State v. Goyette

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. 89-440


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Gary Goyette                                 Unit No. 1, Windsor Circuit

                                             June Term, 1990


John P. Connarn, J. (Ret.), Specially Assigned

Mark T. Cameron, Windsor County Deputy State's Attorney, White River
Junction, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate
Defender, Montpelier, for defendant-appellant


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



     PECK, J.   Defendant appeals from a jury verdict convicting him of
possession of cocaine.  We affirm.
     On September 11, 1987, a confidential informant told Vermont state
police that someone from another state (FN1) would be transporting cocaine into
Vermont, would be staying at the home of Robert Stillwell, and would be
taking part in a substantial drug deal the following day.  Acting upon this
information, a state police officer went to the Stillwell residence, where
he observed two out-of-state cars, one registered to Mr. Stillwell's wife
and the other registered to defendant.
     The next morning, the informant told police that Peter Holl, a man
known to police through other drug investigations, would be introducing the
out-of-state resident to a suspected drug dealer living in Chester, Vermont.
At that point, police set up surveillance at the dealer's residence.  That
same morning, the surveillance units observed the dealer leave his Chester
residence.  Shortly thereafter, they observed Holl and defendant arrive,
stay approximately two hours, and then depart.  Defendant was a front-seat
passenger in the car, which was driven by Holl and owned by Holl's
girlfriend.
     The police followed the car after it left the residence and stopped it
approximately three or four miles from the dealer's residence.  As the
police were pulling the car over, two of the police officers noticed
defendant duck down as if he were placing or retrieving something from under
his seat.  When the car was stopped, the police officers ordered the
occupants out of the vehicle and immediately seized two bags of what
appeared to be cocaine from underneath the front passenger seat.  The two
occupants of the car were arrested after the cocaine was discovered.
     Holl pled guilty to a reduced charge and received a suspended sentence
in return for his agreement to testify against defendant.  A jury found
defendant guilty of possession of cocaine, and he was sentenced to serve
thirty months to five years.  On appeal, defendant contends that (1) the
police lacked probable cause to search the car; (2) the prosecutor elicited
exculpatory evidence from a witness under a promise of immunity and failed
to reveal the evidence to the defense in a timely manner; (3) a testifying
officer wilfully violated the trial court's order prohibiting comment about
the existence of a confidential informant; and (4) the trial court errone-
ously charged the jury that it could infer defendant's knowing possession
of cocaine from the fact that he was an occupant of the car at the time the
cocaine was found.
                                    I.
     Defendant first argues that the court erred in not suppressing the
evidence seized from the car because the police lacked probable cause to
search the car.  Specifically, defendant claims that the search violated
V.R.Cr.P. 41(c) and the Fourth Amendment of the United States Constitution
because the police had no knowledge of the source of the informant's
information.  We conclude that the police had sufficient probable cause to
search the car.
     Under the Fourth Amendment, a warrantless search of a vehicle is valid
if based on probable cause.  State v. Platt, 154 Vt. 179, 184, 574 A.2d 789,
792 (1990) (citing federal case law).  The central inquiry in determining
whether there was probable cause for the search of a vehicle is whether the
police reasonably concluded that the car contained evidence of a crime.
State v. Girouard, 135 Vt. 123, 129, 373 A.2d 836, 841 (1977).  While both
defendant and the State assume the relevance of V.R.Cr.P. 41, the Rule is
inapplicable here because it concerns the criteria for a valid search
warrant; it does not concern warrantless searches.  See State v. Brown, 151
Vt. 533, 535, 562 A.2d 1057, 1058 (1989).
     Under the federal "totality of the circumstances" standard, (FN2) the
reliability of the informant and the basis of the informant's knowledge are
but two intertwined factors that may be useful in making the commonsense
determination of whether, given all the circumstances and information
available to the police at the time of the search, there is a substantial
basis for the police's belief that there was a fair probability of finding
evidence of a crime in a particular place.  Illinois v. Gates, 462 U.S. 213,
230, 238 (1983).  The Court in Gates stated that the failure of a reliable
informant to set forth the basis of his knowledge "should not serve as an
absolute bar to a finding of probable cause based on his tip."  Id. at 233.
The Court also noted that seemingly innocent behavior might corroborate an
informant's tip predicting the behavior, thus providing the basis for a
showing of probable cause.  Id. at 243 n.13.  According to the Court, "[i]n
making a determination of probable cause the relevant inquiry is not whether
particular conduct is 'innocent' or 'guilty,' but the degree of suspicion
that attaches to particular types of noncriminal acts."  Id.
     This standard is easily met here. (FN3) In the instant case, a confidential
informant who had reliably provided tips on drug transactions in the past
stated that (1) an out-of-state resident would be transporting drugs into
the state on September 11, 1987; (2) a substantial drug deal would take
place the following day; (3) the out-of-state resident would be staying
overnight at the home of a man named Robert Stillwell; and (4) Peter Holl, a
man known to the police, would be bringing the out-of-state resident to the
home of a Chester man, another man known to police from prior drug
investigations, in order to complete the drug transaction.  Acting on the
informant's tip, the police observed that a car with out-of-state plates and
not belonging to anyone living at the Stillwell residence was parked at the
home of Robert Stillwell.  The following day, the surveillance units
observed Peter Holl and defendant arrive at the Chester residence where the
drug transaction was to take place.
     We conclude that police corroboration of the predicted movements,
coupled with the fact that police officers observed defendant bend down in
the car as if he were placing something under the front passenger seat, was
sufficient information for the police to believe at the time of the search
that there was a fair probability of finding evidence of a crime in the car.
The details provided by the informant were substantial enough, and the
actions of defendant, taken as a whole and considering police corroboration
of the informant's prediction of these actions, were suspicious enough, for
the police to reasonably believe that there were drugs in the car.  The
court did not err in denying defendant's motion to suppress.

                                    II.
     Next, defendant argues that he should be granted a new trial because
the prosecutor elicited exculpatory evidence from a witness under a promise
of immunity but failed to reveal this information to the defense until after
the evidence was closed.  Defendant initially sought to depose Robert
Stillwell, at whose home defendant stayed the night before he was arrested,
but Stillwell's attorney told defendant that Stillwell would invoke the
Fifth Amendment in response to questions at the deposition and at trial.
Later, the State informed Stillwell, who had been listed as a witness for
both the defense and the State, that it would give him use immunity in
return for his testimony that he knew defendant and that defendant stayed at
his house the night before the arrest.  Stillwell stated to the prosecutor
that he knew defendant and that defendant had stayed at his house that
night.  During that conversation, he also stated that he did not believe
Peter Holl, who apparently had told police that Stillwell was involved in
the drug transaction.  Because ultimately defendant did not testify at
trial, the State did not call Stillwell as a witness.
     Defendant argues that Stillwell's refutation of Holl's story was
exculpatory, and that the prosecutor should have turned the information over
to the defense.  Because we conclude that Stillwell's comments to the
prosecutor were not sufficiently material to defendant's guilt, and that the
State did not act with the deliberate intention of distorting the judicial
factfinding process, we need not consider the broader issue of whether the
court should have compelled the prosecution to grant immunity to Stillwell
as a defense witness.  See State v. Hamlin, 146 Vt. 97, 107-08, 499 A.2d 45,
53 (1985).
     The prosecution violates due process when it fails to disclose evidence
favorable to the accused and material to the accused's guilt or punishment.
State v. Goshea, 137 Vt. 69, 75-76, 398 A.2d 289, 293-94 (1979).
"[E]vidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different.  A 'reasonable probability' is a probability
sufficient to undermine confidence in the outcome."  United States v.
Bagley, 473 U.S. 667, 682, 685 (1985); see Pennsylvania v. Ritchie, 480 U.S. 54, 57 (1987).  Thus, a conviction should be reversed only if the withheld
evidence "creates a reasonable doubt that did not otherwise exist."  United
States v. Agurs, 427 U.S. 97, 112 (1976); see State v. Sird, 148 Vt. 35, 37-
40, 528 A.2d 1114, 1115-16 (discussing development of Agurs-Bagley standard
and employing it to analyze claim under Vermont Constitution). (FN4)
       Upon examining the record, we agree with the trial court that
Stillwell's statement to the prosecutor was largely cumulative, and that
there is "no reasonable likelihood" that the inclusion of his testimony
regarding that statement would have affected the outcome of the trial.  It
is hardly surprising, notwithstanding the grant of use immunity, that
Stillwell would challenge the veracity of a witness who implicated him in a
crime.  Stillwell's statement would have added little to the defense's
vigorous attack on Holl's credibility.  During his cross-examination of Holl
and again during his closing argument, defense counsel brought out in great
detail how much Holl had to gain by "fingering" defendant, pointed out
several inconsistencies in statements made by Holl before and during trial,
and emphasized Holl's drug-dealing past.  The court was well within its dis-
cretion in concluding that there was no reasonable probability that the
presentation of Stillwell's testimony would have affected the jury's
assessment of Holl's credibility.  See State v. Briggs, 152 Vt. 531, 542,
568 A.2d 779, 785 (1989) (trial court's decision on motion for new trial
will not be disturbed on appeal unless defendant shows that the court's
discretion was withheld or abused); see also United States v. Petrillo, 821 F.2d 85, 88 (2d Cir. 1987) (the trial court's decision on whether to grant a
new trial because of the prosecutor's failure to turn over exculpatory
evidence is given great deference "because it presided over the trial and is
better able to determine the effect the new material would have had").
                                   III.
     Defendant next argues that his conviction should be reversed because
one of the State's witnesses, a police officer, wilfully violated the trial
court's order prohibiting comment about a confidential informant.  During
direct examination, the police officer responded to a question by testifying
that he went to a certain location "directly after I got the call from the
informant."  Defendant contends that the officer's reference to an informant
must have been wilful because he had just been reminded by the prosecutor
"not to mention the confidential informant in this case," and defendant
reported later that he had observed the officer wink at the prosecutor
after making the statement.  We do not agree.  There is nothing in the
record that corroborates defendant's contention that the officer winked or
otherwise demonstrated his wilful violation of the court's order.  Although
the officer's testimony went beyond what the parties and the court had
agreed to -- the police could indicate only that they were at a particular
place at a particular time because they had "received information" -- the
trial court did not abuse its discretion in refusing to call a mistrial.
Unlike the case cited by defendant, State v. Braxter, 568 A.2d 311, 313-15
(R.I. 1990), where the appellate court vacated a conviction because the jury
had been permitted to hear an officer's testimony recounting the substance
of his conversation with an informant, the officer's testimony here did not
entail any specific hearsay statement tending to prove defendant's guilt.
In short, we fail to see any prejudice resulting from the officer's comment.
See State v. Turner, 145 Vt. 399, 402, 491 A.2d 338, 340 (1985) (mistrial
should not be granted absent prejudice, and trial court decision on motion
for mistrial should not be disturbed on appeal absent abuse of discretion).
                                    IV.
     Finally, defendant argues that his federal and state due process rights
were violated when the court permitted the jury to infer that defendant was
knowingly in possession of the cocaine found under the front seat of the car
in which he rode as a passenger.  We disagree.
     Vermont law provides that, with certain exceptions, the "presence of a
regulated drug in an automobile . . . is presumptive evidence of knowing
possession thereof by each and every person in the automobile at the time
such drug was found."  18 V.S.A. { 4221(b).  Pursuant to V.R.E. 303 and
recent Vermont case law, see, e.g., State v. McBurney, 145 Vt. 201, 205, 484 A.2d 926, 928-29 (1984) (unlike mandatory presumption, permissive inference
permits but does not require trier of fact to find presumed fact and thus
places no unconstitutional burden on defendant; whether charge given imposed
a mandatory or permissive presumption depends on how a reasonable juror
would have interpreted charge), the court's charge to the jury presented
this statutory "presumption" as a "permissive inference":
               Coming to the offense of possession of cocaine
          alleged by the State, the following are the elements of
          the offense, each of which you must find to be proven by
          the State beyond a reasonable doubt on the date and
          place alleged.

               . . . .

               . . . [I]n order to establish that the Defendant
          had possession of the substance in question, the State
          must prove beyond a reasonable doubt that he exercised
          dominion and control over it and had the power and the
          intention to exercise dominion and control over it.

               Possession of drugs cannot be found solely on the
          ground that the Defendant was near or close to the drug,
          nor can it be found simply because the Defendant was
          present at the scene or drugs were involved or solely
          because the Defendant associated with a person who did
          control the drugs or the property where they were found.

               In order to find the Defendant was in constructive
          possession of drugs found in a car, you must find that
          the Defendant actually knew about the presence of the
          drugs and intended to exercise control over them.

               . . . .

               The presence of a regulated drug in an automobile .
          . . permits you the jury to infer the knowing possession
          of such a regulated drug by each and every person in the
          automobile at the time such drug was found.

               . . . .

               If you decide beyond a reasonable doubt that a
          regulated drug was present in the automobile at the same
          time that the Defendant and Peter Holl were in such an
          automobile, that neither was legally authorized to
          possess the drug, and that the drug wasn't concealed
          [upon the person of one of the occupants], then you are
          permitted but not compelled to infer that both the
          occupants knowingly possessed the drug in the vehicle.

               In other words, you may draw the inference that
          both individuals were in possession of the cocaine, but
          you do not have to.  You must consider all of the
          circumstances tending to support or contradict the
          inference in determining whether to apply or reject the
          inference.

               The presumption of innocence also comes into play
          here, however; and if the only evidence of guilt is this
          inference of knowledgeable possession, that is not
          enough to overcome the presumption of innocence.

               If, however, you find that there is other evidence
          which makes it more likely that the Defendant knowingly
          possessed the regulated drug, then you may apply the
          inference.  If the State has not proven beyond a
          reasonable doubt that the Defendant was present in the
          motor vehicle at the time the regulated drug was present
          or that the regulated drug was not legally possessed by
          the Defendant, or that the drug was not concealed upon
          the person of one of the occupants, then you may
          disregard the inference that the Defendant knowingly
          possessed a regulated drug.

               If you decide to disregard the inference, you must
          find the Defendant guilty beyond a reasonable doubt or
          not guilty based on your consideration of the remaining
          evidence.
     Defendant contends that the last two paragraphs of the charge
erroneously presented the threshold question -- whether the inference should
be charged at all -- thereby confusing the jury into thinking that it need
find only by a preponderance of the evidence (more likely than not) that
defendant knowingly possessed the cocaine.  We agree that the "more likely"
language was ill-advised, but we conclude that, taken in its entirety, the
charge satisfactorily stated the law.  See State v. Day, 150 Vt. 119, 123-
24, 549 A.2d 1061, 1064 (1988) (although charge was not as clear as might be
desired, it breathed true spirit and doctrine of law); State v. Bishop, 128
Vt. 221, 230-32, 260 A.2d 393, 399-400 (1969) (when charge, taken as a
whole, breathes true spirit and doctrine of the law, it may stand even if it
contains expressions that, taken alone, would be erroneous).
     In criminal cases, the court may instruct the jury that an inference
operating against the accused permits, but does not require, the jury to
find the existence of the presumed fact (e.g., knowing possession of
cocaine) if the State proves the existence of the basic fact (e.g., presence
of person in car at time cocaine is found in car).  V.R.E. 303(b).  If, as
is the case here, the presumed fact establishes guilt or is an element of
the offense, the court may instruct the jury on the inference "only if a
reasonable juror on the evidence as a whole, including the evidence of the
basic fact, could find guilt or the presumed fact beyond a reasonable
doubt."  V.R.E. 303(c).  Further, V.R.E. 303(d) requires the court to
instruct the jury that the presumed fact's existence, considering all the
evidence, must be proved beyond a reasonable doubt.
     We first point out that the court did not err in deciding to instruct
the jury on the permissive inference.  Based on the evidence presented at
trial, including testimony that defendant reached under the front car seat
as he was being pulled over, a reasonable juror could have found the
existence of the presumed fact (defendant possessed the cocaine) beyond a
reasonable doubt.  As to the charge itself, the court repeatedly instructed
the jury that the State had to prove each element of the charged crime,
including knowing possession, beyond a reasonable doubt.  Cf. People v.
Hester, 131 Ill. 2d 91, 101, 544 N.E.2d 797, 802 (1989) (although contested
jury instruction on presumption did not contain "beyond reasonable doubt"
language, instruction sufficient where standard was included in later
section of instruction).  The court emphasized that the State had to prove
more than the fact that defendant associated with someone who had control of
the cocaine; it had to prove that defendant knew about the cocaine and
intended to exercise control over it.  The court stated that the jury could
accept or reject the inference that defendant was in possession of the
cocaine, and that the inference, by itself, could not overcome the
presumption of defendant's innocence.
     The court then stated that if other evidence, however, made it "more
likely that the Defendant knowingly possessed the drug, than you may apply
the inference."  We note that, even if the court intended to invoke a "more
likely than not" standard, the challenged sentence does not do so on its
face.  The sentence appears only to reinforce the previous sentence, which
emphasizes that the inference alone would be insufficient to convict
defendant.  We do not believe that the sentence lessens the State's burden
to prove each element of the charge, particularly when it is considered in
the context of the entire charge.
     Defendant also argues that the last two sentences of the above-quoted
section imply (1) that the jury may not disregard the inference if the State
proves any of the three facts noted, and (2) that the jury need not find
defendant guilty beyond a reasonable doubt if it decides to accept the
inference.  Although we agree that those sentences are somewhat confusing
and that a hypertechnical reading of them might lead to the implications
suggested by defendant, we cannot agree that, read in the context of the
entire charge, the sentences constitute reversible error.  See State v.
Percy, 1 Vt. L.W. 371, 373 (Oct. 5, 1990) (although instruction may have
subtly perpetuated incorrect presumption that witness is telling the truth,
no error when considered in light of entire charge); State v. Francis, 151
Vt. 296, 302, 561 A.2d 392, 396 (1989) (though potentially misleading,
instruction on reasonable doubt did not constitute reversible error).  In
determining whether an instruction on an inference in a criminal case has
violated due process, the crucial inquiry is whether the court's
instructions have undermined the jury's responsibility at trial to find that
the State has proved each and every element of the crime with which the
defendant is charged beyond a reasonable doubt.  E.g., State v. Hudson, 247
Ga. 36, 38, 273 S.E.2d 616, 617-18 (1981).  We conclude that neither the
court's charge nor any comments to the jury by the prosecutor undermined the
jury's responsibility here.
     Defendant argues, however, that in this case, unlike Ulster County
Court v. Allen, 442 U.S. 140, 163-64 (1979), there is no rational connection
in terms of logical probability between the basic fact and the presumed
fact.  Therefore, according to defendant, submission of the inference to the
jury violated due process.  We disagree.
     In considering whether a statutory inference is rational, courts should
evaluate the inference based on the record of the case before it rather than
rule on the constitutionality of the statute on its face.  Allen, 442 U.S.
at 162-63; see Harley v. State, 737 P.2d 750, 755 (Wyo. 1987) (established
facts in case demonstrated commonsense justification of statutory
inference).  Examining the record in this case, including the fact that the
police had received information leading them to set up a surveillance unit
at the residence where defendant showed up and the fact that the police
observed defendant reach under the seat as he was being pulled over, we
cannot say that the inference was irrational here.

