2d 761, 513 N.Y.S.2d 101, 505 N.E.2d 611 (1987), a police officer investigating
a reported traffic incident made a warrantless entry onto the defendant's
property.  The officer walked onto the porch, opened the screen door to
knock on the front door, and then banged loudly to summon the defendant/
driver.  The officer readily observed the symptoms of intoxication and
placed the defendant under arrest after he admitted he had been drinking and
had been involved in the reported accident.  The New York Court of Appeals
explained that the officer reached the "defendant's front door by the means
the defendant had made available for public access to his house, and did not
intrude into any area in which defendant had a legitimate expectation of
privacy."  Id. at 763, 513 N.Y.S.2d 102, 505 N.E.2d  at 612.  The Court of
Appeals held that "[a]bsent evidence of intent to exclude the public, the
entryway to a person's house offers implied permission to approach and knock
on the front door," and therefore the police could utilize that access for
the purpose of making inquiry.  Id. at 763, 513 N.Y.S.2d  at 102-03, 505 N.E.2d  at 612-13.
     We agree with the reasoning of Kozlowski regarding the propriety of the
deputy's actions in the instant case.  The deputy saw the vehicle's driver
enter a residence.  The deputy acted within his authority to conduct an
investigation by approaching the house, knocking on the door, and asking to
speak to the driver of the vehicle.  See State v. Pike, 143 Vt. 283, 287-88,
465 A.2d 1348, 1351 (1983) (front porch is part of the normal route of
access for anyone visiting the premises); State v. Sanders, 374 So. 2d 1186, 1189 (La. 1979) ("It is an almost implicit understanding and custom in this
country that, in the absence of signs or warning, a residence may be
approached and the occupants summoned to the door by knocking."). (FN2)
Therefore, it was possible for the State to prove that the deputy was
performing a lawful duty when he was assaulted.
     The result would not change even if the deputy's actions contravened
the Fourth Amendment's prohibition against unreasonable search and seizure.(FN3)
In a 13 V.S.A. { 1028 prosecution, the "lawfulness of the officer's duty is
to be measured against the scope of his employment and not against the
ultimate decision regarding the technical legality of the activities in
question."  State v. Desjardins, 142 Vt. 255, 258, 454 A.2d 1230, 1231
(1982); see also State v. Fuller, 146 Vt. at 366, 503 A.2d  at 551 (even if
officer illegally recorded the defendant's telephone conversation, the
officer was not taping at the critical time -- when the assault took place).
The lesser included offense, 13 V.S.A. { 1023, requires only that an
unjustified assault occurred and { 1028 enhances the penalty if the
defendant assaults a police officer in the performance of a lawful duty.
Therefore, the lawfulness of the deputy's conduct has relevance only to the
defense issues of provocation and self-defense.  Desjardins, 142 Vt. at 259,
454 A.2d  at 1231.
                                II.
     Defendant contends that court erred by failing to instruct the jury
that they were to "draw no conclusions adverse to the defendant based on his
refusal to answer questions."  The court, over the timely objection of
defendant, charged:
         Now there has been testimony that the defendant did not
         want to answer the questions of [the deputy].  That was
         his right under the United States and Vermont Constitu-
         tions.  You are to draw no conclusions adverse to
         defendant based solely on the fact that he refused to
         answer the questions of [the deputy].

