State v. Aiken
Annotate this Case
State v. Aiken (2003-126); 177 Vt. 566; 862 A.2d 285
2004 VT 96
[Filed 23-Sep-2004]
ENTRY ORDER
2004 VT 96
SUPREME COURT DOCKET NO. 2003-126
JUNE TERM, 2004
State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 3, Franklin Circuit
}
Alvin Aiken }
} DOCKET NO. 1489-9-02 FrCr
Trial Judge: Michael S.
Kupersmith
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant Alvin Aiken appeals his conviction for grossly
negligent operation of a motor vehicle. Defendant claims that the trial
court erred by advising the jury, in response to a jury question during
deliberations, that the gross negligence charge did not refer to the
specific conduct described in the information, but rather to defendant's
conduct generally while operating his vehicle on the day in question. We
reverse and remand.
¶ 2. Defendant's conviction arose from his encounter with state
game wardens George Scribner and Robert Lutz. During the evening of
August 29, 2002, the game wardens responded to a complaint that someone was
spotting deer in a field. The complaint mentioned a reddish colored pickup
truck with two people in it. As the wardens proceeded to the reported
site, a red pickup driven by defendant passed their vehicle going in the
opposite direction. Warden Lutz turned his vehicle around and followed the
pickup. He turned on the vehicle's blue lights and briefly activated the
siren. The pickup accelerated, and the wardens continued the pursuit on
dirt roads, at speeds of up to sixty-five miles per hour. Warden Scribner
repeatedly instructed defendant to stop through the truck's public address
system, but defendant continued on, his pickup fish-tailing, and the back
end of the vehicle bouncing completely off the ground as it sped down the
dirt road. When the pickup spun around and headed towards the wardens'
vehicle, warden Lutz tried to force defendant off the road by hitting the
back end of the truck. The pickup went into a ditch, but defendant was
able to drive out of it. After a further chase, warden Lutz backed off
from active pursuit, but continued following the vehicle's tracks on the
wet dirt.
¶ 3. Eventually, the wardens followed defendant to a narrow dead
end road, the Jones Road. Defendant's vehicle had turned around and was
slowly approaching the wardens' vehicle. Warden Lutz placed his vehicle in
a manner that he hoped would block the pickup's way. Nevertheless, as the
wardens were getting out of their truck, defendant accelerated and passed
the wardens' vehicle on the driver's side. According to warden Lutz, the
pickup passed within inches of him, forcing him to run to get out of the
path of the vehicle. Warden Lutz then fired a shot at the right rear tire
of the truck.
¶ 4. Using the pickup's plate number, the wardens located
defendant at his home. Defendant admitted that he was the driver of the
truck and was arrested. Defendant was charged with grossly negligent
operation, reckless endangerment, and failure to stop for a game warden.
The information on count I, the grossly negligent operation charge, alleged
that defendant "operate[d] a motor vehicle . . . in a grossly negligent
manner, to wit, drove his truck within inches of Warden Lutz, in violation
of 23 V.S.A. § 1091(b)." Similarly, count II alleged that defendant
"recklessly engaged in conduct which may place another in danger of serious
bodily injury, to wit, accelerated his truck toward Warden Lutz and nearly
hit him, in violation of 13 V.S.A. § 1025." The information on count III,
failure to stop for a warden, merely cited the pertinent statute, 10 V.S.A.
§ 4521(a), without setting forth any specific conduct.
¶ 5. At trial, defendant testified that he initially did not stop
for the warden because he was free under conditions of release and had no
driver's license. Defendant further stated that when he saw the wardens'
truck approaching his pickup on Jones Road, he sped up and passed it
because he was afraid that warden Lutz would hit his pickup as he had done
earlier in the chase. Defendant asserted that when he drove past the
warden's truck on Jones Road warden Lutz was still in the driver's seat and
the truck was still moving. Jennifer Cole, who was a passenger in the
pickup during the chase, also testified that warden Lutz was still in his
vehicle when defendant drove by the wardens' truck. Warden Scribner
testified that he did not see how close the pickup came to warden Lutz or
where Lutz was when defendant passed the truck.
¶ 6. In their closing arguments, both parties focused on the
moment when defendant drove past the wardens' truck on Jones Road. The
prosecutor asked the jury to consider the nature of the action that
defendant was charged with -"driving at the driver's side of the warden's
vehicle at the warden after warden Lutz had gotten out." Defendant
conceded his guilt on the charge of failure to stop for a game warden, but
disputed that he had put the warden at risk. Citing testimony that
questioned whether warden Lutz was outside the truck when defendant passed
him on Jones Road, defense counsel asked the jury: "Was [the warden]
outside of the truck? Was he inside the vehicle when it was coming? How
close was he to it [?] Did [defendant] see him there?" Defense counsel
stated that the focus "has to be right there on the two vehicles."
Moreover, defense counsel emphasized to the jury that the alleged gross
negligence was that defendant drove at warden Lutz, and therefore "[y]ou
[the jury] have to find that he perceived a risk to warden Lutz and ignored
that risk."
¶ 7. The trial court instructed the jury as follows on the charge
of grossly negligent operation: "[T]he State's Attorney alleges that
[defendant] . . . operate[d] a motor vehicle on a public highway, to wit,
Jones Road, in a grossly negligent manner, to wit, drove his truck within
inches of warden Lutz." Nevertheless, during its deliberations, the jury
sent out the following written question: "Count I. 'in a grossly negligent
manner' Does this refer specifically to the activities on Jones Rd. (To
wit: driving within inches of Officer Lutz)?" In response to the trial
court's request for comment, defense counsel stated, "the information was
specific . . . and that was the thrust of the State's case." The
prosecutor agreed, commenting, "the to wit gives the notice to the
defendant what actions we are alleging violate the statute, so I think I
would have to say that the answer to the jurors' question is yes." Despite
the parties' agreement, the trial court stated that "the jury need not
confine itself to the language specifically in the information."
Accordingly, the court answered the jury question in the negative, advising
the jury that the grossly negligent count referred to defendant's conduct
generally in operating his vehicle.
¶ 8. Shortly after the court answered the question, the jury
returned a guilty verdict on the charge of grossly negligent operation and
a not guilty verdict on the reckless endangerment charge. The jury also
found defendant guilty of failing to stop for a warden, a charge not
contested by defendant. Defendant moved for a new trial, citing as error
the court's answer to the jurors' inquiry. The trial court denied the
motion, relying on an unpublished memorandum decision of a three-justice
panel of this Court holding that descriptive language added to an
information does not necessarily add an essential element to the offense
charged. See State v. Belisle, No. 99-080 (Nov. 24, 1999). In its written
decision and order, the trial court rejected defendant's argument that it
effectively permitted an amendment of the information. According to the
trial court, "[t]he real question raised by the Defendant is whether the
information gave him notice that evidence of the entirety of his operation
of his vehicle during the pursuit . . . could be considered by the jury."
The trial court reasoned that the information, read in connection with the
affidavit of probable cause, fully advised defendant of the charged
conduct. The trial court further stated that defendant did not complain
that he was surprised by the State's evidence because "[i]f nothing else he
was required to deal with evidence of the chase in connection with [the
attempt to elude the warden charge]." This appeal followed.
¶ 9. On motion of a defendant, the court may grant a new trial if
required "in the interests of justice." V.R.Cr.P. 33; State v. Turner, 2003
VT 73, ¶ 11, 175 Vt. 595, 803 A.2d 122. "The standard is intentionally
broad so that the courts can ensure that trials are fair without
necessarily having to pigeonhole the grounds into narrow and specific
findings of error." State v. Heath, 162 Vt. 618, 619, 649 A.2d 243, 244
(1994) (mem.). The court may grant a new trial if it believes that the
cumulative effect of numerous concerns, no one of which can be
characterized as reversible error, amounted to a miscarriage of justice.
Id., 649 A.2d at 244. Although the decision to grant the motion is
"normally entrusted to the discretion of the trial court," State v. McKeen,
165 Vt. 469, 472, 685 A.2d 1090, 1092 (1996) (citing State v. Jewell, 150
Vt. 281, 284, 552 A.2d 790, 792 (1988)), this Court will reverse upon a
showing that the trial court abused or withheld its discretion, or
exercised it on untenable grounds. See State v. Briggs, 152 Vt. 531, 542,
568 A.2d 779, 785 (1989).
¶ 10. The function of the information is to "set forth charges with
such particularity as will reasonably indicate the exact offense the
accused is charged with, and will enable him to make intelligent
preparation for his defense." State v. Christman, 135 Vt. 59, 60, 370 A.2d 624, 625 (1977) (citations omitted). We agree with the trial court that,
"[t]o the extent that there is ambiguity in the information, reference may
be had to the affidavit of probable cause." Thus, ordinarily, we would not
allow a defendant to claim surprise or inability to prepare an adequate
defense merely because the information is missing details that can be
ascertained easily by reading the accompanying affidavit. See id. at 62,
370 A.2d at 626 (affirming denial of motion for new trial where alleged
amendment provided only additional details as to location of defendant's
conduct); State v. Burclaff, 138 Vt. 461, 465, 418 A.2d 38, 41 (1980)
(affirming denial of motion for new trial where alleged amendment resulted
from correction of minor typographical error in original charging
document).
