State v. Zele

State v. Zele  (97-239); 168 Vt. 154; 716 A.2d 833

[Filed 10-Jul-1998]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 97-239


State of Vermont                   Supreme Court

                                   On Appeal from
     v.                             District Court of Vermont,
                                   Unit No. 2, Addison Circuit

Robert C. Zele                     February Term, 1998


Matthew I. Katz, J.

       John T. Quinn, Addison County State's Attorney, and Sandra W. Everitt,
  Deputy State's Attorney, Middlebury, for Plaintiff-Appellee.

       Peter F. Langrock of Langrock Sperry & Wool, Middlebury, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.    Defendant appeals his conviction for possession of
  marijuana in violation of 18 V.S.A. § 4230(a)(1).  He argues that (1) the
  marijuana evidence was seized pursuant to a flawed warrant and should have
  been suppressed, (2) the State should have been required to elect a single
  cache of marijuana on which to base a conviction, and (3) the court should
  have declared a mistrial because of improper remarks by the prosecuting
  attorney during closing argument.  We affirm.

       In July 1996, two Vermont State Police troopers went to defendant's
  residence in response to a complaint that an assault had occurred.  When
  the troopers arrived, defendant invited them to enter the residence.  While
  questioning defendant, Trooper Matthew Raymond observed a used waterbong
  and noticed defendant move a bedroom door to a position that concealed the
  bong from view.  The trooper also detected the odor of burning marijuana. 
  Subsequently, the trooper received an anonymous tip that defendant and his
  friend dealt drugs from defendant's auto body shop, located in the garage
  beside the residence.  A few days later,

 

  Trooper Raymond applied for, and received, a warrant to search defendant's
  residence and garage for evidence of marijuana use.  In the resulting
  search, police recovered, among other things, two separate quantities, or
  caches, of marijuana.  One cache, weighing approximately 12.5 grams, was
  found in the kitchen area on top of a cupboard.  The second cache, weighing
  approximately one-half gram, was found in the garage adjacent to the
  residence.  The State charged constructive possession, and a jury returned
  a guilty verdict. Defendant appeals.

                                     I.

       Defendant's first claim of error is that the marijuana evidence was
  seized pursuant to a flawed warrant and should have been suppressed.  He
  makes essentially two arguments to support this claim.  First, he contends
  that Trooper Raymond's affidavit sworn in support of the warrant lacked
  sufficient information to support a finding of probable cause.  As part of
  this claim, defendant asserts that the affidavit contained a tip from an
  anonymous source which was not properly verified.  See V.R.Cr.P. 41(c) (to
  rely on information in affidavit obtained from confidential informant,
  there must be a "substantial basis for believing the source of the hearsay
  to be credible and for believing that there is factual basis for the
  information furnished").  In this case, we need not determine whether there
  was sufficient corroborating information with respect to the anonymous
  source because, even without the anonymous tip, the affidavit set forth
  sufficient information to support probable cause.

       Probable cause exists where information set out in an affidavit
  reveals circumstances from which a person of reasonable caution would
  conclude that a crime has been committed and that evidence of the crime
  will be found in the place to be searched.  See State v. Ballou, 148 Vt.
  427, 433-34, 535 A.2d 1280, 1284 (1987).  We examine the totality of the
  circumstances to determine whether there was substantial evidence
  supporting the warrant, see State v. Emmi, 160 Vt. 377, 381, 628 A.2d 939,
  942 (1993), keeping in mind that affidavits must be viewed in a
  common-sense manner and not be subjected to "hypertechnical scrutiny,"
  Ballou, 148 Vt. at 434, 535 A.2d  at 1284. The affidavit showed that Police
  Trooper Raymond observed in

 

  defendant's residence a large, approximately two-foot-high blue waterbong
  in plain sight.  The trooper observed that the bong was stained and
  appeared to have been used.  Further, the trooper detected the odor of
  marijuana and observed the defendant move a door into a position that hid
  the waterbong from view.  Those facts alone, when viewed in a common-sense
  manner, would lead a person of reasonable caution to believe that marijuana
  had been used at defendant's residence and that evidence of marijuana would
  be found there.

       Defendant's second argument is that Trooper Raymond showed reckless
  disregard for the truth by stating in the affidavit that he observed a used
  blue bong in defendant's residence. Defendant claims the bong was unused,
  and argues that Trooper Raymond improperly boosted the implication of
  marijuana use.

       Under principles announced by the United States Supreme Court in
  Franks v. Delaware, 438 U.S. 154, 155-56 (1978), a finding of probable
  cause may be challenged on grounds that the supporting affidavit contains
  false or misleading information, or that material information has been
  omitted.  A defendant must establish by a preponderance of the evidence
  that the government agent "intentionally, knowingly, or with reckless
  disregard for the truth" included in the affidavit false information, or
  omitted material information.  State v. Demers, ___ Vt. ___, ___, 707 A.2d 276, 278 (1997); accord Franks, 438 U.S.  at 155-56.  If a defendant
  satisfies this initial burden, the reviewing court will assess the
  affidavit as though false information had not been included, and as though
  omitted material information had been supplied, to determine if probable
  cause was shown.  See Franks, 438 U.S.  at 156; Demers, ___ Vt. at ___, 707 A.2d  at 278.  The court conducted a Franks hearing, at which defendant
  produced an unused blue bong, which he said was the one observed by Trooper
  Raymond.  Raymond testified that the bong produced in court was different
  from the one he had observed at the residence.  He noted that the bong
  produced in court was of different dimensions and did not have a sticker on
  it that the trooper had observed.  The court found Trooper Raymond's
  testimony credible and concluded that defendant had failed to persuade the
  court of any falsity

 

  in the affidavit.  We find nothing clearly erroneous in the district
  court's denial of the Franks motion.  See Demers, ___  Vt. at ___, 707 A.2d 
  at 279 (Supreme Court will reverse trial court's Franks conclusions only if
  clearly erroneous).

                                     II.

       Defendant next argues that the State should have been required to
  elect a single cache of marijuana on which to base its possession
  conviction, or that the court should have instructed the jury that all
  members must agree on a single cache possessed by defendant.  We disagree.

       As a general rule, when evidence at trial reflects two or more
  criminal acts, but defendant is charged with only one such act, the State
  must elect the specific act it seeks to use as the basis for conviction. 
  See State v. Corliss, 149 Vt. 100, 102, 539 A.2d 557, 559 (1987).  The rule
  avoids the risk that certain jury members will base a determination of
  guilt on one act, while others will rely on another, the result being an
  absence of unanimity that the defendant committed any single identifiable
  criminal act.  See id.  The rule also protects from the danger that "jurors
  will be swayed by the quantum of proof introduced as to all the acts when,
  in fact, there has been insufficient proof on any one of the alleged acts
  standing alone."  State v. Bailey, 144 Vt. 86, 98, 475 A.2d 1045, 1052
  (1984).  An exception exists, however, and no election is required, when
  numerous acts are so related as to constitute a single transaction or
  offense.  See id. at 98-99, 475 A.2d  at 1052 (where defendant committed
  repeated sexual assaults upon a single victim over a period of one and a
  half hours, state was not required to elect single act upon which to base
  conviction).  Moreover, we have observed that "[n]o election is required
  where a single criminal act is involved and the proof shows its commission
  in different modes and by different means."  State v. Coomer, 105 Vt. 175,
  178-79, 163 A. 585, 587 (1933).  The crime charged in this case constitutes
  a single criminal act and thus falls under the exception to the election
  rule.

       Possession under 18 V.S.A. § 4230(a)(1) is a continuing offense.  See
  W. LaFave and A. Scott, Substantive Criminal Law § 3.2(e), at 32
  n.42.1(Supp.1998) (crime of possession

 


  not an act but a continuing offense, lasting as long as the act of
  possession does).  The offense is committed when a defendant engages in
  particular conduct, rather than a specific act or acts.  See United States
  v. Jones, 533 F.2d 1387, 1391 (6th Cir. 1976) ("Possession is a course of
  conduct, not an act."); Johnson v. Morgenthau, 505 N.E.2d 240, 242-43 (N.Y.
  1987) (where criminal possession was defined in statute purely in terms of
  dominion and control, crime was continuing offense).

       Here, defendant was charged with a single count of constructive
  possession.  See State v. Benneig, 146 Vt. 391, 393-94, 505 A.2d 1192, 1194
  (1985) (constructive possession is when "[a] person who, although not in
  actual possession, knowingly has both the power and the intention . . . at
  a given time to exercise dominion or control over a thing").  The two
  caches of marijuana introduced at trial both tended to show defendant's
  commission of a single, continuing offense, not multiple acts.  The State
  was not required to elect an individual cache on which to base its case,
  nor was the district court required to instruct the jury to premise guilt
  of constructive possession on a single cache.  See State v. Groves, 477 N.W.2d 789, 800 (Neb. 1991) (state not required to elect which of three
  guns could provide basis for guilt in weapons possession charge); State v.
  Love, 908 P.2d 395, 398 (Wash. Ct. App. 1996) (crime of narcotics
  possession was continuing offense; state was not required to choose between
  one cache of cocaine found on defendant's person and another found at
  residence).

                                    III.

       Finally, defendant claims he was denied a fair trial due to
  inappropriate comments made by the State's prosecuting attorney in closing
  argument.  He claims first that the State made an improper reference to
  defendant's failure to testify at trial and shifted the burden of proof to
  him.  Second, he claims the prosecutor was untruthful in her argument that
  no evidence showed



  that the marijuana in question belonged to someone else.(FN1)  The district
  court denied defendant's motion for a new trial, and we review that ruling
  for abuse of discretion.  See State v. Francis, 151 Vt. 296, 301, 561 A.2d 392, 395 (1989).

       Defendant takes issue with the following statements from the State's
  closing argument in rebuttal:  "Did he [indicating defendant] at any time
  say anything like `this doesn't belong to me, this is the wrong person, one
  of my roommates is a big smoker, but I don't participate?' -- we didn't
  hear any evidence of that."  Defendant contends that the statement was
  intended to be, and was of such a character that the jury would take it to
  be, a comment on defendant's failure to testify at trial, and improperly
  placed on him a burden to exculpate himself.

       Comment on a defendant's failure to testify by either the court or the
  State is prohibited under both constitutional and statutory provisions. 
  See Griffin v. California, 380 U.S. 609, 615 (1965); State v. Norton, 134
  Vt. 100, 105, 353 A.2d 324, 327 (1976); 13 V.S.A. § 6601.  Comment is
  improper when it is "manifestly intended to be . . . [and is] of such
  character that the jury would naturally and necessarily take it to be a
  comment on the failure of the accused to testify."  Norton, 134 Vt. at 106,
  353 A.2d  at 327 (quoting United States ex. rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir. 1969)).  Remarks will not constitute reversible error
  unless the defendant makes a showing of resulting prejudice.  See State v.
  Powers, 163 Vt. 98, 103, 655 A.2d 712, 715 (1994).  Whether comment on a
  defendant's failure is prejudicial to defendant is a decision squarely
  "within the sound judgment and discretion of the trial court," and this
  Court will not reverse such determination unless there has been an abuse of
  discretion.  Norton, 134 Vt. at 105, 353 A.2d  at 327.

       The court concluded that the State was not commenting on defendant's
  failure to testify, 

 

  and we agree.  In its closing argument, the defense had stressed that the
  marijuana belonged to defendant's roommate, Thomas  Sweet.  In its rebuttal
  argument, the State countered by pointing out that defendant had made no
  such statement when police searched his residence.  The context of the
  rebuttal argument makes clear that the State was limiting its comment to
  what defendant had said, and not said, when Trooper Raymond went to
  defendant's house to implement the search warrant. The context  makes plain
  that the State intended no comment on defendant's  failure to testify at
  trial, nor would the jury have so construed those remarks.  For the same
  reason, the State's rebuttal remarks  were proper under V.R.Cr.P. 29.1 (in
  rebuttal argument, prosecution shall offer no theory of law or fact that
  was not presented in one or both of the prior arguments).  In any event,
  the court carefully instructed the jury that defendant bore no obligation
  to testify at trial, that the jury should make no negative inference from
  his failure to testify, and that the State bore the burden of proof as to
  the elements of the charged offense.  Defendant suffered no prejudice from
  the State's  remarks.

       Next, defendant claims that the State was not truthful when it stated
  in its closing argument: "[T]here is no evidence in this case that Tom
  Sweet possessed marijuana, smoked marijuana, or was living in that house." 
  Defendant notes that at the time the prosecuting attorney made those
  remarks, the State had already charged Thomas Sweet with constructive
  possession of the same marijuana for which defendant was charged with
  possessing.  According to defendant, the State's charge against Sweet
  created reasonable doubt as to defendant's guilt.  Defendant charges the
  State with deliberately contradicting that exculpatory evidence, and thus
  depriving defendant of a fair trial.

       State and federal law impose upon the prosecution a continuing duty to
  disclose all exculpatory evidence to a defendant.  See Brady v. Maryland,
  373 U.S. 83, 87 (1963); V.R.Cr.P. 16(b)(2).  Defendant in this case,
  however, concedes that the State fully disclosed

 

  to the defense the fact that it had charged Thomas Sweet with marijuana
  possession.(FN2)  Thus the issue may be narrowed to whether the State's
  remarks were in some respect untruthful, or if the State departed from the
  evidence at trial, and thereby prejudiced defendant.

       A conviction obtained through use of false evidence, where such
  falsity is known and allowed to go uncorrected by the State, violates a
  defendant's constitutional rights.  See State v. Ladabouche, 146 Vt. 279,
  281, 502 A.2d 852, 854 (1985).  Similarly, in closing arguments,
  prosecuting counsel may not make inflammatory statements, depart from the
  evidence presented at trial, or inject counsel's personal beliefs as to the
  guilt of the accused.  See State v. Riva, 145 Vt. 15, 20, 481 A.2d 1060,
  1063 (1984).  Here, defendant's right to a fair trial was not compromised. 
  The State said in rebuttal that "there is no evidence in this case that Tom
  Sweet possessed marijuana." (Emphasis added).  So stated, the comment was
  true because no evidence had been introduced to suggest that Sweet had
  possessed the marijuana.  Defendant himself had stated to the police when
  they searched his home that the marijuana did not belong to his roommates,
  and at the suppression hearing he stated that "Tom Sweet never smoked pot
  in the house."  Thus defendant's contention that the State contradicted
  exculpatory evidence, or departed from the evidence, fails.  Moreover, the
  fact that Sweet had been charged with possession of marijuana would not
  exculpate defendant.  The trial court instructed the jury that a person can
  be found guilty of constructive possession even if he possessed the
  marijuana jointly with another person.  Thus there is no reasonable
  probability that the jury would have returned a different verdict even had
  it known Sweet had been charged.  See State v. Gibbons, 146 Vt. 342, 344,
  503 A.2d 540, 541 (1985)(to warrant new trial, purported exculpatory

 

  evidence must create reasonable probability that, had evidence been
  introduced, trial outcome would have been different).

       Affirmed.


                       FOR THE COURT:



                       _______________________________________
                       Chief Justice




  --------------------------------------------------------------------------------------
                                  Footnotes



FN1.  Defendant raised a third claiim of error concerning the State's
  closing argument, that the State misrepresented the elements of the offense
  to the jury.  The claimed error, however, was raised for the first time on
  appeal, and thus we will not consider it.  See State v. Hughes, 158 Vt.
  398, 401, 610 A.2d 559, 561 (1992) (error not raised at trial deemed waived
  on appeal in absence of plain error).

FN2.  Defendent also argued in his brief that the State had violated
  two provisions of Vermont's Code of Professional Responsibility.  Such
  violations, if any, have no direct bearing on whether defendant received a
  fair trial, but rather govern whether an attorney should be sanctioned for
  unprofessional conduct.  Furthermore, at oral argument defendant conceded
  there was no violation of DR 7-103 (prosecutor must disclose exculpatory
  evidence), because the prosecutor had disclosed information about the
  charge against Thomas Sweet.