     Defendant argues that this instruction violated his rights against
self-incrimination under the Fifth and Fourteenth Amendments of the United
States Constitution and Chapter I, Article 10 of the Vermont Constitution. (FN4)
We disagree.
     The deputy and defendant offered different recollections of the events
leading up to the assault.  Defendant sought to establish that the deputy
had transgressed the bounds of his lawful duty as evidenced by his repeated
requests to speak to the driver of the vehicle.  Thus, it was defendant's
own testimony that emphasized his evasive answers to the deputy's persistent
inquiries.  The State cross-examined defendant on his repeated failure to
identify himself as the vehicle's driver in response to the deputy's
inquiries and recounted defendant's version of the events in closing.
     The instruction given cautioned the jury against drawing the unlikely
but nonetheless impermissible inference that defendant was guilty of assault
because he failed to admit that he drove the vehicle observed by the deputy.
While it is the better practice to avoid the word "solely" because it adds
nothing to the charge, we think defendant has undertaken a too technical
reading of the instruction.  "As long as the court fulfills its duty to
define the essential issues of fact and instruct on the applicable law, it
is free to choose its own language."  State v. Messier, 146 Vt. 145, 149,
499 A.2d 32, 36 (1985).  We conclude that the reasonable juror hearing this
instruction within the context of the entire charge would not be misled and
would understand it to mean that defendant's silence formed no part of the
case.  See State v. Boulware, 183 Conn. 444, 445, 441 A.2d 1, 2 (1981)
(court did not err by instructing jury that "you may not draw any
unfavorable inference as to [the defendant's] guilt merely because of his
failure or refusal to testify"); State v. Tropiano, 158 Conn. 412, 432-33,
262 A.2d 147, 156 (1969) (jury received adequate guidance from instruction
that no inference of guilt should be drawn against the defendant "for the
reason alone" that he did not testify or produce witnesses on his own
behalf), cert. denied, 398 U.S. 949 (1970).
                                   III.
     Defendant asserts that the trial court erred in charging the jury that
reasonable doubt was "a real doubt based upon reason" and that it was proof
"so convincing that persons would not hesitate to act on it in matters of
great personal importance."  Defendant raised no objection to this aspect of
the jury charge.  Therefore, we will reverse only upon a showing of plain
error.  State v. Doucette, 143 Vt. 573, 589, 470 A.2d 676, 686 (1983).
     This Court recently considered both of these efforts to explain
reasonable doubt in State v. Francis, 151 Vt. 296, 301-04, 561 A.2d 392,
395-97 (1989).  While we expressed disapproval with language of this type,
we did not reverse the conviction because of it.
                                    IV.
     Defendant contends that the State failed to introduce evidence that
fairly and reasonably tended to show that he purposefully assaulted the
deputy in the performance of a lawful duty. (FN5) Therefore, defendant argues
that the trial court erroneously denied defendant's motion for acquittal.
     In a review of a denial of a V.R.Cr.P. 29 motion for judgment of
acquittal, "we look to see if the evidence, when viewed in the light most
favorable to the State and excluding any modifying evidence, fairly and
reasonably tends to convince a reasonable trier of fact that the
defendant[] [is] guilty beyond a reasonable doubt."  State v. McBurney, 145
Vt. 201, 204, 484 A.2d 926, 928 (1984).
     Here, the State and the defense both introduced evidence that showed
that the deputy's presence at the house, his determined questioning, and the
flashing of the cruiser lights combined to aggravate defendant.  The
evidence conflicted regarding how the deputy sustained an injury to his eye.
The deputy testified that, as he turned toward the cruiser, the irate
defendant struck him in the eye with an open hand and that the blow hurt.
When viewed in the light most favorable to the State, this evidence fairly
and reasonably tended to show the purposefulness of defendant's conduct.
Therefore, the issue was appropriately committed to the province of the
jury.
                                    V.
     The trial court also denied defendant's motion for a new trial.
Defendant claims that the court erred because the conviction was based
solely upon the deputy's uncorroborated and conflicting statements and
therefore the evidence preponderated heavily against the jury's verdict.
     "[A] new trial based upon the weight of the evidence should be granted
only where the evidence preponderates heavily against the verdict and a
serious miscarriage of justice would otherwise result."  State v.
Ladabouche, 146 Vt. 279, 285, 502 A.2d 852, 856 (1985).  In deciding a
V.R.Cr.P 33 motion, the trial court may weigh the evidence and consider the
credibility of the witnesses.  Id. at 285, 502 A.2d  at 857.  The court's
decision on a new trial motion is a matter committed to the sole discretion
of the court and will stand on appeal unless defendant can show that "the
court's discretion was either totally withheld or exercised on grounds
clearly untenable or unreasonable."  State v. Jewell, 150 Vt. 281, 284, 552 A.2d 790, 792 (1988) (citations omitted).
     The court indicated that the "young and inexperienced" deputy "bungled"
the inspection of the motor vehicle violations and that he exhibited a poor
memory for "nonessential details."  However, the court found that the deputy
"relate[d] a clear statement of the essential event that was sufficiently
credible and coherent for the jury to accept" over the conflicting evidence
offered by defendant.  We conclude upon review of the record that the
evidence does not preponderate heavily against the verdict.  Therefore, the
court did not commit an abuse of discretion in denying defendant's motion
for a new trial.
                                    VI.
     Lastly, defendant claims that the trial court erred by refusing to
declare a mistrial due to a witness's misconduct while testifying. We
disagree.
     The prosecution called the Franklin County Sheriff to the stand to
testify on the issue of whether the deputy was a certified law enforcement
officer.  The sheriff appeared in civilian clothing.  His testimony
consisted of a short direct and cross-examination and the introduction of
copies of the deputy's certification letter.  Defense counsel made a number
of objections to the testimony.  The day after the sheriff's testimony and
after the jury began deliberations, defense counsel informed the court that
defendant had indicated to him that during cross-examination, the sheriff
looked toward the jury and rolled his eyes toward the ceiling.  Defendant
also alleged that a juror responded in a similar fashion.
     The court questioned the juror in chambers and in the presence of
counsel.  The juror stated that she believed that the sheriff responded by
rolling his eyes at every question asked and could not recall whether she
ever responded in kind.  The trial court later denied defendant's motion for
a mistrial.
     "Motions for mistrial are committed to the trial court's sound
discretion and should not be granted absent a showing of prejudice."  State
v. White, 150 Vt. 255, 257, 551 A.2d 1204, 1205 (1988) (citations omitted).
"There is no abuse of discretion unless the party claiming it establishes a
total failure to exercise discretion, or its exercise upon grounds that are
clearly untenable or unreasonable."  State v. Covell, 142 Vt. 197, 199, 453 A.2d 1118, 1119 (1982).
     The court, which observed the entire trial, expressed its belief that
the sheriff's "juvenile" behavior actually detracted from the State's case
and found that the juror was unimpressed by this conduct.  Further,
defendant failed to raise an objection to the sheriff's actions when a
curative instruction would have corrected any error.  See State v. Bartlett,
137 Vt. 400, 405, 407 A.2d 163, 166 (1979) (failure to move for mistrial
when facts about misconduct of a juror became known may result in waiver).
Upon review of the record we agree with the trial court that no prejudice
has been shown.  The trial court did not abuse its discretion by denying
defendant's mistrial motion.
     Affirmed.
                                        FOR THE COURT:




