State v. O'Neill

State v. O'Neill  (95-217 & 95-239); 165 Vt 270; 682 A.2d 943

[Opinion Filed 14-Jun-1996]

[Motion for Reargument in Docket No. 95-239 Denied 3-Jul-1996]


       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.


                             Nos. 95-217 & 95-239


State of Vermont                                  Supreme Court

                                                  On Appeal from
     v.                                           District Court of Vermont,
                                                  Unit No. 3, Washington Circuit

Michael O'Neill                                   March Term, 1996


State of Vermont

     v.

Timothy Trono


David Suntag, J.

       Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Oreste V. Valsangiacomo, Jr., of Valsangiacomo, Detora & McQuesten,
  P.C., Barre, for defendant-appellant O'Neill

       David C. Sleigh of Sleigh & Williams, St. Johnsbury, for
  defendant-appellant Trono


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


       MORSE, J.   These consolidated interlocutory appeals arise from the
  Washington District Court's denial of defendants' motions to dismiss
  charges of obstruction of justice under 13 V.S.A. § 3015 ("[w]hoever . . .
  corruptly . . . obstructs or impedes, or endeavors to obstruct or impede
  the due administration of justice" commits a crime).  Defendants, relying
  on the interpretation of a federal statute similar to Vermont's, claim that
  the existence of a pending judicial proceeding is an element of the crime. 
  The trial court ruled that a pending judicial proceeding is not a required
  element under Vermont's statute.  We affirm.

 


                                I.


       These appeals arise out of the same incident.  In early 1994, the
  Vermont State Police began an investigation of alleged misconduct by
  members of the Northfield Police Department. On Labor Day weekend of 1993,
  Officer Ken Falcone had allegedly fired his pistol into a store owned by
  William Oren, an outspoken critic of the Department. Officer Trono

       Defendant Timothy Trono, who knew that Falcone was responsible for the
  shooting, responded with Officer Donald McCormick to Oren's report of
  vandalism.  McCormick recovered two shell casings at the scene, which he
  gave to Trono.  Trono, in turn, submitted two shell casings to the Vermont
  State Police Crime Laboratory. He later told Officer Mark Heimall that he
  had substituted a different pair of casings for the ones found at the
  scene. Subsequently, laboratory personnel discovered that although a bullet
  jacket recovered from the scene matched a pistol taken from Falcone's home,
  the casings Trono submitted did not, indicating that they were not the ones
  retrieved from the scene.

       Trono was charged with obstruction of justice.  He filed a motion to
  dismiss the charge on the ground that the statute does not apply to conduct
  that takes place before a judicial proceeding is initiated.  The motion was
  denied.  Subsequently Trono pled guilty to obstruction of justice, but
  retained the right to appeal the denial of his motion to dismiss. Police
  Chief O'Neill

       During the course of the misconduct investigation, Officer Mark
  Heimall spoke with the Chief of the Northfield Police, defendant Michael
  O'Neill, while wearing an electronic listening device.  Heimall told
  O'Neill that he knew Falcone and Trono were involved in the shooting of
  Oren's Store and asked what he should say if questioned about it. O'Neill
  replied, "The way I would approach it at this point in time is I don't know
  anything about it."

       Heimall also spoke with Falcone.  Falcone told him: "[T]hey need the
  barrel [the casings at the scene] w[ere] fired from. . . . Mike [O'Neill]
  told me to dump, like go to Jersey and toss [my gun barrel] in some river
  somewhere on my way to Jersey."  Falcone also told the Vermont

 

  State Police that O'Neill, several times, had told him to get rid of his
  gun barrel.  O'Neill also supplied Trono with a gun, directing him to fire
  it, collect two casings, and substitute them for the ones recovered from
  Oren's store.  O'Neill was charged with three counts of obstruction of
  justice.  He moved for their dismissal on the same ground -- that no
  judicial proceedings were pending at the time the alleged offenses
  occurred.  The court denied the motion, and O'Neill filed an interlocutory
  appeal which was consolidated with Trono's appeal.

