State v. Devine

State v. Devine  (96-482); 168 Vt. 566; 719 A.2d 861

[Filed 22-May-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-482

                             FEBRUARY TERM, 1998

State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Chittenden Circuit
William Devine                  }
                                }     DOCKET NO.  5317-11-94CnCr &
                                                  6367-12-95CnCr

       In the above-entitled cause, the Clerk will enter:

       Defendant appeals his conviction for careless and negligent operation
  of a motor vehicle with death resulting (23 V.S.A. § 1091(d)).  Defendant
  contends that the trial court erred when it (1) denied his motion for a
  judgment of acquittal, (2) declined to suppress expert testimony pertaining
  to the post-impact speed of defendant's vehicle, and (3) declined to
  suppress evidence pertaining to defendant's possession of marijuana.  We
  affirm.

       While driving south on Route 7 on March 19, 1994, defendant drove his
  car across the center lane and collided with another vehicle in the
  northbound lane, killing the driver. Defendant was taken to the hospital
  where a bag of marijuana was found in his undergarments. A pipe containing
  marijuana residue was found in defendant's car.  The police subsequently
  informed defendant that they believed he operated his vehicle while under
  the influence of drugs. After being advised of his constitutional and
  statutory rights and after consulting with an attorney, defendant refused
  to provide a blood sample for testing.  Defendant's first trial on charges
  of careless and negligent operation of a motor vehicle (23 V.S.A. §
  1091(d)) resulted in a hung jury, but he was subsequently convicted at a
  second trial.

       Defendant first argues that the trial court erred by denying his
  motion for judgment of acquittal.  When reviewing a denial of a motion for
  a judgment of acquittal, we must consider whether the evidence, taken in
  the light most favorable to the State and excluding the modifying evidence,
  is sufficient to fairly and reasonably support a finding of guilt beyond a
  reasonable doubt.  See State v. Brooks, 163 Vt. 245, 254-55, 658 A.2d 22,
  29 (1995).

       Essentially, defendant claims that one of the State's theories of
  negligence was that he was driving while under the influence of marijuana. 
  From this defendant concludes that "the prosecution elevated the factual
  question of [defendant's] . . . drug intoxication to an essential element
  of the crime charged."  We disagree that proof of defendant's drug
  intoxication was an essential element of the crime.

       To obtain a conviction for careless and negligent operation of a motor
  vehicle the State must prove that the defendant, "while engaged in the
  violation of any law . . . applying to the operation or use of a motor
  vehicle or to the regulation of traffic, cause[d], as a result of the

 

  violation, the death of any person."  23 V.S.A. § 1091(d).(FN1) A conviction
  under § 1091(d) also requires proof of criminal negligence.  See State v.
  Beayon, 158 Vt. 133, 136, 605 A.2d 527, 528 (1992).  Therefore, a prima
  facie case required the State to show that defendant "disregarded a risk of
  death or injury `of such a nature and degree that [the] failure to perceive
  it, considering the nature and purpose of [his] conduct and the
  circumstances known to [him], involves a gross deviation from the standard
  of care that a reasonable person would observe in the [defendant's]
  situation.'"  Id. (quoting Model Penal Code definition of negligence, §
  2.02(2)(d) (1962)) (first alteration in original).  Proof of drug
  intoxication is not an essential element of proof under § 1091(d).

       The State's evidence at trial, when considered in the light most
  favorable to the State, tended to show that for several days before the
  accident, defendant had little opportunity for sleep.  He was working
  during the day and operating a light show until late at night at a bar
  where his friends' band was performing.  Defendant admitted consuming
  alcohol and smoking marijuana during this period.  On more than one
  occasion during this period defendant had trouble staying awake.  Defendant
  also had trouble staying awake on the day of the accident, and he fell
  asleep in his car during his lunch break shortly before the accident
  occurred.  Although defendant's lunch break ended at 12:30 p.m., he did not
  return until approximately 2:30 p.m. at which time defendant's supervisor
  noticed that defendant's eyes were red and puffy and he looked like he had
  just awakened.  Shortly thereafter defendant left work.  Although the road
  was dry and it was a clear day with good visibility, defendant drove in
  excess of the speed limit across the double yellow line and two lanes of
  oncoming traffic, and straight into the victim's car -- all without
  attempting to slow down or to turn out of the way.  After the accident,
  defendant was seen searching for something on the passenger side
  floorboard, where the marijuana pipe was later found.  Although defendant
  was able to identify himself and knew where he was and the time of day, he
  did not realize that his car had struck another vehicle. Defendant was
  taken to the hospital where a nurse found two baggies of marijuana in
  defendant's underwear.  We hold that this evidence is sufficient to carry
  the State's burden under § 1091(d). See Commonwealth v. Eichelberger, 528 A.2d 230, 231-32 (Pa. Super. Ct. 1987) (driving vehicle on the wrong side
  of road, lack of sleep and consumption of alcohol sufficient to support
  criminal negligence conviction); Chavis v. State, 526 So. 2d 659, 661 (Ala.
  Crim. App. 1988) (striking car four feet off roadway and driving in excess
  of speed limit after drinking and not having slept for twenty-one hours
  constitutes prima facie case of criminal negligence); see also Commonwealth
  v. Otis, 528 A.2d 249, 252 (Pa. Super. Ct. 1987) (jury could properly find
  defendant criminally negligent for having driven vehicle without having
  slept for thirty-six hours).

       Defendant next argues that the trial court erred when it failed to
  suppress testimony of the State's expert relating to and employing accident
  reconstruction techniques for the purposes of determining the speed of
  defendant's car at the time of the accident.  Defendant argues that such
  evidence should have been suppressed because he did not have an opportunity
  to examine either of the cars involved in the accident.  The police
  destroyed the vehicles before defendant was charged under § 1091(d).

       The State has a duty under V.R.Cr.P. 16 as well as a constitutional
  obligation to disclose to the defendant potentially exculpatory evidence. 
  See State v. Bailey, 144 Vt. 86, 92, 475 A.2d 1045, 1048-49 (1984).  When a
  defendant demonstrates a reasonable possibility that lost or

 

  otherwise unavailable evidence would have been exculpatory, determining the
  proper remedy requires "`a pragmatic balancing' of three factors: (1) the
  degree of negligence or bad faith on the part of the government; (2) the
  importance of the evidence lost; and (3) other evidence of guilt adduced at
  trial."  State v. Delisle, 162 Vt. 293, 310, 648 A.2d 632, 642-43 (1994)
  (quoting Bailey, 144 Vt. at 95, 475 A.2d at 1050).  "Factors two and three
  of the test are both methods to determine the prejudice caused by lost
  evidence in the context of the entire record." Id. at 310, 648 A.2d  at 643.

       Assuming arguendo that defendant's examination of the car would have
  yielded a reasonable possbility of exculpatory evidence, we conclude that
  the trial court properly denied defendant's suppression motion.  First,
  defendant did not prove bad faith.  At the time the cars were about to be
  destroyed, defendant was represented by counsel with regard to a civil
  suspension proceeding because he refused to take a blood test in connection
  with the accident. The State notified defendant's attorney at the time, and
  gave him an opportunity to examine the vehicles before they were salvaged. 
  Defendant's attorney declined.  Some months later, defendant was charged
  with careless and negligent driving.  In view of the fact that defendant's
  attorney was notified before the cars were to be destroyed and it was
  obvious, under the circumstances, that further charges might be brought, we
  cannot conclude that the timing of the destruction of the cars and the date
  of the new charges indicates bad faith on the part of the State.

       Second, we are not persuaded by defendant's claim that he was
  prejudiced by not having the opportunity to inspect his car.  Defendant
  complains that the vehicle itself was not available for him to perform a
  crush analysis, which he claims would have established the speed of the
  vehicle.  Defendant had access to all of the State's evidence, including
  extensive photographs and diagrams of the accident scene, as well as all of
  the data collected and recorded at the scene. This evidence was sufficient
  for defendant to present his own expert testimony concerning the speed of
  the vehicles and he did so at his first trial.  Cf. Commonwealth v. Hess,
  666 A.2d 705, 708 (Pa. Super. Ct. 1995) (suppression not necessary where
  prosecution provided access to evidence regarding vehicles and defendant
  able to introduce his own expert testimony). Moreover, as outlined above,
  the State's case was supported by extensive evidence other than that
  relating to the speed of defendant's car.  Because defendant failed to show
  bad faith or prejudice, we conclude that the trial court properly denied
  defendant's suppression motion.

       Defendant next argues that the trial court erred when it failed to
  suppress evidence consisting of marijuana and a "pot pipe."  Defendant
  contends that such evidence should have been excluded pursuant to V.R.E.
  403, because the prejudicial effect of the evidence outweighed its
  probative value.  We disagree.

       We will reverse a trial court's decision to admit evidence only if the
  court withheld or abused its discretion.  See State v. Powers, 163 Vt. 98,
  100, 655 A.2d 712, 713 (1994).  We have recently noted that "[e]vidence
  tending to inculpate the defendant always carries with it some prejudice." 
  State v. Kelley, 163 Vt. 325, 329, 664 A.2d 708, 711 (1995).  V.R.E. 403
  operates to exclude evidence when "its primary purpose or effect is to
  provoke horror or punish the defendant, or to appeal to the jury's
  sympathies."  Id.  We agree with defendant that possession of marijuana and
  a pipe when considered by itself is not sufficient to prove that defendant
  had smoked marijuana.  Nevertheless, when such evidence is considered in
  conjunction with defendant's admission that he had smoked marijuana within
  several days before the accident, that immediately after the accident he
  concealed marijuana in his underwear and searched for something in the same
  area where the marijuana pipe was later found, and his refusal to submit to
  a blood test, we conclude that it has considerable probative value of
  criminal negligence.  The trial court did not abuse its discretion by
  admitting the marijuana and pipe.

 

       Finally, defendant claims that the marijuana and pipe were relevant
  only as character evidence, and were inadmissible pursuant to V.R.E. 404. 
  Defendant did not raise this issue before the trial court.  We therefore
  decline to address it on appeal.  See State v. Jones, 160 Vt. 440, 448, 631 A.2d 840, 846 (1993).

       Affirmed.







                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  The Legislature repealed 23 V.S.A. § 1091(d) in 1996 as part of
  a general revision of the statute.  See 1995, No. 151 (Adj. Sess.), § 2.