¶ 11. Moreover, we recognize that grossly negligent operation can
involve a continuous course of conduct encompassing numerous individual
acts, and that a prosecutor is not required to set forth in the information
every nuance of defendant's conduct described in the affidavit of probable
cause. Here, however, the information narrowed and specified the conduct
for which defendant was being charged. Thus, this case is not a situation
where the information was vague or ambiguous and the accompanying affidavit
provided the specifics of the conduct underlying the charge. Rather, here,
the State's information and its actions at trial led defendant to believe
that the underlying conduct forming the bases of both the grossly negligent
operation charge and the reckless endangerment charge was defendant driving
his truck at warden Lutz on Jones Road. The State was not required to
confine itself in this way, but that is what it chose to do. Further, the
fact that the accompanying affidavit described separate conduct for which
defendant could have been charged with grossly negligent operation-driving
on dirt roads at speeds so high that he had trouble controlling his
truck-did not put defendant on notice that the grossly negligent charge was
based on that conduct, given the narrow conduct cited in the information.
Defendant could have reasonably assumed that the additional conduct cited
in the affidavit concerning his attempts to elude the wardens was directed
at the third charge of failing to stop for a warden.
¶ 12. In addition to the grossly negligent operation charge,
defendant faced a reckless endangerment count alleging that he accelerated
his vehicle towards the warden and nearly hit him. The similarity between
the specific conduct alleged in these two charges suggests that the State's
strategy prior to trial was to focus the case on defendant's act of driving
by or at warden Lutz, seeking at a minimum to secure a conviction for
grossly negligent operation in the event the jury could not be persuaded
that defendant acted with the requisite mens rea for reckless endangerment.
In fact, it is clear from the record that, prior to the trial court's
intervention, both parties assumed that the "to wit" wording resolved any
possible uncertainty regarding the specific conduct underlying those
charges. At trial, in response to the court's question concerning the
jury's note, the prosecutor acknowledged that the specific conduct
described in the information charging defendant with grossly negligent
operation was that he drove "within inches of Warden Lutz." In light of
the State's apparent understanding of the wording of the information, and
given the context in which the charges were brought, we do not believe that
defendant could have reasonably anticipated that the grossly negligent
operation charge involved conduct other than the specific allegation
contained in the information.
¶ 13. The three-justice-panel decision relied upon by the trial
court in concluding that the grossly negligent operation charge was not
limited to the conduct contained in the information is not controlling
precedent and, in any event, is distinguishable from the instant case.
There, the information charged the defendant with grossly negligent
operation, "to wit, travelling at excessive speed while racing with another
vehicle." See Belisle, No. 99-080, at 2. The defendant argued that the
trial court erred by failing to instruct the jury that the prosecution had
to prove, as an essential element of the crime, that he had the intent to
race. We held that the phrase "while racing with another vehicle" was
merely descriptive of the defendant's conduct and did not add an essential
element to the charged offense. Id. By contrast, as the prosecutor in
this case acknowledged at trial, the phrase "drove within inches of Warden
Lutz" was not meant to be merely a descriptive phrase, but rather was
intended to specify the underlying conduct that formed the basis of the
charge. In short, given the specific language of the information in this
case, the trial court erred by telling the jury that the charge of grossly
negligent operation referred to conduct other than that cited in the
information.
¶ 14. Further, defendant's ability to prepare and present his
defense was substantially prejudiced by the court's ruling. Because of the
"to wit" wording, defense counsel focused on the specific facts alleged in
the information, vigorously contesting the claim that defendant had driven
dangerously close to warden Lutz. Defendant's theory of the case was that
the warden was still in his vehicle when defendant passed by. By
suggesting to the jurors that they could consider other conduct in
evaluating the grossly negligent operation charge, the trial court
effectively negated defendant's and other witnesses' testimony regarding
the events at Jones Road-an important part of defense counsel's strategy.
In responding to the jurors' inquiry, the trial court should have
considered the context in which the charges were brought, and the fact that
both parties, by the State's own admission, had tried the case with the
understanding that the specific conduct that constituted the offense was
that defendant drove dangerously close to the warden. Furthermore, unlike
the situation where an information is amended during trial, here the
reinterpretation of the information came at the end of the trial, thereby
leaving defendant without an opportunity to adapt his defense to the new
charge. Defendant's ability to prepare and present his defense was so
substantially prejudiced that a new trial is required "in the interests of
justice." V.R.Cr.P. 33. Although the trial court has discretion in
determining whether a new trial is warranted, Jewell, 150 Vt. at 284, 552 A.2d at 792, the court's denial of defendant's motion under the
circumstances of this case amounted to an abuse of discretion.
Defendant's conviction for grossly negligent operation of a motor
vehicle is reversed, and the case is remanded to the trial court for a new
trial on the grossly negligent operation count.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