                                II.

       The sole issue on appeal is whether the existence of a pending
  judicial proceeding is an element of the crime of obstruction of justice. 
  The statute, 13 V.S.A. § 3015, reads as follows:

       Whoever corruptly, or by threats or force, or by any threatening
  letter or communication, intimidates or impedes any witness, grand or petit
  juror, or officer in or of any court of the state of Vermont, or causes
  bodily injury to such person or intentionally damages the property of such
  person on account of such person's attendance at, deliberation at, or
  performance of his or her official duties in connection with a matter
  already heard, presently being heard, or to be heard before any court of
  the state of Vermont, or corruptly or by threats or force or by any
  threatening letter or communication, obstructs or impedes, or endeavors to
  obstruct or impede the due administration of justice, shall be imprisoned
  not more than five years or fined not more than $5,000, or both.

  Defendants were charged, under the last or so-called "omnibus clause" of
  the provision, with corruptly endeavoring to obstruct or impede the due
  administration of justice.  The Vermont statute, which was adopted in 1977
  is based on a federal statute, 18 U.S.C. § 1503 (1976), which read as
  follows:

       Whoever corruptly, or by threats or force, or by any threatening
  letter or communication, endeavors to influence, intimidate, or impede any
  witness, in any court of the United States or before any United States or
  other committing magistrate, or any grand or petit juror, or officer in or
  of any court of the United States, or officer who may be serving at any
  examination or other proceeding before any United States magistrate or
  other committing magistrate, in the discharge of his duty, or injures any
  party or witness in his person or property on account of his attending or
  having attended such court or examination before such officer, magistrate,
  or other committing magistrate, or on account of his testifying or having
  testified to any matter pending therein, or injures any such grand or petit
  juror in his person or property on account of any verdict or indictment
  assented to by him, or on account of his being or having been such juror,
  or injures any such officer, magistrate, or other committing magistrate in
  his person or property on account of the performance of his official
  duties, or corruptly or by threats or force, or by any threatening letter
  or communication, influences, obstructs or impedes, or endeavors to
  influence, obstruct, or impede,
  
 

  the due administration of justice, shall be fined not more than $5,000 or
  imprisoned not more than five years or both.

  See also State v. McHugh, 161 Vt. 574, 576, 635 A.2d 1200, 1202 (1993)
  (mem.) (omnibus obstruction of justice provision in federal statute closely
  parallels Vermont's).  The federal statute was in turn derived from an
  earlier federal statute dating back to the nineteenth century:

       Every person who corruptly, or by threats or force, endeavors to
  influence, intimidate, or impede any witness, or officer in any court of
  the United States, in the discharge of his duty, or corruptly, or by
  threats or force, obstructs or impedes, or endeavors to obstruct or impede,
  the due administration of justice therein, shall be punished by a fine of
  not more than five hundred dollars, or by imprisonment not more than three
  months, or both.

  Revised Stat. § 5399 (1878) (repealed 1909) (codifying Act of March 2, 1831
  ("An Act declaratory of the law concerning contempts of court")).  In its
  original version the statute prohibited attempts to influence or intimidate
  witnesses and court officers "in any court of the United States. . . or to
  obstruct or impede the due administration of justice therein."  Id.
  (Emphasis added).

       In 1893 the United States Supreme Court interpreted § 5399 by holding
  that there could be no violation of it without:

  knowledge or notice or information of the pendency of proceedings in
  the United States court or the progress of the administration of justice
  therein
  . . . . 
  The obstruction of the due administration of justice in any
  court of the United States is . . . indeed made criminal, but such
  obstruction can only arise when justice is being administered.

  Pettibone v. United States, 148 U.S. 197, 205, 207 (1893) (emphasis added). 
  This interpretation was arguably reasonable in light of the express
  language of the statute, which referred only to the obstruction of the due
  administration of justice within the courts of the United States.

