State v. Bernier

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. 90-241


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Raymond P. J. Bernier                        Unit No. 3, Orleans Circuit

                                             March Term, 1991


Edward J. Cashman, J.

Jane Woodruff, Orleans County State's Attorney, and Persis H. Worrall,
   Deputy State's Attorney (On the Brief), Newport, for plaintiff-appellee

E. M. Allen, Defender General, and William Nelson, Appellate Attorney,
   Montpelier, and Susan A. Davis, Public Defender, Newport, for defendant-
   appellant


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



     GIBSON, J.  Defendant appeals from his conviction for petty larceny of
a television set and misdemeanor unlawful mischief in connection with the
vandalism of a highway rest area.  Defendant argues that the trial court
committed reversible error by (1) refusing to allow defendant's counsel to
voir dire the jury on the issue of reasonable doubt, and (2) permitting a
police officer to read from a transcript of defendant's taped interro-
gation. (FN1) We affirm.
                                    I.
     During voir dire, defendant's counsel asked a prospective juror, "What
does it mean to you to have evidence beyond a reasonable doubt?"  The State
objected, arguing that the term is ambiguous and the jury could be confused
or misled by the inquiry.  The court sustained the objection, stating that
"any attempt to define or discuss . . . the charge, reasonable doubt, tends
to confuse more than inform" the jury.
      The nature and scope of voir dire is within the sound discretion of
the trial court, and decisions regarding voir dire will be reversed only
where the court abuses its discretion.  Parker v. Hoefer, 118 Vt. 1, 5, 100 A.2d 434, 438 (1953); see also Woodmansee v. Stoneman, 133 Vt. 449, 456, 344 A.2d 26, 30 (1975) (holding that the trial court did not abuse its discre-
tion when it refused to allow separate voir dire of each juror because of
widespread publicity).  Although attorneys in Vermont have the right to
examine jurors directly, the trial court is responsible for overseeing the
voir dire.  V.R.Cr.P. 24(a); see State v. Oakes, 129 Vt. 241, 253, 276 A.2d 18, 26, cert. denied, 404 U.S. 965 (1971).
     In the instant case, defense counsel argues that the question was
designed to determine whether the juror had any preconceived ideas that
would prejudice defendant.  But the question, as framed, would have
required the juror to give a legal definition of the term "beyond a reason-
able doubt."  It is unreasonable to expect a potential juror to define a
legal concept.  See State v. Turley, 87 Vt. 163, 166-67, 88 A. 562, 564
(1913) ("Jurors are not required or expected to be learned in the law.").
The case principally relied upon by defendant, State v. Hawkins, 376 So. 2d 943 (La. 1979), is inapposite.  In that case, the Louisiana Supreme Court
         held that the "trial judge erred when he cut off all examination by the
defense on [the standard of proof] issue".  Id. at 950 (emphasis added).  In
contrast, the trial court's ruling herein did not cut off all examination.
For example, it did not foreclose counsel from asking other questions
relative to the burden of proof or the jury's willingness to follow the
court's instructions on the subject.  Other courts have held that there is
no abuse of discretion in prohibiting voir dire on a legal concept such as
"beyond a reasonable doubt."  See, e.g., United States v. Vera, 701 F.2d 1349, 1356 (11th Cir. 1983); Dutton v. State, 452 A.2d 127, 136 (Del. 1982);
Baxter v. State, 254 Ga. 538, 543, 331 S.E.2d 561, 568, cert. denied, 474 U.S. 935 (1985); Commonwealth v. England, 474 Pa. 1, 8-9, 375 A.2d 1292,
1295-96 (1977).  The trial court did not abuse its discretion.
                                    II.
     Defendant also argues that the trial court committed reversible error
by permitting a police officer to read from a transcript of the officer's
interrogation of defendant about the incident in question.  Defendant sub-
mitted voluntarily to the taped interrogation after having received Miranda
warnings.  The State initially sought to play the tape itself.  The court,
however, sustained defendant's objection to this procedure on grounds that
the tape contained substantial irrelevant and inadmissible material.  The
court instructed the State to avoid these matters, and then allowed the
officer to read other portions of the transcript.
     Defendant contends that the transcript contained irrelevant and
immaterial evidence, including hearsay statements of a co-defendant.  The
trial court has broad discretion in determining whether evidence is rele-
vant, and will not be overruled absent an abuse of discretion.  State v.
McElreavy, 2 Vt. L.W. 236, 237 (June 7, 1991).  While it is clear that the
evidence was not used for impeachment purposes inasmuch as defendant did not
testify or make any other statements, it is also clear from defendant's
answers that he was present during the vandalizing of the rest area and that
his transcript statements were relevant.  Thus, the trial court did not
abuse its discretion in rejecting defendant's contention that the evidence
was irrelevant and immaterial.
     Defendant also argues that most of his answers to the police officer
did not constitute admissions because they were mostly denials or statements
that he could not remember what had occurred.  In his brief, defendant seems
to argue that only incriminating statements constitute admissions.  Admis-
sions include any statement made by and offered against a party opponent.
V.R.E. 801(d)(2)(A); see, e.g., United States v. Leal, 781 F.2d 1108, 1111
(5th Cir.), cert. denied, 479 U.S. 831 (1986) (defendant's out-of-court
statements were admissible since they were relevant; "a party's words,
offered against him, form an exception to the definition of hearsay").  They
need not be against the declarant's interest when made.  E. Cleary,
McCormick on Evidence { 263, at 776-77 (3rd ed. 1984); see, e.g., People of
Territory of Guam v. Ojeda, 758 F.2d 403, 408 (9th Cir. 1985).  Upon a
review of the record, we conclude that defendant's responses to the police
officer do constitute "admissions" within the meaning of Rule 801(d)(2)(A).
Cf. United States v. Shunk, 881 F.2d 917, 918 (10th Cir. 1989) (per curiam)
(characterizing defendant's responses to police officer as admissions within
the meaning of Fed. R. Evid. 801(d)(2)(A)).  Defendant's further contention
that his responses were offered for the improper purpose of corroborating
the testimony of the co-defendant fails, since, as we have noted earlier,
the responses were relevant and he cites no rule requiring exclusion.  See
State v. Curavoo, ___ Vt. ___, ___, 587 A.2d 963, 964-65 (1991) (in the
absence of a rule requiring exclusion, all relevant evidence is admissible);
V.R.E. 402.
     Defendant's final contention is that the police officer's questions in
the transcript included inadmissible speculative and conclusory statements.
We disagree that the statements were inadmissible.  First, the statements
provided context for defendant's responses and were not offered for the
truth of the matters asserted.  See, e.g., United States v. Gutierrez-
Chavez, 842 F.2d 77, 81 (5th Cir. 1988); United States v. Jordan, 810 F.2d 262, 264 (D.C. Cir.), cert. denied, 481 U.S. 1032 (1987).  Second, where
defendant adopted the officer's statements -- as was often the case -- the
statements became adoptive admissions on the part of defendant.  V.R.E.
801(d)(2)(b); see United States v. Smith, 600 F.2d 149, 152 (8th Cir. 1979).
Defendant's contention regarding the speculative and conclusory form of the
officer's statements appears to raise the question of whether those state-
ments caused "unfair prejudice." V.R.E. 403.  We will not reverse a trial
court's Rule 403 ruling absent an abuse of discretion.  State v. Callahan,
___ Vt. ___, ___, 587 A.2d 970, 973 (1991).  In the instant case, defendant
has not shown that the court withheld or abused its discretion or exercised
it on grounds clearly untenable or unreasonable.  See State v. McElreavy, 2
Vt. L.W. at 237.
     Affirmed.

                                        FOR THE COURT:


                                        _______________________________
                                        Associate Justice




FN1.    Defendant also argued in his brief that the trial court erred in
allowing the state's attorney to file an amended information on the first
day of trial, charging damage to all property owned by the State rather than
specific items.  Defendant waived this issue at oral argument.