State v. Zumbo

Annotate this Case
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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-073


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Frank M. Zumbo                               Unit No. 2, Chittenden Circuit

                                             March Term, 1991


Michael S. Kupersmith, J.

William Sorrell, Chittenden County State's Attorney, Burlington, Gary S.
   Kessler, Supervising Appellate Prosecutor, Montpelier, and Geoffrey M.
   Coan, Student Intern, Vermont Law School (On the Brief), for plaintiff-
   appellee

Jane Watson and Robert W. Zeuner of Bauer, Gravel & Watson, Burlington, for
   defendant-appellant


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



     GIBSON, J.   Defendant Frank Zumbo appeals from his conviction for
operating a motor vehicle while under the influence of intoxicating liquor,
in violation of 23 V.S.A. { 1201(a)(2), arguing that (1) his constitutional
and statutory rights were violated by the jury selection process, (2) the
trial court abused its discretion when it denied his motion to suppress, (3)
the court erred in allowing a police officer to testify that in his opinion
defendant was under the influence of intoxicating liquor, (4) the court
erred in failing to instruct the jury on the permissive inference under 23
V.S.A. { 1204(a)(1), and (5) the court erred in using the Storrs jury
instruction.  We affirm.
                                   I.
     Defendant first contends that Chittenden County's jury selection
procedures violate his federal and Vermont constitutional rights, as well as
his statutory rights.  The instant case is one of forty-four previous inter-
locutory appeals presenting the same argument; forty-three cases, including
the instant case, were dismissed on grounds that the interlocutory appeals
had been improvidently granted.  See State v. Jenne, __ Vt. __, __, 591 A.2d 85, 88 (1991).  The other case -- was addressed on the merits, and
for the reasons expressed therein, we reject defendant's contention.  See
id. at __, 591 A.2d  at 88-91.
                                   II.
                                   A.
     Defendant next argues that State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985) and its progeny require the trial judge to reevaluate
the merits of a motion to suppress whenever a different judge had ruled on
the motion prior to trial.  Thus, in the instant case, defendant contends
that, although no new facts were adduced at trial, the trial judge committed
reversible error by failing to reconsider the motion to suppress, which had
been denied before trial by Judge Cashman following an evidentiary hearing.
As we stated in Senecal, pretrial rulings are tentative and subject to
revision, id., but Senecal and its progeny do not require the trial judge to
reevaluate all decisions made by a prior judge.  Where no new facts are
adduced at trial, it would be counterproductive and a waste of judicial
resources to require redetermination of a pretrial ruling by the trial
judge.  State v. Bruno, __ Vt. __, __ n.1, 595 A.2d 272, 274 n. 1 (1991)
(for reasons of judicial economy, "trial court reconsideration of pretrial
suppression rulings is to be the exception, not the rule").  We shall not
require a trial judge to reconsider a pretrial decision under such circum-
stances.  Accordingly, the trial judge did not abuse his discretion when he
declined to reconsider the pretrial decision.
                                    B.
     Defendant also contends that the motion to suppress was erroneously
denied by Judge Cashman.  In response to questions from a police officer,
defendant made a series of incriminating statements while he was in his
vehicle and during the administration of a field sobriety test.  He argues
that, pursuant to Chapter I, Article 10 of the Vermont Constitution,
Miranda warnings are required at all roadside stops or, at the latest, once
the police officer has probable cause to believe that the individual has
committed or is in the process of committing a crime.  He further contends
that the officer had probable cause -- and should have given him Miranda
warnings -- after the officer had noted his erratic driving, watery and
bloodshot eyes, slurred speech, and the odor of intoxicants.
     Under the federal constitution, the suppression court correctly
determined that defendant was not "in custody" at the time he made his
incriminating statements.  See Pennsylvania v. Bruder, 488 U.S. 9, 9-11
(1988); Berkemer v. McCarty, 468 U.S. 420, 437-39 (1984); State v. Lancto,
__ Vt. __, __, 582 A.2d 448, 448-50 (1990).  Although we have explicitly
adopted Miranda under Chapter I, Article 10, State v. Brunelle, 148 Vt. 347,
355 n.11, 534 A.2d 198, 204 n.11 (1987), we have not had occasion to address
whether the Vermont Constitution requires Miranda warnings in circumstances
where the federal constitution would not.  Cf. In re E.T.C., 141 Vt. 375,