       In the face of numerous amendments to the federal statute, however,
  including the deletion from the omnibus clause of any reference to courts
  or court proceedings, see 18 U.S.C. § 1503 (1948) (word "therein" struck
  from omnibus clause; no direct reference to court or court proceedings
  remains in clause), a majority of federal courts have persisted in holding
  that a

 

  violation cannot occur absent a pending judicial proceeding.  See E. Devitt
  et al. 2 Federal Jury Practice and Instructions § 41.03, at 541-551 4th ed.
  (1990) (discussing cases); Annotation, Construction and Application of 18
  U.S.C.S. § 1503,  20 A.L.R. Fed. 731, 757-61 (1974) (same).

       Only one court, the United States District Court for the Western
  District of Pennsylvania, has directly addressed the question of whether
  the removal of the word "therein" was intended to broaden the scope of the
  omnibus clause so that it would apply before a judicial proceeding is
  initiated.  The court concluded, without analysis, that the phrase "due
  administration of justice" "is qualified and limited by the enumeration of
  specific judicial functions concerned with the `administration' of
  justice," and that an investigating body, as opposed to a judicial arm of
  government, does not administer justice within the meaning of the statute. 
  United States v. Scoratow, 137 F. Supp. 620, 621-22 (W.D. Pa. 1956).  The
  Scoratow court did not address why the word "therein" was included in the
  provision in the first place or why justice can be administered only in
  court proceedings.   Moreover, the court failed to explain why conduct that
  obstructs justice can occur only while a proceeding is pending;  common
  sense dictates that present conduct can obstruct the administration of
  justice in future proceedings.  See D. Oesterle, A Private Litigant's
  Remedies for an Opponent's Inappropriate Destruction of Relevant Documents, 
  61 Tex. L. Rev. 1185, 1194 n.29 (1983) (pending judicial proceeding
  requirement not obvious from language of § 1503 or any of its forerunners,
  but is derived from ill-advised general language of Pettibone).

       Defendants' entire argument is premised on one rule of statutory
  construction -- where Vermont adopts a statute from another jurisdiction,
  the presumption is that the Legislature also adopted the construction given
  the statute in its jurisdiction of origin.  Hartnett v. Union Mut. Fire
  Ins. Co., 153 Vt. 152, 154, 569 A.2d 486, 487 (1989).  They argue that we
  must adopt the construction given to the federal statute by the federal
  courts whether, in our view, the interpretation is sound or not.

       There are many rules of construction, however, the paramount one being
  to discern and give effect to the intent of the Legislature.  Swett v.
  Haig's Inc., __ Vt. __, __, 663 A.2d 930,

 

  932 (1995).  A competing rule, like the one defendants cite, cannot
  overcome the will of the Legislature.  Like all rules of construction, it
  is an aid to be relied upon where appropriate, but not where it leads to a
  result inconsistent with legislative intent.  See State v. Fuller, __ Vt.
  __, __, 660 A.2d 302, 305 (1995) (statutory construction technique not rule
  of law, but aid to be relied on where appropriate); State v. Papazoni, 159
  Vt. 578, 580 n.1, 622 A.2d 501, 503 n.1 (1993) (rules of statutory
  construction no more than aid in determining legislative intent).

       The first step in discerning legislative intent is to look at the
  language of the statute itself. We presume the Legislature intended the
  plain, ordinary meaning of the language.  Swett, __ Vt. at __, 663 A.2d  at
  932.   It is inappropriate to read into a statute something which is not
  there unless it is necessary in order to make the statute effective. 
  Fuller, __ Vt.  at __, 660 A.2d  at 305.  Here, the statute forbids
  "corrupt" conduct that has the tendency to "obstruct or impede the due
  administration of justice." 13 V.S.A. § 3015.   Defendants' conduct, which
  included advocating the making of  false statements and destroying material
  evidence, falls within this language.  The provision makes no reference to
  a "pending  proceeding" requirement, and such a requirement is not
  necessary  to reasonably limit the law to a proper scope.  On the contrary,
  as the instant case illustrates, such a requirement would make the statute
  wholly ineffective where judicial proceedings have not been initiated.  It
  would be counterintuitive for a legislator to divine that the express
  language did not cover what it purports to cover.  Under a plain meaning
  approach, there is no evidence that the legislature intended the provision
  to apply only where a judicial proceeding was pending.  See State v.
  Forcier, 162 Vt. 71, 75, 643 A.2d 1200, 1202 (1994) (where meaning of
  statute plain on its face, statute must be enforced according to express
  terms).
  
