State v. Seagroves

STATE_V_SEAGROVES.92-287; 161 Vt. 309; 637 A.2d 1379

[Filed 28-Jan-1994]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-287


 State of Vermont                             Supreme Court

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

 Christopher Seagroves                        October Term, 1993



 Edward J. Cashman, J.

 Howard VanBenthuysen, Franklin County State's Attorney, St. Albans, for
    plaintiff-appellee

 Robert Paolini of Martin & Paolini, Barre, for defendant-appellant



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



      MORSE, J.   Defendant was convicted on several charges, including grand
 larceny, 13 V.S.A. { 2501, for stealing a $30,000 car that he rolled onto
 its roof in a high-speed crash.  On appeal, he claims the court should have
 granted his motion to dismiss the charges because the State had nol prossed
 them all at a jury drawing and then refiled them ten days later.  Defendant
 also contends he is entitled to a new trial because the prosecution
 commented on his right to remain silent and because the grand larceny
 instruction to the jury was erroneous.  We affirm.
      After work on May 18, 1989, defendant stole a Cadillac from his
 employer, the Handy automobile dealership, and went for a high-speed drive.

 

 A deputy sheriff on patrol in Fairfax clocked defendant at 122 miles per
 hour on Route 104 and pursued him.  Unable to keep pace with the speeding
 car, the deputy abandoned the chase.  A few minutes later he received a
 radio message concerning an accident on Route 104.  He eventually found the
 "steaming wreckage" of the Cadillac he had earlier pursued in a front yard
 off the road.  No one could be found at the accident scene, but a short time
 later the deputy located defendant being treated for injuries at a nearby
 hospital.  After the deputy issued defendant a speeding ticket, defendant
 asked him, "So, how fast was I going when you clocked me?"  Later defendant
 told another investigating officer that he had been hitchhiking and was
 picked up by an unknown man driving the Cadillac.  At trial, defendant did
 not testify, but called a friend, Darren Ransome, to testify that he had
 seen defendant hitchhiking on Route 104 on the evening in question.  The
 court allowed Ransome's testimony even though he had not been disclosed as a
 witness until the day of the jury drawing and was not produced for the
 State's deposition until late afternoon the day before trial.
                                     I.
      Approximately three years elapsed between the accident in May 1989 and
 the trial in early spring 1992.  In the interim, on July 17, 1990, the
 State dismissed ("nol prossed") the charges at a jury drawing after the
 court denied its motion to continue.  The State was not ready to proceed to
 trial at that time because it could not schedule some of its witnesses.
 Defendant did not object to the dismissal.  The charges were refiled on
 July 27, 1990, and defendant, without objection, entered not guilty pleas at
 his arraignment that day.  On December 6, 1991, we issued State v. Jones,

 

 157 Vt. 553, 601 A.2d 502 (1991), and, relying on that decision, defendant
 filed a motion to dismiss on February 25, 1992.  The motion was denied.
      The facts in Jones are almost identical to those in this case, except
 in Jones the defendant immediately objected to the State's request for
 dismissal of the charge "without prejudice" to a future prosecution.  The
 Jones court agreed with defendant and dismissed the charge with prejudice as
 serving "'the ends of justice and the effective administration of the
 court's business.'"  Id. at 555, 601 A.2d  at 503 (quoting V.R.Cr.P.
 48(b)(2)).
      Here, defendant did not contest either the State's use of nol pros to
 obtain a delay or its reinstatement of the proceedings against him until our
 decision in Jones offered him a theory to avoid prosecution altogether.
 Yet, in Jones we stated:
           [T]he sanction of dismissal with prejudice should be
           used only "sparingly," and ordinarily should follow a
           forewarning.  The forewarning requirement has been
           applied in cases where the prosecution does not go
           forward and present its case after it has been denied a
           continuance.  It ensures that the prosecution is able to
           choose between going to trial and taking the sanction of
           dismissal with prejudice.

 157 Vt. at 559-60, 601 A.2d  at 505 (citations omitted).
      At the time the State nol prossed this case, the State, absent speedy-
 trial and double-jeopardy considerations, could continue a case with a nol
 pros.  See Reporter's Notes to V.R.Cr.P. 48(a) ("State [has] an absolute
 right to nol pros prior to trial"); State v. Forbes, 147 Vt. 612, 616, 523 A.2d 1232, 1235 (1987) ("nolle prosequi . . . does not . . . prevent further
 prosecution").  Jones limited this practice by holding that, when the State
 goes too far and abuses its dismissal prerogative, it may have to forego
 prosecution altogether.

 

      The record here does not reflect whether the State abused its nol pros
 power, but it does establish that the State was not forewarned that it must
 either meet the trial schedule or risk dismissal of the charges with preju-
 dice.  Furthermore, the most significant portion of the three-year delay
 between the accident and the jury trial resulted from multiple continuances
 granted to defendant, and, in one instance, from his own failure to appear.
 In short, defendant's objection came too late, he has not shown overreaching
 by the State, and he himself was responsible for any inordinate delay.
                                     II.
      The prosecutor, in his final argument to the jury, commented on the
 hitchhiker story defendant told the police:
             Now, ladies and gentlemen, isn't it your common
           experience that someone who is telling a story will tell
           it with a lot of detail?  But what was the story Mr.
           Seagroves told?  "Some fellow picked me up, the car
           smashed up, and then he pulled me out."

             Mr. Seagroves ever mention Darren Ransome?  Does Mr.
           Seagroves even get that information through his attorney
           over these three years to [the police]?

      One obvious inference of the State's argument to the jury was that
 defendant's statement to police that he was merely a hitchhiker should not
 be believed because, if he had been innocent, he would have been more
 detailed in relating the story.  Defendant contends that the prosecutor's
 argument additionally insinuated that defendant did not take the stand
 because he must have been guilty.
      We recognize that the State may not comment at trial that defendant
 exercised his Fifth Amendment right to remain silent.  State v. Mosher, 143
 Vt. 197, 204-07, 465 A.2d 261, 265-67 (1983).  The Fifth Amendment claim,
 however, has no merit here.  Defendant did not remain silent.  Rather he

 

 gave the police an account of his involvement in the accident and defended
 it at trial by calling a friend as a witness to verify the hitchhiking
 story.  Defendant's logic fails because the same argument could have been
 made to the jury whether he took the stand or not.  Even if defendant had
 testified and given "credible" detail, the State still could have attacked
 defendant's truthfulness because the story he told police before trial was
 not credible.
      Also, to the extent that the State's closing argument suggested that
 defendant had a duty to come forward with his witness before trial, it was
 not error.  Defendant did have a duty to disclose the witness under
 V.R.Cr.P. 16.1(c) (upon request, names and addresses of defense witnesses
 shall be disclosed to prosecution) but failed to do so.  It was within the
 court's discretion to allow Ransome to testify, but an inference is nonethe-
 less justified that revealing an undisclosed witness at trial was done to
 catch the State by surprise.  See State v. Meyers, 153 Vt. 219, 224, 569 A.2d 1081, 1085 (1989) (trial court has discretion to exclude testimony for
 violation of V.R.Cr.P. 16.1(c)); State v. Lombard, 146 Vt. 411, 416, 505 A.2d 1182, 1185 (1985) (prosecution's failure to disclose witness under
 V.R.Cr.P. 16 "'must be coupled with established prejudice to produce
 error'") (quoting State v. Evans, 134 Vt. 189, 192, 353 A.2d 363, 365
 (1976)).  Had the State known about the witness before trial, it may have
 discovered inaccuracies in the witness's story.  Meyers, 153 Vt. at 224, 569 A.2d  at 1085 (purpose of disclosing witnesses, which is to assist state in
 trial preparation, undermined when disclosure occurs hours before trial).
      Defendant's final claim is that the court improperly defined the intent
 element of larceny in a manner that allowed the jury to look at defendant's

 

 actions in wrecking the car to establish his intent to deprive Handy of it.
 This claim need not be addressed in detail because it simply misrepresents
 the court's charge.  The court correctly stated defendant's intent was
 "measured at the same point of time as the taking" of the car and
 additionally that "the State must show that the defendant intended at the
 time of the taking to permanently separate the owner . . . from his
 property." (Emphasis added.)  See State v. Hanson, 141 Vt. 228, 232-33, 446 A.2d 372, 374 (1982) (larceny requires "intent to steal at the very moment
 the property in question is taken into possession by the defendant").  The
 charge was not error.
      Affirmed.


                                    FOR THE COURT:


                                    ______________________________
                                    Associate Justice