378, 449 A.2d 937, 939 (1982) (stricter requirements under Vermont
Constitution for juvenile's waiver of Miranda rights).  Defendant bears the
burden of providing an explanation of how or why the Vermont Constitution
provides greater protection than the federal constitution.  State v.
Gleason, 154 Vt. 205, 212, 576 A.2d 1246, 1250 (1990); State v. Ryea, 153
Vt. 451, 454, 571 A.2d 674, 675 (1990).
     In support of his proposed rule, defendant strenuously contends that
one does not reasonably feel free to leave an ordinary traffic stop.  This
argument, however, was answered in Berkemer v. McCarty, 468 U.S. 420 (1984).
Justice Marshall rejected the argument on grounds that the ordinary traffic
stop is a temporary and brief detention that is exposed to public view and
thus less police-dominated than the kinds of interrogation at issue in
Miranda.  Id. at 437-39.  Defendant fails to provide a substantive analysis
as to why the Vermont Constitution should provide a different answer for his
argument than the federal constitution.  See State v. Jewett, 146 Vt. 221,
222, 500 A.2d 233, 234 (1985).  Nor are we convinced by defendant's lengthy
quotation from Commonwealth v. Bruder, 365 Pa. Super. 106, 111-12, 528 A.2d 1385, 1387-88 (1987), which was reversed by the United States Supreme Court
in Pennsylvania v. Bruder, 488 U.S. 9 (1988).  Although Commonwealth v.
Bruder refers to a "Pennsylvania rule," subsequent Pennsylvania cases
suggest that the "rule" is similar if not identical to the federal rule.
See, e.g., Commonwealth v. Gonzalez, 519 Pa. 116, 124, 546 A.2d 26, 29-30
(1988); Commonwealth v. Toanone, 381 Pa. Super. 336, 347, 553 A.2d 998,
1001-1003 (1989); Commonwealth v. Ellis, 379 Pa. Super. 337, 357-58, 549 A.2d 1323, 1329-34 (1988).  We note that defendant has made no argument
based upon the Vermont Constitution's text or its history.  On this record,
we are not persuaded that Chapter I, Article 10 of the Vermont Constitution
requires Miranda warnings at an ordinary traffic stop.
                                   III.
     Defendant argues that the trial court erred by allowing the police
officer to testify that, in his opinion, defendant was slightly to
moderately intoxicated, on grounds that the testimony goes to an ultimate
conclusion of law.  We have previously addressed this argument and have held
nearly identical testimony to be admissible where a sufficient foundation
was established.  See State v. LeBeau, 144 Vt. 315, 318, 476 A.2d 128, 130
(1984) (testimony that defendant was under the influence of intoxicants held
admissible); State v. Norton, 134 Vt. 100, 103, 353 A.2d 324, 325 (1976)
(same); see also Reporter's Notes, V.R.E. 704 (stating that Norton is
consistent with V.R.E. 704, and "testimony should not be excluded solely
because it coincided with an ultimate issue of fact where it was an
otherwise helpful expression of opinion").  Defendant's reliance on Riess
v. A.O. Smith Corp., 150 Vt. 527, 556 A.2d 68 (1988) is misplaced.  Contrary
to defendant's contention, Riess, which is grounded in part upon Norton, did
not change the rule enunciated in Norton and LeBeau.  Instead, Riess held
that the questions asked by counsel in that negligence action were improper
because they, in effect, told the jury "what conclusion to reach" and were
thus prejudicial, requiring reversal.  Id. at 532-33, 556 A.2d  at 72.  There
was no such flaw in this case, and no abuse on the part of the trial court
in allowing the evidence.
                                   IV.
     Defendant also argues that the trial court erred by failing to instruct
the jury that if defendant's blood-alcohol content was found to be 0.05% or
less, then the jury could presume that defendant was not under the influence
of intoxicating liquor.  During processing, defendant gave a breath sample
to the officer.  Defendant's expert testified that, if the testimony of
defendant's witnesses was accurate, defendant's blood-alcohol content would
have been less than 0.05%.  Neither party introduced and related back
defendant's test results.  For the following reasons, we hold that defendant
was not entitled to the requested instruction under { 1204(a)(1), as it then
read, (FN1) because the results of his blood-alcohol test were not introduced
into evidence and related back to the time of operation.
     First, the plain meaning of the statutory language required that the
test results be in evidence.  Title 23 V.S.A. { 1204(a)(1) provided:
            (a) Upon the trial of any civil or criminal action or
          proceeding arising out of acts alleged to have been
          committed by a person while operating, attempting to
          operate or in actual physical control of a vehicle on a
          highway, the amount of alcohol in the person's blood or
          breath as shown by analysis of the person's blood or
          breath shall give rise to the following permissive
          inferences:

            (1) If there was at that time 0.05 percent or less by
          weight of alcohol in the person's blood or breath, it
          shall be presumed that the person was not under the
          influence of intoxicating liquor.
(Emphasis added.)  In stating that an "analysis of the person's blood or
breath shall give rise" to certain inferences, the statutory language
plainly contemplated that a test of a blood or breath sample be evaluated,
and the result made known and introduced into evidence.  In State v.
Lombard, 146 Vt. 411, 413-14, 505 A.2d 1182, 1184 (1985), we held that a
defendant was not entitled to a mandatory presumption of sobriety, under an
earlier version of { 1204(a)(1), where neither party introduced or related
back the test results.  The plain language of the statute did not
contemplate a jury instruction pursuant to { 1204(a)(1) in the absence of a
test result that had been related back to the time of operation.
     Second, the requirement that defendant introduce and relate blood- or
breath-test results back to the time of operation, in order to take
advantage of { 1204(a)(1)'s permissive inference, is consistent with the
legislative desire to make scientific evidence available at trial.  See
State v. Begins, 148 Vt. 186, 188, 531 A.2d 595, 596 (1987) ("primary
purpose of the legislature, in authorizing breath and blood tests, was to
make available to law enforcement officers an alternative and more science-
related aid in detecting the extent of alcohol impairment"); McGarry v.
Costello, 128 Vt. 234, 240, 260 A.2d 402, 405 (1969) (purpose of implied
consent law is to encourage availability of scientific evidence "as a means
to affirm or reject the uncertain opinion of a layman derived from
observation of external symptoms of intoxication").  A defendant's option
under 23 V.S.A. { 1203(c) of obtaining an independent analysis of a sample
furthers this goal.  See State v. Robitaille, 151 A.2d 380, 382, 561 A.2d 412, 413 (1989) ("we view the independent analysis permitted the defendant
as a check on the integrity of the procedures of the police and Health
Department").  Restricting availability of the permissive inferences in {
1204 to those instances where the statutorily specified test results were
introduced into evidence is consistent with the legislative scheme designed
to promote the use of objective, scientific evidence.
     Finally, defendant's suggested construction of the phrase "as shown by
analysis of the person's blood or breath" would also, if adopted, be applic-
able to { 1204(a)(3).(FN2) See, e.g., Lombard, 146 Vt. at 413, 505 A.2d  at 1183
({ 1204(a)(3)'s requirement that expert testimony relate test results back
to the time of operation also "holds true" for { 1204(a)(1)).  Thus, if we
were to conclude that the testimony of an expert witness by itself, in the
absence of a test result, would suffice to generate an instruction under {
1204(a)(1), then the same principle should apply under { 1204(a)(3).  In
other words, the State should have the opportunity to present expert
testimony and obtain an instruction about intoxication under the (a)(3)
inference without having to introduce a test result, based, for example,
upon a police officer's observations or the defendant's admissions
regarding how much he had had to drink.  We cannot believe the Legislature
intended such a result.
     For all of these reasons, we conclude that before a presumption may
arise under { 1204(a)(1), the results of a breath or blood test must have
been introduced into evidence and related back to the time of operation.  In
the instant case, the testimony of defendant's expert was not based upon a
test or a scientific analysis of a blood or breath sample.  Accordingly, the
trial court correctly denied defendant's request for a { 1204(a)(1) jury
instruction.
                                    V.
     Defendant's final argument is that the trial court erred by allowing
the language of State v. Storrs, 105 Vt. 180, 163 A. 560 (1933) to be used
in the State's opening and closing arguments and by itself using Storrs'
language in the jury instructions. (FN3) Defendant contends that the 1969
amendment to 23 V.S.A. { 1201 implicitly overruled Storrs and that the
Storrs test is absurd and irrational under the current language of the
statute.
     In Storrs, we stated that
          where one, by reason of his indulgence in intoxicating
          liquor, has ceased to retain full control over his
          faculties of mind and body, he is under the influence of
          such liquor, and the extent to which he has lost the use
          of his mental and physical powers is not material upon
          this question.
105 Vt. at 185, 163 A.  at 563.  Since Storrs was decided and subsequent to
the 1969 amendment, this Court has repeatedly applied the Storrs test in
criminal proceedings for driving while under the influence.  See, e.g.,
State v. Abbott, 151 Vt. 618, 621, 563 A.2d 640, 642 (1989) (reiterating the
Storrs test and rejecting argument that evidence must show defendant lost
full control of physical and mental abilities); State v. Schmitt, 150 Vt.
503, 508, 554 A.2d 666, 669 (1988) (this Court has reaffirmed the use of
jury instructions containing the "slightest degree" language in case law
since 1933); State v. Stockwell, 142 Vt. 232, 235, 453 A.2d 1120, 1122
(1982); State v. Carmody, 140 Vt. 631, 637, 442 A.2d 1292, 1295 (1982);
State v. Wall, 137 Vt. 482, 487, 408 A.2d 632, 636 (1979), cert. denied, 444 U.S. 1060 (1980); State v. Norton, 134 Vt. at 103, 353 A.2d  at 326.  We have
previously rejected defendant's argument that the 1969 amendment of { 1201
overruled Storrs.  Carmody, 140 Vt. at 637-38, 442 A.2d  at 1295.  The test's
longevity and repeated affirmations attest to its rational delineation of
the statutory prohibition of driving while under the influence of intoxi-
cating liquor.  We accordingly reject defendant's contention that Storrs
should be overruled.
     Affirmed.



                                        FOR THE COURT:



                                        _______________________________
                                        Associate Justice




FN1.    The permissive inference of sobriety has since been repealed.  23
V.S.A. 1204(a)(1) (Supp. 1991).

FN2.    23 V.S.A. { 1204(a)(3), also amended in 1991, provided:
          (3) If there was at that time 0.10 percent or more by weight
     of alcohol in the person's blood or breath, as shown by analysis
     of the person's blood or breath, it shall be [a] permissive
     inference that the person was under the influence of intoxicating
     liquor in violation of section 1201(a)(2) or (3) of this title.

FN3.     The pertinent jury instruction was as follows:
          A person who, by drinking intoxicating liquor, has failed to
     retain full control of the faculties of his mind and body is under
     the influence of intoxicating liquor.  The extent to which he has
     lost the use of his mental and physical powers is not material to
     this question.  The state need not prove that the Defendant was
     under the influence of intoxicating liquor to such an extent that
     his ability to operate a motor vehicle was impaired.  However, a
     person operating a motor vehicle while under the influence of
     intoxicating liquor in the slightest degree is within the
     statutory prohibition of operation of a motor vehicle while under
     the influence of intoxicating liquor.


-------------------------------------------------------------------------------
                                     Dissenting

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-073


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Frank M. Zumbo                               Unit No. 2, Chittenden Circuit

                                             March Term, 1991


Michael S. Kupersmith, J.

William Sorrell, Chittenden County State's Attorney, Burlington, Gary S.
   Kessler, Supervising Appellate Prosecutor, Montpelier, and Geoffrey M.
   Coan, Student Intern, Vermont Law School (On the Brief), for plaintiff-
   appellee

Jane Watson and Robert W. Zeuner of Bauer, Gravel & Watson, Burlington, for
   defendant-appellant


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


     MORSE, J., dissenting. I disagree with the Court's conclusion in Part
IV that a defendant must introduce a chemical test to be entitled to a
permissive inference that he was not under the influence of intoxicating
liquor.  I concur with the rest of the opinion.
     In State v. Lombard, 146 Vt. 411, 413-14, 505 A.2d 1182, 1183-84
(1985), this Court upheld the defendant's conviction for DUI against a claim
that he was entitled to, but was refused, a jury instruction explaining the
then mandatory presumption of an earlier version of 23 V.S.A. { 1204(a)(1).
23 V.S.A. { 1204 (a)(1) (.05 percent or less BAC requires a finding of not
under the influence).  No test result was introduced nor was any other
evidence of defendant's BAC at the time of operation.  Lombard is distin-
guishable from this case because the basic fact, the probable BAC, was never
introduced in evidence and thus no presumption could apply.  In this case,
evidence of the defendant's BAC was introduced.  Therefore, {1204(a)(1),
amended to allow a permissive inference that the person was not under the
influence, applies.
     The State argues, and the Court today holds, that the plain meaning of
23 V.S.A. { 1204 dictates that the statutory inference does not apply
unless there is a chemical "analysis" in evidence showing "the amount of
alcohol in the person's blood or breath at the time alleged."  If that is
the plain meaning of this statute, it makes no sense.
     The inference arises not because a "test" was given, but because
certain scientific principles dictate that the percentage of alcohol in the
blood follows from varying levels of alcohol consumption.  An analysis of
these principles allows for the conclusion that a person who consumes one
drink will have a BAC of .05 percent or less thereafter. Accordingly, the
person should receive the benefit of the statutory inference of not being
under the influence.
     In the case at hand, such an analysis was introduced into evidence, as
the statute requires.  Yet the trial court refused to instruct the jury on
the permissive inference of { 1204.  A particular BAC does not cease to
exist at a given moment merely because a "test" was not performed.  Nor does
{1204(a)(1) require a test to prove it.  The law is not some metaphysical
exercise, like determining whether a tree falling in the woods makes no
sound unless there is someone there to hear it.
     If it is possible to analyze a person's BAC with the required level of
scientific precision without doing a laboratory blood or breath test, I see
no reason to say the statutory inference is no longer applicable.  The
inference is either scientifically sound or it is not.  See State v. Bushey,
149 Vt. 378, 380, 543 A.2d 1327, 1328-29 (1988) (expert testimony admissible
absent an admissible test result to calculate number of drinks needed to
reach a certain BAC).
     A contrary view would mean that the Legislature could discriminate
between people who are under .05 BAC and have a test and those under .05 BAC
who do not have a test simply because they were not tested, or their test
was lost or was inaccurate.  We should avoid such an absurd interpretation.
See State v. Rice, 145 Vt. 25, 34, 483 A.2d 248 253 (1984) (a statute will
not be construed to lead to absurd or irrational results).
     The Legislature, when it enacted various inferences for DUI, made
policy judgments based on scientific evidence concerning the effects of
intoxicating liquor.  It was, however, the legislature's prerogative to
determine what percentage of alcohol in the blood constitutes a violation
of the criminal law.  The Legislature has allowed the trier of fact to
determine the effect on the defendant of a BAC of .05 or less with the aid
of a statutory inference.  It could not legitimately declare that persons
with a .05 BAC or less  who introduce a test into evidence may be found not
guilty of DUI because an inference favors them, while those who prove the
same BAC level by expert testimony do not get the benefit of the inference.
Obviously, those unlucky enough to be in the latter situation incur a
greater risk of being found guilty.  Nevertheless, this is the effective
result of the majority's narrow interpretation of the word "analysis."
     I am mindful that this case has little future impact on DUI law,
because the .05 or less BAC inference was repealed by a 1991 amendment.
That legislative change notwithstanding, this defendant should have received
the full benefit of the prior law.
     I would reverse and remand.

                                        _________________________________
                                        Associate Justice