     Affirmed.

                              FOR THE COURT:


                              ________________________________________
                              Associate Justice



FN1.    The informant did not name the person, who turned out to be defendant.

FN2.    The precise standard under the United States Constitution for
determining whether there is probable cause for a warrantless search is not
entirely clear; however, the "totality of the circumstances" standard
announced in Illinois v. Gates, 462 U.S. 213, 238-39 (1983), is generally
accepted as the probable cause benchmark in warrantless situations.  1 W.
LaFave, Search and Seizure { 3.1(c), at 551 (2d ed. 1987); see Eisenhauer v.
State, 678 S.W.2d 947, 952 (Tex. Crim. App. 1984) (en banc) (construing
Fourth Amendment, court held that Gates "totality of circumstances" standard
"is applicable to warrantless arrests and searches").  But cf. United States
v. Ventresca, 380 U.S. 102, 106 (1965) ("in a doubtful or marginal case a
search under a warrant may be sustainable where without one it would fall").

FN3.    Indeed, the facts of this case would most likely have satisfied the
more precise Aguilar-Spinelli standard that was abandoned in Gates.  Strong
police corroboration of the details of an informant's tip predicting
movements that are seemingly innocent but suspicious when considered
together may satisfy the "basis of knowledge" prong of that test.  W.
LaFave, supra note 2, { 3.3(a) at 618; e.g., United States v. Young, 567 F.2d 799, 802 (8th Cir. 1977) (probable cause for warrantless search existed
where police had received tip that on certain day a rental truck escorted by
a particular car and passenger would be carrying stolen merchandise across
state line, and truck took unusual route at night to arrive at destination),
cert. denied, 434 U.S. 1079 (1978); Commonwealth v. Robinson, 403 Mass. 163,
166, 526 N.E.2d 778, 780 (1988) (where police corroborated information
describing the defendant's appearance and predicting the defendant's time of
arrival at a particular destination, "basis of knowledge" prong of Aguilar-
Spinelli test was satisfied).

FN4.    Neither the parties nor the leading federal cases discuss who has
the burden of showing that the prosecution's failure to disclose certain
evidence creates a reasonable doubt in the outcome of the trial.  Certain
language in two recent Vermont cases suggests that the burden of proof lies
with the defendant, see State v. Sird, 148 Vt. 35, 39, 528 A.2d 1114, 1116
(1987) ("nor has defendant demonstrated prejudice"); State v. Gibbons, 146
Vt. 342, 344, 503 A.2d 540, 541-42 (1985) (per curiam) ("defendant failed to
demonstrate that . . . the result of the proceeding would have been
different"), but it could be argued that the quoted language implies only
that the defendant has an initial burden of coming forward with evidence
that he was prejudiced.  We need not address the question here because, even
if the burden of proof was on the State, the court's refusal to grant a new
trial was not an abuse of discretion.