       Furthermore, the statute as adopted is not identical to its federal
  counterpart.  To begin with, the titles of the two provisions differ
  substantially.  The version of the federal provision in effect when the
  Vermont statue was adopted was titled:  "Influencing or injuring officer,
  juror, or witness generally." 18 U.S.C. § 1503 (1976) (amended 1982 &
  1994).  The Vermont statute, in contrast, is entitled "Obstruction of
  justice." This difference is evidence that the
  
 

  Vermont statute was intended to apply to a broader range of conduct than
  the federal statute. See Winey v. William E. Dailey, Inc., 161 Vt. 129,
  136, 636 A.2d 744, 749 (1993) (in construing statute we look to every part,
  and to reason and spirit of law).

       The Vermont statute also differs from the federal one in that it
  reaches conduct that obstructs the administration of justice in matters
  "already heard, presently being heard, or to be heard before any court of
  the state." 13 V.S.A. § 1305 (emphasis added).  The federal statute refers
  only to present and past proceedings, not to matters "to be heard." See 18
  U.S.C.A. § 1503 (West Supp. 1996) ("[w]hoever corruptly . . . injures any.
  . . juror . . . on account of . . . his being or having been such juror")
  (emphasis added).  This departure from the federal language further
  indicates that the Legislature intended the Vermont statute to apply more
  broadly than the federal statute.  See State v. Greenwald, 454 A.2d 827, 830 (Me. 1982) ("It can be assumed that changes made in a statute which was
  drawn from a similar statute in another jurisdiction must have been for the
  very purpose of avoiding the construction developed elsewhere."); Payea v.
  Howard Bank, __ Vt. __, __, 663 A.2d 937, 938 (1995) (when construing
  statute, we presume language inserted advisedly).

       Defendants claim that the above alteration in the main clause should
  not affect the interpretation of the omnibus clause, which remains
  identical to that in the federal provision. We disagree.  As written, the
  omnibus clause is the broader of the two.  See United States v. Brand, 775 F.2d 1460, 1464-65 (11th Cir. 1985) (§ 1503 has specific clause covering
  jurors and court officials, and omnibus clause "broad enough to cover any
  act committed corruptly, in an endeavor to impede or obstruct justice"). 
  It does not make sense for the main clause, which refers to jurors and
  court officers, to apply where no judicial proceeding is pending, while
  application of the omnibus clause is restricted to circumstances where a
  proceeding is pending.

       Finally, the Vermont statute differs substantially from the federal
  scheme.  Under the federal scheme, different types of criminal behavior are
  targeted specifically in different statutes, see, e.g., 18 U.S.C.A. § 1510
  (West Supp. 1996) (obstruction of criminal investigations); id. § 1512
  (tampering with a witness), whereas the Vermont scheme consists of one
  broadly written

 

  statutory section intended to cover all of the above.  Essentially,
  defendants assert that the Legislature intended the destruction of material
  evidence by police to be lawful unless a judicial proceeding is pending. 
  To accept defendants' argument, we would have to assume that by changing
  the language and title of the provision, the Legislature did not intend to
  create a broad obstruction of justice statute, but instead intended to
  decriminalize behavior that is illegal under the federal scheme.  See 18
  U.S.C. § 1510 (West Supp. 1996) (obstruction of criminal investigations). 
  We find this proposition implausible.  See Forcier, 162 Vt. at 75, 643 A.2d 
  at 1202 (interpretations should avoid unjust and unreasonable
  consequences).

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice