State v. Massey

State v. Massey (97-541); 169 Vt. 180; 730 A.2d 623

[Filed 16-Apr-1999]


       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. 97-541


State of Vermont	                          Supreme Court

                                                  On Appeal from
     v.	                                          District Court of Vermont,
                                                  Unit No. 1, Windham Circuit

Edwin J. Massey	                                  January Term, 1999



Robert Grussing, III, J.

       Dan M. Davis, Windham County State's Attorney, and James E. Maxwell,
  Deputy State's  Attorney, Brattleboro, for Plaintiff-Appellee.

       David A. Gibson, Brattleboro, for Defendant-Appellant.


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


       MORSE, J. 	Defendant, Edwin James Massey, appeals his conviction
  for violating 23  V.S.A. § 1201(a) operating a motor vehicle on a public
  highway while under the influence of  intoxicating liquor.  Defendant
  contends that the trial court erred by: (1) failing to suppress  statements
  he made while in custody for processing; (2) failing to declare a mistrial
  or provide a  limiting instruction to the jury after defendant testified
  about the results of a roadside breath test  (alcosensor); (3) admitting
  the results of a DataMaster breath test; and (4) limiting the jury's 
  consideration of the issue raised by defendant that the police prevented or
  denied him from  obtaining an independent blood test.  We affirm.


       In the town of Rockingham at approximately 1:00 p.m. on the afternoon
  of November 13,  1996, defendant drove his truck off of the road and into a
  telephone pole.  The weather was clear  and the road conditions were good. 
  The impact severed the pole and brought power lines down  across the road. 
  Two law enforcement officers from the Vermont State Police arrived at the
  scene 

 

  shortly after the accident.
  The first officer smelled alcohol on defendant's breath, observed
  defendant's slow,  deliberate movements, bloodshot eyes, and noticeable
  confusion when walking near the downed  power lines.  There was no apparent
  reason for the accident other than driver impairment,  although defendant
  claimed that he lost control of his truck while lighting a cigarette.  The
  officer  administered a roadside alcosensor breath test, the results of
  which fortified his belief that  defendant was under the influence of
  alcohol.  In accordance with V.R.Cr.P. 3(a)(5) (Cum. Supp.  1998), the
  first officer took defendant into custody and transported him to the police
  barracks for  an infrared breath test (DataMaster).  

       On the way to the police barracks, defendant made a number of
  unsolicited statements to  the police that were admitted into evidence at
  trial.  The officer testified that he did not believe  defendant was
  sincere when he stated, "You guys are great.  You guys are special," and
  then told  the officer that he couldn't do their job because he would be
  tougher than they were being with  him.  

       At the barracks, defendant telephoned an attorney and agreed to take
  the DataMaster test.  After the test was administered but before the
  results were obtained, defendant exclaimed "I  didn't have a drink today. 
  I told you that before."  Then he said "I want a blood test.  I'm not 
  answering any questions."  The test results indicated a blood alcohol
  content (BAC) of .195  percent.  During the course of processing, the
  officer provided defendant with information  regarding an independent test: 
  "Since you are being released, if you wish additional tests to be  paid for
  at your own expense, you will have to make your own arrangements.  Do you
  intend to  obtain additional tests?"  In response to defendant's
  affirmative answer, the officer gave him a  blood test kit and a list of
  facilities where he could go to obtain the independent test.  Defendant 
  was then permitted to make phone calls to secure a ride from the barracks. 
  Defendant was unable  to arrange a ride.  At approximately 3:45 p.m.,
  roughly an hour after the processing concluded,  the second officer offered
  defendant a ride home, and he accepted.  The second officer testified  at
  trial that he and 

 

  defendant had a lengthy conversation in the police cruiser and that
  defendant never indicated that  he wanted to be taken to a facility for a
  blood test.  

       At trial, defendant argued that the DataMaster results were flawed. 
  He first claimed that  he had been cleaning his house with ammonia and
  bleach earlier that day and that the resulting  lung irritation may have
  led to the positive test.  Defendant then questioned the procedures the 
  officer followed in administering the test, including whether he had
  followed procedures  recommended by the Vermont Criminal Justice Training
  Council (the Council) in its officer  training manual.  The procedures for
  administering the DataMaster test that appear on the driving  under the
  influence (DUI) processing form mirror the guidelines promulgated by the
  Council in  the manual.  The manual states that officers should observe
  subjects for fifteen minutes prior to  the test and recommends that the
  officer check the subject's mouth for foreign objects.  The  manual also
  states that officers should avoid handling the mouthpiece on the DataMaster
  and that  the machine should be located on a flat, sturdy surface.  

       Defendant maintained that the officer failed to observe him for
  fifteen minutes prior to the  test and failed to mark the appropriate box
  on the processing form noting the observation period.  Defendant also
  claimed that the officer did not check his mouth before the test. 
  Defendant  highlighted the lack of evidence that the DataMaster machine was
  located in a place at the  Rockingham barracks that followed the Council
  recommendations and similar lack of evidence that  the officer handled the
  mouthpiece properly.  Additionally, defendant pointed out that while the 
  officer was certified to administer the DataMaster in 1989, he had neither
  performed the test on  a suspect, nor received any re-certification
  training since then.  Defendant asserted further that  the officers failed
  to transport him to a facility to get an independent test.

       Over defense objection, the court admitted the results of the
  DataMaster.  The court  rejected defendant's arguments that the Council
  training procedures govern admissibility and that  the test should have
  been suppressed because the officers effectively prevented him from
  obtaining  an independent test.  Defendant also objected to the admission
  of the statements that he made to 

 

  the officer while en route to the police barracks.  Defendant moved
  for a mistrial, and in the  alternative, for a limiting instruction, when
  he testified about the alcosensor test result and the  State referenced it
  during closing argument.  The court denied defendant's motions, and the
  jury  returned a guilty verdict.  
                                     I.
       Defendant contends that the trial court committed error by admitting
  the statements he  made following his arrest and during the time he was in
  custody for processing.  Defendant claims  that these statements could not
  be used against him since the officer had not provided Miranda  warnings or
  any notice that what he said could be admitted in court.  Defendant argues
  that, where  police do not interrogate a suspect but hold him in custody to
  obtain an evidentiary breath sample,  simple fairness requires that he be
  informed that anything he utters may be used at trial.

       Defendant argues that our holding in State v. Forcier, 162 Vt. 71, 643 A.2d 1200 (1994),  should be extended to require officers, acting under the
  version of V.R.Cr.P. 3(a)(5) in effect in  1996, to inform suspects that
  anything they freely volunteer may be used against them in court.  In
  Forcier, we held that statements made after a Miranda waiver during
  interrogation while  defendant was in custody under V.R.Cr.P. 3(a)(5) (Cum.
  Supp. 1996) for the "limited purpose  of obtaining a sample of breath or
  blood" were inadmissible.  Forcier, 162 Vt. at 74, 643 A.2d   at 1201
  (quoting V.R.Cr.P. 3(a)(5), which has since been amended by the legislature
  and no  longer contains this language;  see 1998, No. 117, § 30).  There,
  defendant, after waiving his  Miranda warnings, responded to police
  interrogation while at the barracks.  The interrogation  yielded
  "substantial incriminating evidence" against the defendant.  Id. at 73, 643 A.2d  at 1201.  We held that the officers in Forcier, even after obtaining a
  Miranda waiver, were not authorized  under V.R.Cr.P. 3(a)(5) to interrogate
  defendant, and the statements made in response should  have been suppressed
  by the trial court.  See id. at 77, 79, 643 A.2d  at 1203.

       We decline defendant's invitation to extend the holding in Forcier. 
  In that case, we were  merely giving effect to the intent as demonstrated
  by the plain meaning of the rule.  Besides, 

 

  defendant's statements such as "you guys are great, you guys are
  special" did not contain an  admission that he was intoxicated, but were
  verbal acts prejudicial to him as behavior tending to  show that he was
  intoxicated.  The statements evidenced defendant's bravado and lack of 
  inhibition.  Therefore, the statements had independent legal significance
  and were admissible.  See  United States v. Trapnell, 495 F.2d 22, 24 (2d
  Cir. 1974) (statements made to psychiatrist tending  to show that defendant
  acted rationally were verbal acts not protected by Fifth Amendment).

                                     II.
  Defendant maintains that 23 V.S.A. § 1203(f) (Cum. Supp. 1998) bars the
  admission of  the alcosensor test result.  He further contends that his own
  testimony recounting the officer's  statement concerning the alcosensor
  result was inadmissible hearsay.  See V.R.E. 801(c).   Defendant testified
  on direct examination:

      [The officer] wanted to go ahead and have me blow into one of 
      these portable machines, like to see if you're intoxicated.  I said 
      "okay" and he asked me if I'd mind, and I said, "No, I don't 
      mind."  I blew into it and he holds it like this. . . he says, "It's 
      point two zero four (.204)."  I said, "Damn it all, I want another 
      test.  This is impossible.  I never had a drink this morning.  And 
      that's the truth."

  The State referenced this testimony in a question to its expert witness:  

      We're now at about . . . 1:30, as Mr. Massey has testified, he is 
      given the pre-arrest Alcosensor, and he's described to us what that 
      is that [the officer] used, held up and said it's a point two zero four 
      (.204) or whatever Mr. Massey testified to.  

      An hour later he's given the DataMaster with a point one nine five 
      (.195) . . .  I just have to ask you straight out, what are the effects 
      of the bleach and the ammonia on . . . the DataMaster machine?  

  The State also made reference to the alcosensor in closing argument:

      The defendant himself testified a result of two zero four (204) on 
      that screening device . . . somewhat surprising and unique that one 
      reaches a point where the argument is, hey, that's so high it 
      couldn't possibly have been . . . one nine five (195), ridiculous.  
      There must be something wrong here.  Well, there is something 
      wrong here.  Too much alcohol.

    
       Title 23 V.S.A. § 1203(f) (Cum. Supp. 1998) provides: "The results of
  [a] preliminary 
  
 

  screening test may be used for the purpose of deciding whether an
  arrest should be made and  whether to request an evidentiary test and shall
  not be used in any court proceeding except on  those issues."

       We have addressed claims of error based on evidence introduced by the
  aggrieved party  and held that the party must "assume the responsibility
  for whatever prejudice to his case derived  from this evidence."  Rash v.
  Waterhouse, 124 Vt. 476, 477, 207 A.2d 130, 132 (1965).  Our  reasoning in
  the civil context rested on sound policy: 

      A party who allowed inadmissible evidence to come in without 
      objection could gain an unconscionable advantage.  He would, in 
      effect, have a built-in 'veto' over the litigation if it took a course 
      unfavorable to him, for he could then bring forth his unmentioned 
      assignments of error and require a new trial.  

Id. at 478, 207 A.2d  at 132.

       We have recognized that this principle holds true in both civil and
  criminal cases.  See  State v. Berard, 132 Vt. 138, 145, 315 A.2d 501,
  506-507 (1974) (quoting Rash and noting that  defendants must assume
  responsibility for whatever prejudice derived from evidence introduced 
  without challenge);  see also State v. Crabtree, 482 S.E.2d 605, 612 (W.Va.
  1996) (invited error  doctrine prevents party from inducing erroneous
  response and then seeking to profit from that  error).  Defendant testified
  to the results of the alcosensor on direct examination.  The court 
  properly denied defendant's motion for a mistrial.  

       Defendant argued in the alternative that the court should have
  provided a limiting  instruction so that the jury would not rely on the
  alcosensor result as further proof of intoxication.  The court refused and
  ruled that the evidence introduced by defendant was before the jury for any 
  relevant purpose.


       Even if it were preferable that the court give a limiting instruction,
  it would not warrant  reversal.  The alcosensor test was not critically
  important to the prosecution.  In fact, it was  cumulative and unnecessary
  to the State's case in light of the DataMaster test that was properly 
  before the jury and the testimony of the police at the scene.  There was an
  abundance of evidence 

 

  for the jury to find guilt beyond a reasonable doubt notwithstanding the 
  objectionable test result. 

                                    III.

       Defendant also claims that the court erred in admitting the results of
  the DataMaster test.  He contends that the officer failed to follow the
  procedures recommended by the Council in its  officer training manual.
       
       Two alternatives exist for admitting the results of a DataMaster
  breath test in criminal or  civil suspension cases.  The proponent may take
  advantage of a statutory presumption of validity  and admissibility, as
  long as the test was performed by an instrument that met the Department of 
  Health performance standards.  See 23 V.S.A. §§ 1203(d) (criminal),
  1205(h)(4) (civil  suspension) (Cum. Supp. 1998).  Alternatively, the
  proponent may admit the test results by laying  a foundation through expert
  testimony.  See State v. Rolfe, 166 Vt. 1, 3, 686 A.2d 949, 952   (1996);
  see also State v. McGovern, 164 Vt. 67, 69, 664 A.2d 275, 276 (1995)
  (without statutory  basis for excluding breath test, rules of evidence
  determine whether results are admissible).  In  either case, the court
  determines under V.R.E. 104(a) whether the foundational requirements are 
  sufficient to warrant admissibility of the test results.

       Once the foundation facts for admissibility are established, the
  defendant may question the  validity of the test result, but it is for the
  jury to decide the weight to give the test.  Cf. State v.  Guidera,     Vt.   
  ,    , 707 A.2d 704, 705 (1998) (mem.) (stressing Rolfe's holding that 
  foundation for admissibility focuses on performance of the instrument). 
  The senior chemist for  the Department of Health testified for the State
  that the DataMaster used at the Rockingham police  barracks complied with
  the Department of Health performance standards.  Defendant did not  refute
  these foundation facts and there was no error in admitting the results of
  the DataMaster  through the statutory presumption in § 1203(d).


       Defendant's reliance on the Council recommendations is misplaced.  The
  step-by-step  procedures in the Council student training manual that are
  outlined on the DUI processing form  do not affect the foundational
  requirements for admissibility.  Defendant concedes that the officer 

 
  
  was certified to administer the test.  Defendant presented evidence
  that questioned the procedures,  but did not introduce any evidence
  refuting the reliability of the instrument itself.  Without  evidence
  attacking the DataMaster's reliability, defendant's arguments go only to
  the weight that  the jury could give to the test results and not to
  admissibility.  See State v. Rolfe, 166 Vt. 1, 13,  686 A.2d 949, 957
  (1996) (defendant free to offer evidence to contest foundational facts or
  to urge  jury to give test results no weight).

                                     IV.

       Defendant finally claims that the DataMaster test was inadmissible
  because the law  enforcement officers unreasonably interfered with his
  desire to obtain an independent test, and the  jury should have been
  permitted to reject the test results for that reason.  At issue are two 
  subsections of 23 V.S.A. § 1203a that govern independent chemical tests. 
  First, § 1203a(a)  addresses admissibility:  "The failure or inability to
  obtain an additional test or tests by a person  shall not preclude the
  admission in evidence of the test taken at the direction of an enforcement 
  officer unless the additional test was prevented or denied by the
  enforcement officer."  (Emphasis  added.)  Second, § 1203a(c) speaks to
  transportation: "If after reasonable efforts the person is  unable to
  arrange transportation necessary to obtain the blood test upon completion
  of processing,  the law enforcement officer shall provide or arrange
  transportation to a facility available to  administer the test unless, for
  good cause, the officer is unable to so."  

       At trial, the officers and defendant took the stand and testified to
  the events surrounding  his arrest and processing.  Conflicting testimony
  regarding defendant's efforts to secure his own  transportation home or to
  an independent facility was put before the jury.  The court found that 
  there was no evidence that the officers had prevented or denied defendant
  from obtaining an  independent test and ruled the test result admissible in
  evidence under 23 V.S.A. § 1203a(a).  The  State sought a limiting
  instruction on the transportation testimony that had already been
  introduced  and later withdrew its request for fear of "step[ping] further
  into the mud by making an instruction  out of it."  The court ultimately
  instructed the jury to consider the transportation testimony as 
       
 
  
  bearing only on the witness' credibility because it considered the
  issue of "whether or not the  officer acted in a proper or improper manner"
  as strictly a legal matter regarding admissibility. 

       Defendant first argues that the court erred in admitting the test
  result because the evidence  established that he was denied the opportunity
  to obtain an independent blood test when the  processing officers refused
  to give him transportation to a health facility for that purpose.  
  Questions of admissibility of evidence are for the court, see V.R.E. 104,
  and involve the  discretion of the trial judge.  See State v. Fuller, ___
  Vt. ___, ___, 721 A.2d 475, 481 (1998).  Based on the conflicting evidence,
  the trial court ruled that the officers neither prevented  defendant from
  obtaining an independent blood sample nor denied him the opportunity to do
  so.  See 23 V.S.A. § 1203a(a).  We find no abuse of discretion in that
  ruling.

       Defendant next argues that he was prevented from arguing to the jury
  that the failure of  the officers to provide or arrange transportation to a
  facility for an independent blood test, as  required by 23 V.S.A. §
  1203a(c), allowed them to refuse to accept the breath test.  See State v. 
  West, 151 Vt. 140, 143, 557 A.2d 873, 875 (1988) (jury may consider whether
  test was properly  administered in deciding whether to convict based on
  test result).  In assessing this claim, we note  that defendant was allowed
  to introduce before the jury evidence related to his claim that the 
  officer failed to arrange or provide transportation.  The issue relates to
  the court's instruction to  the jury on how to consider the transportation
  evidence.

       The court instructed the jury that they could consider the independent
  test evidence only  as part of its evaluation of the credibility of the
  witnesses.  During the charge conference, defense  counsel objected,
  arguing that the court should instruct that the evidence about the failure
  to  transport defendant to a facility for a blood test did not make the
  test inadmissible, but that the  jury would be entitled to consider the
  test "if it found . . . the chemical analysis was worthy of  being
  considered in accordance with the other protections."  After the
  instruction, defense counsel  "reiterate[d]" his exception stating "the
  instruction should have merely related that to not affecting 
  admissibility."  Defendant's cryptic objection was inadequate to comply
  with V.R.Cr.P. 30 

 

  (defendant must object to instruction, "stating distinctly the matter
  to which he objects and the  grounds of his objection").  At best,
  defendant was seeking an instruction that the judge had made  an
  admissibility ruling only and had not taken away the function of the jury
  to find the test result  reliable in order to convict.  We fail to see how
  defendant's added or different approach would  have aided the jury which
  knew little about the admissibility dispute.  In any event, defendant 
  proposed no alternative instruction that would have made his position clear
  to the court and the  jury.  See State v. Crosby, 124 Vt. 294, 297, 204 A.2d 123, 125-26 (1964) (finding no error  where defendant's nebulous
  objection to instruction did not reasonably indicate with specificity  what
  he was requesting). 	

       Affirmed.    

                                          FOR THE COURT:

                                          ___________________________________
                                          Associate Justice