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.
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