State v. Hugo

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. 89-149


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
David J. Hugo                                Unit No. 2, Addison Circuit

                                             February Term, 1990


Hilton H. Dier, Jr., J.

John T. Quinn, Addison County State's Attorney, Middlebury, and Gary S.
   Kessler, Resource Attorney, Department of State's Attorneys, Montpelier,
   for plaintiff-appellee

Bonnie Barnes and Sandra Everitt of Sessions, Keiner, Dumont & Barnes,
   Middlebury, for defendant-appellant


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



     PECK, J.   Defendant was charged with operating a motor vehicle on a
public highway while under the influence of intoxicating liquor in violation
of 23 V.S.A. { 1201(a)(2), and also with operating a motor vehicle with .10%
or more by weight of alcohol in his blood in violation of 23 V.S.A. {
1201(a)(1).  At trial the jury returned a guilty verdict on each count. The
trial judge subsequently dismissed the excessive blood-alcohol count pur-
suant to 23 V.S.A. { 1201(c) (formerly 23 V.S.A. { 1201(f)), which prohibits
more than one conviction under { 1201 arising out of the same incident.
Defendant appeals his remaining conviction.  We affirm.
     Although defendant raises six issues for our review, only four were
properly preserved for appeal: (1) whether the court erred by not permitting
the arresting officer to testify that defendant told him he was dyslexic;
(2) whether the court committed reversible error by excluding testimony of
defendant's father regarding his prior observations of his son's difficulty
in performing physical tasks as a result of dyslexia; (3) whether the court
failed to instruct the jury it need not presume that defendant was under the
influence of intoxicating liquor based upon a finding that there existed a
.10% or more by weight of alcohol in his blood; and (4) whether the court
erred by failing to instruct the jury it could not find defendant guilty of
violating both 23 V.S.A. { 1201(a)(1) and 23 V.S.A. { 1201(a)(2), where the
charges arose out of the same incident.  The two remaining issues are: (1)
whether the trial court erred by refusing to admit defendant's testimony
that he suffers from dyslexia; and (2) whether the court failed to clearly
separate the elements of the two charges.
     The basic facts are not in dispute.  At 10:30 in the evening on June
13, 1986, a Vermont state trooper on routine patrol observed a vehicle
traveling northbound in excess of the fifty mile-per-hour speed limit on
Route 7 in Ferrisburg.  The trooper pursued, activated his blue lights, and
caught up with the vehicle as it slowed for a traffic signal at a nearby
bridge construction site.  Rather than come to a stop, the vehicle pulled
onto the right shoulder of the roadway and passed another car which had
stopped in the traveled portion of the road for a red traffic signal.  At
this point the trooper briefly activated his siren and the vehicle came to a
halt.
      The trooper found two persons in the car.  Twenty-year-old defendant
was the driver, and a male companion sat in the front passenger seat.
During his initial conversation with defendant, the trooper detected a
strong smell of alcohol on defendant's breath and observed that he had
bloodshot eyes, a flushed face and slurred speech.  There were a number of
empty beer cans on the floor behind the front seat.
     Suspecting that the driver might be intoxicated, the trooper asked him
to step to the rear of the car to perform some field sobriety tests.
Defendant cooperated, but was unable to perform the tests successfully.  The
trooper placed defendant under arrest, drove him to the Vergennes Police
Department and processed him for driving while under the influence of
intoxicating liquor.  Defendant consented to a standard breath test at 11:21
p.m..   Based on this test, a chemist testified at trial that defendant's
blood-alcohol count was .13% at the time he was stopped.
     At the station, defendant admitted that he and his companion began
drinking  beer at 6:30 that evening in Hyde Park, New York.  Defendant
stated that he drank only two beers before beginning the drive to Vermont
but admitted consuming four more beers at various points during the three
and one-half hour trip, the last of which he finished just ten minutes prior
to being stopped by the officer.  In response to a question on the DUI pro-
cessing form as to whether he thought he was under the influence of alcohol,
defendant replied, "[a]t this time, yes."  When asked whether he had any
physical handicaps, defendant informed the trooper that he suffers from
dyslexia.
     Defendant was tried and convicted of driving while under the influence
of intoxicating liquor.  This appeal followed.
                                    I.
     Defendant argues, first, that the court should have allowed the
arresting officer to testify that defendant told him he was dyslexic.  He
argues that the information was admissible as a statement of a party
opponent.  The State notes that defendant did not clearly object to the
exclusion.  Although there is some question as to whether defendant properly
saved the issue for review, we address defendant's claim because the court
was alerted to the claimed error and the substance of the evidence to be
presented was apparent from the context. (FN1) See V.R.E. 103(a)(2)(where ruling
is one excluding evidence, the substance of the evidence must be made known
to the court by offer or be apparent from the context); Camp v. Howe, 132
Vt. 429, 433, 321 A.2d 71, 73 (1974)(test to determine whether an
evidentiary ruling has been preserved for our review is "'whether or not the
trial court has been so alerted to the claimed error that it had a fair
opportunity to correct itself if it chose'")(quoting Dodge v. McArthur, 126
Vt. 81, 83, 223 A.2d 453, 454 (1966)).  We conclude that exclusion of the
officer's testimony was appropriate.
     Under V.R.E. 801((d)(2) prior statements by a party offered against
him/her are not hearsay.  The rule requires, however, that "the admission at
issue be contrary to a party's position at trial."  United States v. Palow,
777 F.2d 52, 56 (1st Cir. 1985) (interpreting the nearly identical federal
rule).  Defendant's statement to the officer that he is dyslexic is not
contrary to the position he took at trial and is, therefore, not encompassed
by Rule 801(d)(2). (FN2)

                                    II.
     Next, defendant contends that his father's testimony, excluded
following a motion in limine by the state, was admissible as both relevant
opinion testimony from a lay witness under V.R.E. 701 and as expert
testimony under V.R.E. 702 based on the witness's knowledge of and
experience with dyslexia.  Defendant claims that exclusion of the testimony
violated his constitutional rights.  The court granted the State's motion in
limine to exclude the testimony on two grounds: (1) that defendant failed to
notify the State that his father would be called as a witness until the
initial trial date, which came ten days after the jury drawing and nearly
two and one-half months after the deadline set in the pretrial discovery
order; and (2) that the witness was not competent to testify about his son's
performance on the field dexterity tests since he was not a medical expert
and had never observed his son perform under similar conditions. (FN3) Since the
trial court did not abuse its discretion in excluding the testimony as a
sanction for a discovery violation, we need not consider whether defendant's
father was competent to testify about his son's physical handicap.
     The trial court has broad discretion over what sanction to impose for a
discovery violation, and our review is limited to abuse of that discretion.
State v. Edwards, 153 Vt. 649, 649, 569 A.2d 1075, 1076 (1989)(mem.);
V.R.Cr.P. 16.2(g)(1); Reporter's Notes V.R.Cr.P. 16.2 (provision "carries
forward the discretion as to sanctions" recognized under prior law).
Preclusion of the testimony was within the trial court's discretion.  First,
because the witness was the defendant's father, his evidence "could have
been uncovered and disclosed earlier," see Edwards, at 649, 569 A.2d  at
1076.  Second, defendant offered only vague assertions in support of his
contention that his father qualified as an expert on dyslexia. (FN4) Thus, the
court had reason to believe the testimony offered would be largely a
repetition of defendant's own testimony about his physical limitations.
     Defendant argues further that the court's refusal to accept his
father's testimony constituted a violation of his fundamental right to call
witnesses on his own behalf under Chapter I, Article 10 of the Vermont
Constitution and under the Sixth and Fourteenth Amendments to the United
States Constitution.  "In appropriate circumstances, [however,] preclusion
of witnesses as a discovery sanction does not offend defendant's right to
compulsory process for obtaining witnesses in his favor under the Sixth
Amendment to the United States Constitution" or the Vermont Constitution.
Edwards, at 649, 569 A.2d  at 1076 (citing Taylor v. Illinois, 484 U.S. 400
(1988)).  In considering the constitutionality of a discovery sanction, this
Court "must weigh defendant's right to offer testimony of favorable
witnesses against '[t]he integrity of the adversary process . . ., the
interest in the fair and efficient administration of justice, and the
potential prejudice to the truth-determining function of the trial process .
. . .'" Id. (quoting Taylor, 484 U.S. at 414-415).  We find it implausible
that defendant could not have uncovered and disclosed information about his
own father until the morning of the initial trial date.  See, e.g.,
Commonwealth v. Porcher, 26 Mass. App. 517, 519, 529 N.E.2d 1348, 1350
(1988) (witness preclusion for late disclosure justified if "the explanation
is unconvincing and suggests desultory preparation").  Furthermore, since
defendant was permitted to testify in detail about his physical disability,
his father's testimony would have been largely cumulative.  See  Edwards,
at 649, 569 A.2d  at 1076 (one circumstance justifying trial court's sanction
of preclusion of witnesses was cumulative nature of witnesses' testimony).
Accordingly, under the Edwards balancing test, witness preclusion was
justified.

                                   III.
     Defendant also maintains (1) that the trial court's instruction did not
make clear that the inference of intoxication raised by the .10% blood-
alcohol count was permissive and (2) that it, therefore, unconstitutionally
shifted the burden of proof to him.  Here, too, we disagree.
          The threshold inquiry in ascertaining whether the jury
     instruction given by the court constitutes reversible error is to
     determine the nature of the presumption it describes.  If it is
     mandatory, that is, conclusive or burden-shifting, it violates
     defendant's right to due process of law.  If, on the other hand,
     an instruction could only be interpreted as a permissive
     inference, one which allows but does not require the trier of fact
     to find the inferred fact from the basic fact and which places no
     burden of any kind on the defendant, it is not unconstitutional.

          Whether an instruction is mandatory or permissive hinges on
     "the way in which a reasonable juror could have interpreted" it.

State v. Dusablon, 142 Vt. 95, 98, 453 A.2d 79, 81 (1982)(citations
omitted)(quoting Sandstrom v. Montana, 442 U.S. 510, 514 (1979)).  In
determining what a reasonable juror could have understood, a single
instruction should not be viewed in isolation; rather, it should be viewed
in the context of the overall charge. Id.
     The trial court instructed the jury that it was permitted to infer that
defendant was under the influence of intoxicating liquor if it found that
defendant was operating a motor vehicle and also that there was .10% or
more by weight of alcohol in his blood at the time.  It further advised the
jury that it need not make such an inference, stating:
          You are always free to disregard the inference.  That
          is, the inference cuts off no defense and the defendant
          remains at liberty to introduce  evidence to show that,
          in spite of the blood  test results, he was not under
          the influence of intoxicating liquor.  If you choose to
          apply this inference, it does not compel the defendant
          to produce any evidence to overcome its effect or to
          explain away the test results.

     This charge may not have been as clear as might be desired; moreover it
alluded to the defendant's ability to introduce evidence, a practice of
which we disapprove.  The trial court, however, repeatedly instructed the
jury that defendant was to be presumed innocent, that he had the absolute
right to remain silent and that the entire burden rested upon the State to
prove each element of the crime beyond a reasonable doubt.  It also stated
that the jury was entitled to disregard the inference created by
defendant's blood-alcohol level.  In light of the entire charge, we believe
that a reasonable juror would have interpreted the court's statement as
creating a permissive inference rather than as shifting to defendant the
burden of proof.
                                     IV.
     Finally, we address defendant's claim that the court's jury
instructions improperly allowed the jury to convict him for violations of
both 23 V.S.A. { 1201(a)(1) and { 1201(a)(2), thereby subjecting him to
double jeopardy.  Although 23 V.S.A. { 1201 permits the State to charge a
defendant with both driving while there is .10% or more alcohol in the blood
and with driving while under the influence of intoxicating liquor, the
statute expressly prohibits multiple convictions arising out of the same
incident.  23 V.S.A. { 1201(c); see State v. Coulombe, 143 Vt. 631, 633-634,
470 A.2d 1179, 1181 (1983).  Here, the trial court erroneously permitted
the jury to return guilty verdicts on both counts, but subsequently
dismissed the excessive blood-alcohol conviction, thus granting defendant
the only remedy to which he is entitled.  See Ball v. United States, 470 U.S. 856, 865 (1985)(where defendant could not be convicted and sentenced
for receiving and possessing the same weapon because a single act
established both the receipt and the possession, remedy was for the district
court to vacate one of the convictions); United States v. DiGeronimo, 598 F.2d 746, 749-753 (2d Cir.)(plain error in failing to instruct jury that
defendants could not be convicted of both interference with interstate
commerce by means of robbery and of knowing receipt and possession of stolen
goods did not warrant new trial where it could be concluded with
satisfactory certainty that jury, having convicted of two offenses, would
have convicted of only one had it been properly instructed, and proper
remedy was to vacate the conviction on one count) cert. denied, 444 U.S. 886
(1979).

                                     V.
     Defendant argues that the trial court erred by forbidding him to
identify himself as dyslexic.  The court ruled that, in the absence of
evidence that he was diagnosed as dyslexic by a medical doctor, defendant
could only describe his symptoms but could not state that he is dyslexic.
On appeal defendant argues that dyslexia is a commonly used term amenable
to use by a lay person but this argument was not properly preserved.  When
the issue of whether defendant could identify himself as dyslexic was
discussed, counsel for defendant stated "I will be asking him merely
questions about his physical signs and symptoms to which he referred when he
spoke to the officer."  In response to the court's comment that dyslexia is
a term incapable of an informal medical definition, counsel for defendant
stated "I will go along with that."
     Since defendant failed to adequately preserve the issue, we may not
reverse in the absence of plain error.  V.R.Cr.P. 52(b).  Here, where
defendant was permitted to testify at length about his physical symptoms,
despite the court's prohibition against using the word dyslexia, there was
no plain error.

                                    VI.
     Defendant correctly argues that the court failed to clearly separate
the elements of the two charges but he did not preserve this issue for
review. (FN5) The claim must, therefore, be reviewed under the plain error
standard, V.R.Cr.P. 52(b), and there was no plain error here.  The court did
lay out the elements of the driving-while-under-the-influence charge.
Evidence that defendant was driving under the influence was overwhelming.
Moreover, all the evidence introduced at trial was relevant to the charge
that defendant was driving under the influence.  Thus, the jury could not
have erroneously used evidence relevant only to the .10% blood-alcohol
charge to convict defendant of the under-the-influence charge.  Although
evidence admissible to show that defendant was under the influence may have
been erroneously considered by the jury to convict the defendant of the .10%
blood-alcohol charge, see Coulumbe, at 634, 470 A.2d  at 1181, the .10%
blood-alcohol conviction was dismissed.  Defendant was not prejudiced by the
court's failure to separate the elements of the two charges, nor does
defendant claim that the error affected any substantial right.  Accordingly,
plain error did not occur.  See State v. Ross, 152 Vt. 462, 468, 568 A.2d 335, 339 (1989).
     Affirmed.


                                        FOR THE COURT:



                                        ___________________________________
                                        Associate Justice




FN1.    On cross-examination of the arresting officer, defendant's counsel
asked the officer what defendant's response to an inquiry about physical
handicaps had been.  The State objected on the ground that the officer's
answer would be hearsay, and the court upheld the objection on the ground
that the testimony was irrelevant.  Defendant's counsel argued that the
statement was admissible as a statement of a party opponent, but, when the
court explained its conclusion that the statement was irrelevant, stated
only "Thank you.  That's helpful."

FN2.       The trial court excluded the evidence on the ground that it was
irrelevant.  Defendant on appeal contends that the evidence was relevant and
that it was not hearsay, since it was not offered to show the truth of the
matter asserted, see V.R.E. 801(c).  These arguments were not made to the
trial court and, absent plain error, we need not address them.  In any
event, while the testimony may have been relevant to show the truth of the
matter asserted - i.e. that defendant is dyslexic - it would have
constituted inadmissible hearsay had it been introduced to prove this fact.
Defendant has not shown how the evidence was relevant other than to show he
was dyslexic.  Since defendant only told the officer that he is dyslexic
after he was arrested, there is no issue as to the effect of the officer's
knowledge of defendant's handicap on probable cause for arrest.  Thus, if,
as defendant contends, the evidence was not offered to show the truth of the
matter asserted, then it was, as the trial court concluded, irrelevant.
Exclusion was clearly appropriate.

FN3.      Defendant maintains that the court merely alluded to his failure
to properly abide by the discovery schedule and excluded his father's
testimony solely on grounds of incompetency.  The court stated clearly,
however, that exclusion of the testimony was due, in part, to the lack of
notice given to the State.

FN4.      On appeal defendant contends that his father "has read widely on
[dyslexia] and consulted with medical and educational experts."  At trial,
however, defendant merely alleged that his father was an expert on dyslexia
"based on his years of knowledge about the condition of dyslexia and
personal experience with the condition," and stated that he would not ask
his father to give a medical opinion about dyslexia but would elicit
testimony about defendant's difficulties in performing tasks involving fine
motor coordination and eye-hand coordination.

FN5.    On appeal, defendant uses, as an example of the confusion caused by
the court's failure to separate the elements of the two charges, the fact
that the court's use of the phrase "in the slightest degree" in its charge
may have confused the jury in its consideration of the .10% blood alcohol
charge.  At trial, however, defendant only objected to the use by the court
of the phrase "in the slightest degree" on the grounds that the use of this
phrase was unconstitutional and that it shifted the jury's focus, in
considering the under-the-influence charge, from the issue of intoxication
to the issue of quantity consumed.  This objection does not translate into
an objection on the ground of jury confusion regarding the .10% blood-
alcohol charge.  Nor does it translate into an objection to the court's
failure to clearly distinguish the elements of the offenses charged.  An
objection presented on one ground, which is properly resolved on that
ground, does not preserve a claim for appeal on new grounds.  State v.
Ramsay, 146 Vt. 70, 75, 499 A.2d 15, 19 (1985).