                                        Chief Justice



FN1.    In a related argument, defendant asserts that the deputy's entry
onto the property constituted an illegal search which tainted, and thereby
compels the exclusion of, all the evidence of the events subsequent to the
entry.  Defendant did not raise this argument before the trial court and we
decline to consider it on appeal.  See State v. Gleason, No. 87-384, slip
op. at 10 (Vt. Apr. 20, 1990).

FN2.    The record does not indicate that the porch area was "so intimately
tied to the home itself that it should be placed under the home's umbrella
of Fourth Amendment protection."  State v. Byrne, 149 Vt. 224, 228, 542 A.2d 276, 278 (1988) (citations omitted).  See also State v. Zaccaro, ___ Vt.
___, ___, 574 A.2d 1256, 1259 n.1 (1990) (evidence sufficient to establish
that porch was accessible to any member of the public wishing to contact the
residents of the house).  We leave open the question of whether, on a
different set of facts, the police must stop at the porch door when
conducting an investigation.

FN3.    Defendant also argues Chapter I, Article 11 of the Vermont
Constitution prohibited the deputy's entry onto the residential premises.
We note that defendant does not explain why or how Article 11 affords
greater protections from searches and seizures in semiprivate areas than the
Fourth Amendment.  Therefore, we decline to consider this argument on
appeal.  See State v. Muir, 150 Vt. 549, 550-51, 554 A.2d 671, 672 (1988).

FN4.    For the reasons expressed in the preceding section we do not reach
defendant's argument under the Vermont Constitution.

FN5.    Section I of this opinion disposes of defendant's claim with respect
to the deputy's performance of a lawful duty.