State v. Tatro

STATE_V_TATRO.92-443; 161 Vt. 182; 635 A.2d 1204

[Filed 29-Nov-1993]

 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. 92-443


 State of Vermont                             Supreme Court

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

 Joshua A. Tatro                              October Term, 1993


 David A. Jenkins, J.

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

 E.M. Allen, Defender General, and Henry Hinton, Appellate Attorney,
   Montpelier, for defendant-appellant


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


      ALLEN, C.J.   Defendant was convicted after a jury trial of driving
 under the influence of alcohol in violation of 23 V.S.A. { 1201.  The
 conviction was his sixth offense, and the court sentenced him pursuant to 23
 V.S.A. { 1210(d).  We affirm.
      Central to the appeal is the testimony of Victor Sears, who was one of
 the first persons to arrive at the scene of the accident, which occurred
 within a few hundred yards of Sears' father's residence.  Sears observed
 that two persons were seated in the right front passenger seat, one on top
 of the other.  He testified that the person on top, later identified as
 defendant, had his feet over the center console and placed in the area of

 

 the accelerator on the driver's side of the vehicle.  The person underneath
 defendant had his torso and feet placed "as you would expect any passenger
 to be."  Sears said that he believed that the person under defendant might
 not be breathing and that he saw a "starred" or cracked windshield.  Sears
 then asked defendant to identify who was driving the vehicle.  His purpose
 in asking the question was to determine if the person under the defendant
 had hit the windshield, to assess the importance of immobilizing his spine.
 He added that at the time he asked defendant the question, he intended to
 treat only the other person.  At the time, Sears' medical training consisted
 of a basic CPR course, taken in connection with military service, and
 current enrollment in a "first-responder" training program.  He stated that
 his actions in assisting at the accident scene were those of a citizen; he
 was not acting as a member of any rescue squad or fire department.
      Before trial, defendant moved to exclude Sears' testimony as privileged
 communication between doctor and patient under V.R.E. 503 and 12 V.S.A. {
 1612.  He argued that Sears had referred to the accident victims as
 "patients" during discovery and that his true purpose in questioning
 defendant at the scene was to determine the medical condition of the car's
 occupants.
      The court denied the motion, explaining that defendant's statement to
 Sears as to who was driving was not a communication "made for the purpose
 of diagnosis or treatment of his physical, mental, dental, or emotional
 condition," within the meaning of V.R.E. 503(b).  When defendant objected at
 trial to Sears' testimony about defendant's statements at the scene, the
 court ruled "that the witness is not within the privilege -- merely because

 

 he is an exceptional citizen and has undertaken CPR training, and was acting
 as a rescuer."
      After the jury found defendant guilty of driving under the influence,
 the State was permitted to introduce certified copies of court records,
 indicating that a person with defendant's name and same date of birth
 previously had been convicted of DUI five times.  The two oldest
 convictions, in 1956 and 1977, simply contained a record of the conviction,
 but two convictions in 1980 and one in 1987 each contained a judge's
 certification that the pleas of guilty/nolo contendere were knowing and
 voluntary.  After further deliberations, the jury found that defendant had
 been previously convicted of driving under the influence on five occasions.
 The present appeal followed.
      Defendant has the burden of proving that the physician-patient
 privilege existed between witness Sears and himself and that the
 communication sought to be protected was privileged.  See State v. Sweet,
 142 Vt. 238, 239, 453 A.2d 1131, 1132 (1982).  In Sweet, a defendant
 convicted of DUI sought to exclude his comment to a nurse at the hospital
 that he was too drunk to sign a consent-to-treatment form.  Id.  This Court
 affirmed the denial of a privilege because the information was not necessary
 for treatment and because the nurse was not acting in her professional
 capacity, but rather performing only clerical duties.  Id. at 240, 453 A.2d 
 at 1133.
      In the present case, defendant failed to make the threshold showing
 that Sears was a physician, dentist, nurse, or mental health professional
 within the meaning of V.R.E. 503(a).  Sears' medical training by itself did
 not mean that his conduct when he arrived at the accident scene was that of

 

 a physician or nurse.  There is also no evidence that Sears' use of medical
 terminology convinced defendant that he was acting in a medical capacity.
 The evidence was overwhelming that he was acting simply as a rescuer.
      Even if Sears had been shown to have been qualified as a medical
 professional within the meaning of Rule 503, defendant failed to establish
 that the communication sought to be protected was privileged. Sears
 testified that he wanted to know who was driving the car so that he could
 assess the damage to the unconscious passenger, and that he did not intend
 to treat defendant.  Defendant did not testify on this point and presented
 no evidence that he intended this communication to be confidential.  The
 Court's ruling on privilege was without error.
      Defendant next argues that the court erred in finding that three prior
 convictions were valid, raising the offense charged to a felony.  First, he
 asserts that at his change of plea hearing in 1987 the judge indicated that
 his conviction would be treated as a first offense.  However, he introduced
 no evidence in support of this claim.  The State presented credible evidence
 disputing defendant's claims on the 1987 conviction, indicating that he was
 represented by the public defender and that the plea agreement recommended a
 sentence of ten-to-twelve months suspended, except for thirty days to serve,
 with no fine.  Nothing in the record supports defendant's claim that the
 court treated the 1987 conviction as a first offense.  On cross-examination,
 he admitted that he had signed a plea agreement form, but could not recall
 if he was represented by an attorney.  Defendant could not recall the name
 of the judge and disputed that he was placed on probation.  In sum,
 defendant's testimony is insufficient to suggest existence of any defect.
 See State v. Lambert, 146 Vt. 142, 145, 499 A.2d 761, 764 (1985) ("The

 

 State's ultimate affirmative duty to establish the validity of plea does not
 excuse defendant's insufficient effort to come forward on his claim.").
      Defendant next claims that the State failed to establish the validity
 of the pleas in the three prior convictions from 1980 and 1987.  At the
 hearing on the validity of the prior convictions, the State presented
 certified copies of the docket and disposition reports of the three
 convictions, which were accepted by the court.  In all three cases, the
 presiding judges had certified that:
           Defendant's entry of plea of Guilty/Nolo Contendere is
           found by this court to be voluntary and made with
           knowledge and understanding of the consequences and
           after knowing waiver of constitutional rights.  Plea has
           a factual basis.  Said plea is hereby accepted and
           adjudication of guilty is entered hereon.

 Defendant fails to meet his burden of demonstrating why this Court should
 find any of these convictions infirm, a burden imposed once the State
 establishes the convictions and the voluntariness of the waivers.  Id.
 Section 1210(d) provides an enhanced sentence for recidivism; it does not
 create a separate offense.  In this context, no presumption arises that the
 earlier convictions are invalid if they were never challenged on direct
 appeal as having been obtained through uninformed guilty pleas.  Parke v.
 Raley, 113 S. Ct. 517, 523-24 (1992).  Since defendant offered no evidence
 to refute that provided by the state, the prior convictions were validly
 factored into the determination of defendant's enhanced sentence.
      Defendant's final claim is that the court should not have considered
 the 1980 conviction, as the record indicated that he waived his right to an
 attorney.  Defendant did not raise this issue before the trial court, and we
 will not consider it for the first time on appeal.  State v. Hoadley, 147
 Vt. 49, 52, 512 A.2d 879, 881 (1986).

 

      Affirmed.
                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice