State v. Richardson

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 90-240

                             NOVEMBER TERM, 1991


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of  Vermont,
                                   }          Unit No. 2, Chittenden Circuit
                                   }
 Ray G. Richardson                 }
                                   }          DOCKET NO. 2711-7-88CnCr


              In the above entitled cause the Clerk will enter:

      Defendant appeals his conviction for first-degree murder, asserting (1)
 that the trial court should have not have allowed a rifle into evidence
 because it was seized in violation of the Fourth Amendment to the United
 States Constitution and Chapter I, Article 11 of the Vermont Constitution,
 and (2) it was plain error for the trial court to permit expert testimony on
 the manner of the victim's death.  We affirm.

      Driving alone with a suspended license and after he had been drinking,
 defendant pulled into a driveway late at night.  A police officer, who had
 noticed that one of defendant's headlights was out, followed and turned on
 his blue lights.  Defendant got out of the car and shut the door, and then
 reentered the car to turn on the lights so that he and the officer could
 inspect them.  When he got out of the car again, he left the door open,
 allowing the officer to see a rifle protruding from under the driver's seat.
 The officer smelled alcohol and asked defendant to perform a dexterity test,
 which he failed.  The officer arrested defendant for driving under the
 influence and driving with a suspended license.  A pat-down search of
 defendant revealed a pipe and a bag of marijuana, and defendant was hand-
 cuffed and placed in the cruiser of another officer who had arrived at the
 scene.  Without obtaining a warrant, the officers seized the rifle and
 briefly searched the car, which they then had towed away.  They learned
 later that defendant was a murder suspect in the death of a friend, whose
 body was discovered subsequent to the arrest.

      In Cady v. Dombrowski, 413 U.S. 433 (1973), the United States Supreme
 Court upheld the admission of a handgun seized without a warrant from a
 vehicle the defendant had crashed while drunk.  The seizure was made pur-
 suant to standard police procedure more than two hours after the car had
 been towed away.  The Court found the seizure justified by "concern for the
 safety of the general public who might be endangered if an intruder removed
 [the] revolver."  Id. at 447.  Although the police here had no established
 departmental procedures to guide them, we find no violation of the Fourth
 Amendment.  The officers acted with obvious prudence in seizing the rifle,
 which was clearly visible when the car door was open, before having the car
 towed away.  See United States v. Feldman, 788 F.2d 544, 552 (9th Cir. 1986)
 ("[S]wift and effective action by an officer to secure a gun which he or she
 reasonably believes to be in an empty impounded car should be recognized as
 'standard police procedure.'"), cert. denied, 479 U.S. 1967 (1987).

      Article 11 offers free-standing protection from unreasonable searches
 and seizures in Vermont. See State v. Savva, No. 90-035, slip op. at 10 (Vt.
 Oct. 25, 1991); State v. Berard, 154 Vt. 306, 309, 576 A.2d 118, 120 (1990).
 In interpreting Article 11, we have adopted the test suggested by Justice
 Blackmun in his concurring opinion in New Jersey v. T.L.O., 469 U.S. 325,
 351 (1985), and will abandon the warrant and probable-cause requirement
 "[o]nly in those exceptional circumstances in which special needs, beyond
 the normal need for law enforcement, make the warrant and probable-cause
 requirement impracticable."  Berard, 154 Vt. at 310-11, 576 A.2d  at 120-21.
 Under the facts of this case, we agree with the rationale of Dombrowski, at
 least when a firearm is exposed to plain view.  Left unattended, a rifle
 poses an unacceptable danger to the public at large.  Thus, we conclude that
 the circumstances confronting the police presented an exceptional circum-
 stance that allowed them to make a reasonable seizure without requiring the
 prior approval of the judiciary.  See id. at 312, 576 A.2d  at 121 (upholding
 random, warrantless search of prison cell); State v. Platt, 154 Vt. 179,
 189, 574 A.2d 789, 794-95 (1990) (immediate warrantless seizure of suspect's
 car was "safer for defendant, police, and potential bystanders").

      Defendant next argues it was plain error for the court to allow the
 medical examiner to give expert testimony that the victim died by homicide,
 not suicide.  He asserts that this testimony offered more of a legal than
 medical conclusion, and impermissibly intruded upon the role of the jury.
 See Reporter's Notes to V.R.E. 704 ("trial court is free to exclude testi-
 mony that gratuitously tells jury what conclusion to reach").  We disagree.
 The testimony was not a comment on defendant's guilt or innocence.  If the
 jury believed that a crime had been committed, it still had to decide the
 ultimate question of whether defendant was at all involved in the homicide.
 In this respect, the case differs from State v. Pinero, 778 P.2d 704 (Haw.
 1989), a case relied upon by defendant, where the identity of the person who
 fired the shot was known, and the issue was whether the shot was accidental.
 In Pinero, testimony that the death was a homicide went directly to the
 issue of guilt or innocence, and the court concluded that it "told the jury
 what result to reach."  Id. at 712.  Other jurisdictions, however, have
 allowed opinion testimony on the manner of death even where the identity of
 the assailant was not contested.  See, e.g., State v. Washington, 581 A.2d 1031, 1033 (R.I. 1990) (judge admitting testimony that death was homicide
 had discretion to decide whether it would aid the jury); Fridovich v. State,
 489 So. 2d 143, 145 (Fla. Dist. Ct. App. 1986) (finding error in exclusion
 of medical examiner's testimony on possibility that accident caused fatal
 gunshot wound, court wrote, "[s]uch opinions may support a conclusion that a
 defendant is not guilty, but the opinions themselves are directed to expert
 inferences to be drawn from a set of facts, not personal opinions of guilt
 or innocence"); Commonwealth v. Daniels, 480 Pa. 340, 353, 390 A.2d 172,
 178-79 (1978) (testimony that death was homicide did not remove from jury
 question of accused's criminal responsibility).

      In the instant case, the jury was free to reject the contested
 testimony, and was so instructed.  The admission of the evidence was neither
 error nor plain error.

      Affirmed.





                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice


                                    Ernest W. Gibson III, Associate Justice


 [x]  Publish                       John A. Dooley, Associate Justice

 [ ]  Do Not Publish
                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice