State v. Longe
Annotate this Case
State v. Longe (98-088); 170 Vt. 35; 743 A.2d 569
[Filed 24-Sep-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. 98-088
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Franklin Circuit
Barry Longe January Term, 1999
Ronald F. Kilburn, J.
Edward G. Adrian, Franklin County Deputy State's Attorney, St. Albans,
for Plaintiff-Appellee.
Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J. Defendant Barry Longe appeals the decision of the
Franklin District Court denying his motion for judgment of acquittal
following a jury verdict of guilty for operating a motor vehicle after
license suspension in violation of 23 V.S.A. § 674(b). On appeal,
defendant argues that the reason for defendant's underlying suspension is
an essential element of a § 674(b) charge which the trial court
erroneously removed from the jury's consideration. We disagree and affirm
the conviction.
As a threshold matter, the parties disagree on our standard of review.
Defendant maintains that this case presents an error of law, and
accordingly is subject to de novo review. The State
contends that this case involves a discretionary ruling regarding
prejudicial evidence pursuant to V.R.E. 403 which is reviewed only for
abuse of discretion. Although the issue was raised initially under V.R.E.
403, the actual question before us is whether the trial court improperly
removed an essential element from the jury's consideration. This question
presents a question of law and, accordingly, we review it de novo.
At issue in this case is the connection among three related sections
of Title 23 of the Vermont Statutes. Defendant was charged with operating
a motor vehicle while his license was still suspended as a result of his
failure to comply with 23 V.S.A. § 1209a. Section 1209a provides in
relevant part that no license suspended or revoked under the subchapter
shall be reinstated unless the person has successfully completed an
alcohol and driving education program. Section 1201 prohibits any person
from operating, attempting to operate, or being in actual physical control
of any vehicle on a highway when the person's alcohol concentration is .08
or more. See 23 V.S.A. § 1201(a)(1). Finally, § 674(b), the section with
which defendant was charged, provides in part that:
[a] person whose license or privilege to operate a motor vehicle has
been suspended or revoked for a violation of section 1201 of this title
. . . and who operates or attempts to operate a motor vehicle upon a
public highway before reinstatement of the license shall be
imprisoned not more than two years or fined not more than $5,000,
or both.
23 V.S.A. § 674(b). Stated more succinctly: first, defendant's license
was revoked for driving under the influence of alcohol, see id; second, he
failed to satisfy the alcohol and driving education program, see id. §
1209a; third, he was charged with operating a motor vehicle while his
license was still suspended (DLS) due to his failure to satisfy the
requirements of § 1209a, see id. § 674(b).
Before the trial began, defendant indicated to the State and the court
that he would object to any mention of driving under the influence (DUI).
Accordingly, the State produced two witnesses, neither of whom testified
that the defendant had been suspended for a DUI conviction. An employee
of the Department of Motor Vehicles (DMV) testified that defendant's
privilege to operate a motor vehicle was suspended on October 24, 1997,
and had not been reinstated as a result of his failure to complete the §
1209a requirements. During the employee's testimony, however, the State
introduced two exhibits documenting the suspension, one of which was a
license suspension notice from the DMV indicating that defendant's license
was suspended for operating a motor vehicle with a blood alcohol content
of .08 or more. Defendant objected to admitting the documents, arguing
that any language relating to alcohol concentration be redacted. Before
admitting these documents, the court agreed to delete all language
relating to DUI to avoid prejudice to the defendant.
Later, during a colloquy regarding jury instructions, the State
suggested that § 1201 need not be mentioned to the jury. Instead, the
State contended that § 1209a could act as a "surrogate" for §1201, thereby
avoiding the potentially prejudicial language of § 1201. The court
responded that the issue raised a question of law for the court to
resolve. In the presence of counsel only, the court found, as a matter of
law, that the defendant had a previous conviction for operating a motor
vehicle with a blood alcohol concentration of more than .08 percent, and
that the underlying suspension was a result of that conviction. The court
later instructed the jury that the State's information charged the
defendant with DLS for failing to satisfy 23 V.S.A. § 1209a, in violation
of 23 V.S.A. § 674(b). The court further instructed:
The information that I read to you earlier made reference to . . .
§ 674(b) and that statute provides a person whose license or privilege
to operate a motor vehicle has been suspended or revoked for a
violation of § 1209 of this title and who operates . . . a motor vehicle
upon a public highway before the suspension period imposed for the
violation has expired shall be punished according to the law.
Now, in this case the State must prove the essential elements
as follows, each of them beyond a reasonable doubt:
First, that it was the defendant. . . .
That his operation of a motor vehicle was on a public highway.
That at the time of the operation, the defendant's right to operate a
motor vehicle was under active suspension, and that it had not been
reinstated.
Do not be concerned about the actual language of . . . § 1209a
or § 1201. It is sufficient if the State has shown beyond a reasonable
doubt that the defendant was under suspension at the time of
operation.
Defendant was convicted of DLS in violation of 23 V.S.A. § 674(b).
Defendant made a motion for judgment of acquittal or, alternatively, for a
new trial, both of which were denied.
On appeal, defendant argues that the court erred in instructing the
jury not to be concerned with the language of §§ 1201 or 1209a. He
contends that the court's determination that, as a matter of law,
defendant had been convicted of DUI, along with the corresponding jury
instruction, removed an essential element of the crime from the jury's
province and generated two errors. First, defendant argues that there was
no evidence that defendant's license was suspended for violation of § 1201
and, accordingly, the motion to acquit should have been granted. Second,
even if there were sufficient evidence to convict defendant of a § 1201
violation, defendant argues that the court erred in refusing to instruct
the jury that a verdict of guilty depended on a finding as to the reason
for the suspension.
The statutes governing DLS grade the offense depending on the section
violation on which the underlying suspension is based. In the instant
case, § 674(b) establishes a maximum of two years imprisonment, a fine of
$5,000, or both, if the underlying suspension was a result of a violation
of
§ 1201. Operation after suspension for any reason other than a violation
of sections 674, 1091, 1094, 1128, 1133, 1201, or 1205 of Title 23
constitutes a civil traffic violation. See 23 V.S.A. § 674. Defendant
argues that because the section violation of the underlying suspension
determines whether the offender will be subject to criminal or civil
penalties, the fact that defendant drove after his license was suspended
for a violation of § 1201 was an essential element of § 674(b), and this
element should have been determined by the jury rather than the court. See
State v. Williams, 160 Vt. 615, 617, 627 A.2d 1254, 1255 (1993) (mem).
We explained in Williams that prior to its amendment in 1991, § 674
set forth maximum fines and terms of imprisonment for operating a motor
vehicle with a suspended license based on the number of the defendant's
prior offenses. The reason for the underlying offense, therefore, was not
relevant to the fine or sentence imposed. As amended, however, § 674
subjects a defendant to criminal penalties only when the defendant's
underlying suspension resulted from violation of certain statutory
sections. We explained:
If the underlying suspension was for any reason other than a violation
of the sections listed in amended § 674(a), an operator commits a
civil traffic violation . . . and is subject only to civil penalties. Thus,
under the amended statute, the reason for the underlying suspension
determines whether the offender will be subject to criminal or civil
penalties.
Id. at 616, 627 A.2d at 1254 (internal quotation marks omitted).
Relying on this language, defendant argues that the reason for an
underlying suspension is an essential element of a § 674 charge and that
this element was improperly removed from the jury's province. In
Williams, we reversed a § 674 conviction because the information stated
that defendant operated a motor vehicle while his license was suspended in
violation of § 674, but did not state the
reason of the underlying suspension. See id. at 617, 627 A.2d at 1255. We
concluded that the conviction could not stand because the information
omitted an essential element of the offense and, therefore, the defendant
had no opportunity to present any potential defense concerning the reason
for the suspension. See id.
In the instant case, the information stated that the defendant
operated a motor vehicle when his "right to operate a motor vehicle was
under active suspension by the Commissioner of Motor Vehicles for Title 23
V.S.A. § 1209a and the same not having been reinstated, in violation of
Title 23 V.S.A. § 674(b)." Unlike the information in Williams, this
information sufficiently informed the defendant of the basis and nature of
the charge so as to enable him to prepare his defense. See, e.g., State
v. Towne, 158 Vt. 607, 631, 615 A.2d 484, 497 (1992) (information must set
forth charges with such particularity as will reasonably indicate the
exact offense with which the accused is charged). Moreover, at oral
argument, defendant conceded that the information sufficiently apprised him
of the charge he faced. Accordingly, while we agree that Williams
requires that the State provide the reason for the underlying suspension
in the information, we are unpersuaded that it requires the State to prove
beyond a reasonable doubt to the factfinder that defendant's license was
suspended because he was convicted of driving under the influence of
alcohol. Indeed, it was defendant's claim of undue prejudice that induced
the court to prohibit the introduction of evidence referring to the reason
for defendant's underlying suspension.(FN1)
At oral argument, however, defendant contended the court's
instructions to the jury that it "not be concerned about the actual
language" of § 1201 or § 1209a improperly relieved the jury of
its obligation to find that defendant's conviction under § 1201 accounted
for his suspension. Although the court instructed the jury that it need
not be concerned with the actual statutory language, the instructions
required a finding that at the time of the operation, defendant's right to
operate a motor vehicle was under active suspension and had not been
reinstated. The instructions also included a recitation of the
information which, as quoted above, made explicit reference to § 1209a as
the reason for the § 674(b) charge. Although we perceive some ambiguity in
the court's explanation, the instructions, when read in their entirety,
required the jury to find that defendant's license was suspended for
failing to comply with § 1209a.
Defendant further argues, however, that a conviction under § 1201 is
an essential element of a § 674(b) conviction, yet the State did not
present any evidence of a § 1201 violation. During oral argument,
defendant suggested that the decision in Old Chief v. United States, 519 U.S. 172 (1997), provides examples of possible methods for establishing
the requisite elements of a crime, while simultaneously avoiding unfairly
prejudicing the jury. We conclude, however, that both requirements were
achieved through the use of and reference to § 1209a which served as a
surrogate for the potential prejudice that reference to § 1201 might have
engendered. Although we recognize that the State did not present evidence
of the § 1201 conviction, we do not agree that the State was required to
prove that defendant's license was suspended for violation of § 1201 to
convict him under § 674(b). A reading of the alcohol and driving
education course requirements of § 1209a would be meaningless without a
reference to § 1201, which establishes in the first instance that driving
under the influence of alcohol is unlawful. Indeed, a subsection § 674
itself explicitly establishes that "[f]or the purposes of this section . .
. the suspension period for a violation of section 1201 . . . of this
title shall not be deemed to expire until the person has complied with
section 1209a
of this title." 23 V.S.A § 674(f). The evidence of defendant's failure to
satisfy the § 1209a requirements was sufficient to establish the reason
for the underlying suspension.
We find the decision in Old Chief instructive nevertheless, albeit for
reasons other than those which defendant posits. The petitioner in Old
Chief was charged with violating a statute that made it unlawful for
anyone to possess a firearm if they had been convicted of a crime
punishable by imprisonment for a term exceeding one year. See Old Chief,
519 at 174-75. Before trial, petitioner moved for an order requiring the
government to refrain from offering any evidence regarding the defendant's
prior criminal convictions, except to state that he was convicted of a
crime punishable by a term exceeding one year. See Old Chief, 519 U.S. at
175. He proposed that the jury be instructed that the defendant was
convicted of a crime punishable by a term of at least one year, but the
government refused to join the stipulation, insisting on its right to prove
the case in its own way. See id. at 176-77. The district court agreed
with the government's position. See id. at 177. The Supreme Court,
however, reversed the judgment. In so doing it held:
The issue is not whether concrete details of the prior crime should
come to the jurors' attention but whether the name or general
character of that crime is to be disclosed. . . . [T]he fact of the
qualifying conviction is alone what matters under the statute. . . . The
most the jury needs to know is that the conviction admitted by the
defendant falls within the class of crimes that Congress thought
should bar a convict from processing a gun, and this point may be
made readily in a defendant's admission and underscored in the
court's jury instructions."
Id. at 190.
Here, the evidence of defendant's failure to satisfy the § 1209a
requirements was sufficient for the jury to find the fact of the
qualifying underlying suspension. A DMV employee testified that on the
date of the alleged offense, defendant's license was suspended for failing
to comply with the
§ 1209a requirements, and the jury was presented with exhibits documenting
defendant's suspension. Furthermore, a failure to comply with the
requirements of § 1209a places the reason for defendant's underlying
suspension within the class of suspensions which subject an offender to
criminal penalties.
Defendant contends, however, that the reason for defendant's license
suspension involved purely historical fact, and therefore was an element
that required resolution by the jury and not the court. Defendant argues
that the decision in United States v. Gaudin, 515 U.S. 506 (1995), reveals
the trial court's error as a matter of basic constitutional law. In
Gaudin, the Court held that in a perjury prosecution, where criminal
liability depended on the materiality of the alleged falsehood, due
process required that the issue of materiality by submitted to the jury.
The materiality of a falsehood was a jury question because it turned on a
mixed question of law and fact, which is typically resolved by juries.
See id. at 512-13. Defendant argues that the element at issue in the
instant case - the reason for defendant's license suspension - involved
purely historical fact and therefore should have been resolved by the
jury.
Defendant overlooks, however, that although the court determined
independently that defendant had a previous conviction for DUI, the
instructions both reiterated the language in the information which
indicated that defendant's failure to comply with § 1209a led to the charge
under § 674(b), and required the jurors to find that at the time of the
alleged incident, defendant's right to operate a motor vehicle was under
active suspension. The reason for the underlying suspension was removed
from the jury's consideration at defense counsel's request. The issue of
fact - whether at the time of operating the motor vehicle defendant's
right to operate was under active suspension and had not been reinstated -
was left for the jury to decide. The jury considered the essential
elements
of the offense charged and had a sufficient evidentiary basis for finding
defendant guilty of violating § 674 (b). Accordingly, we affirm the
conviction.
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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Footnotes
FN1. The dissent minimizes defense counsel's active role in inviting the
error defendant now challenges. Before trial, defendant made clear his
objection to any mention of DUI. The court granted his request,
admonishing the State to only refer to § 1201 by statute number thereby
avoiding the alleged prejudice which concerned defendant. During the
State's case, defendant objected to the State's attempt to introduce the
suspension notice because it revealed defendant's blood-alcohol
concentration and would indirectly inform the jury of his DUI conviction.
Again, the court granted defendant's request, deleting the reference to
blood-alcohol concentration and explaining:
[I]t would seem to be sufficient in that the court could find at the
conclusion of the evidence that the State has met its burden if they
introduce sufficient evidence to show that the defendant at the time
of the operation in question was under active suspension as you claim
and had not been reinstated. There doesn't seem to be any requirement
for showing the reason for the suspension.
Defense counsel did not respond to this, allowing the evidence portion
of the trial to close without objection. However, when discussing jury
instructions before closing arguments, defense counsel reversed his
position and, for the first time, raised the issue that he brings before
this Court:
The Court [to Defense Counsel]: You feel that the
information is fatally defective because it does not allege that the . . .
defendant was under suspension for violation of § 1201.
Defense Counsel: Among other things, and it's impossible to
argue nor is there any proof of that.
The invited error doctrine, which applies in both civil and criminal
cases, see State v. Massey, __ Vt. __, __, 730 A.2d 623, 627 (1999), is
"a branch of the doctrine of waiver by which courts prevent a party from
inducing an erroneous ruling and later seeking to profit from the legal
consequences of having the ruling set aside." Harris v. Roadway Express,
Inc., 923 F.2d 59, 61 (6th Cir. 1991); see also, State v. Crabtree, 482 S.E.2d 605, 612 (W. Va. 1996) ("Having induced an error, a party in a
normal case may not at a later stage of the trial use the error to set
aside its immediate and adverse consequences.").
Here, the court granted defendant's pre-trial request to keep from the
jury any mention of the DUI conviction and sustained his objection during
the State's case to the inclusion of defendant's blood-alcohol
concentration on the suspension notice. Defendant did much more than
merely "minimal[ly] contribut[e] to the actions of the court." Post at 3
n.1. He actively induced the error and now attempts to profit from it,
asking for, in effect, a "built-in `veto' over the litigation if it took a
course unfavorable to him." See Rash v. Waterhouse, 124 Vt. 476, 478, 207 A.2d 130, 132 (1965). The invited error doctrine prevents defendant from
utilizing such a veto, particularly where, as here, the error was harmless
because the court did charge the jury with finding the ultimate fact of
whether at the time of the operation defendant's right to operate a motor
vehicle was under active suspension and had not been reinstated.
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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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-088
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Franklin Circuit
Barry Longe January Term, 1999
Ronald F. Kilburn, J.
Edward G. Adrion, Franklin County Deputy State's Attorney, St. Albans,
for Plaintiff-Appellee.
Robert Appel, Defender General, and William A. Nelson, Appellate
Attorney, Montpelier, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J., dissenting. Because I believe that the trial judge's
instructions improperly removed one of the essential elements of the crime
charged from the jury's determination, I respectfully dissent.
Defendant was charged with violating § 674(b) of Title 23 which reads
as follows:
A person whose license or privilege to operate a motor
vehicle has been suspended or revoked for a violation of section
1201 of this title . . . and who operates or attempts to operate a
motor vehicle upon a public highway before reinstatement of the
license shall be imprisoned not more than two years or fined not
more than $5,000.00, or both.
23 V.S.A.§ 674(b).
The statutory sections at play in this case are as follows. Section
1201 makes it a crime to operate a motor vehicle under the influence of
intoxicating liquor. Section 674 also provides, in subsection (f), that
the suspension period for a violation of § 1201 "shall not be deemed to
expire until the person has complied with section 1209a of this title and
the person's license has been reinstated." 23 V.S.A. § 1201. Section
1209a of Title 23 sets forth certain conditions for reinstatement of
suspended or revoked licenses. Thus, § 674(b) requires the State to prove,
as an essential element of the its case, that the operator's license was
suspended for a violation of §1201 of Title 23, and, if the imposed period
of suspension has run, the State must make out a prima facie case of
failure to comply with §1209a as required by § 674(f).
The State's criminal Information charged defendant with the following:
That [defendant] did then and there operate a motor vehicle
on and over a public highway, . . . when this person's right to
operate a motor vehicle was under active suspension by the
Commissioner of Motor Vehicles for Title 23 VSA § 1209a and the
same not having been reinstated, in violation of Title 23 VSA §
674(b).
Notwithstanding the fact that the Information misstates the violation
found in § 674(b), I do not dispute that it was sufficient to put
defendant on notice of the charge he faced, in accordance with our holding
in State v. Williams, 160 Vt. 615, 627 A.2d 1254 (1993) (mem). Because §
674(b) makes specific reference to § 1201 (as well as § 1205), defendant
was on notice the State was charging him with operating while his license
had been suspended for DUI and not reinstated pursuant to § 1209a. And, I
will concede that the basis for the underlying suspension was highlighted
for defendant by the reference in the Information to § 1209a. Thus, it was
fair to require defendant to defend on the basis of the charge as stated
in the particular information. See id. at 617, 627 A.2d at 1255.
Notice aside, however, defendant was denied his constitutional right
to have a jury determine if he was guilty beyond a reasonable doubt as to
every element of the crime charged when the trial judge decided, as a
matter of law, that defendant's underlying license suspension was for a
violation of § 1201. When the court instructed the jury that it need not
be concerned about the "actual language of . . . § 1209a or § 1201," that
"it was sufficient if the state has shown beyond a reasonable doubt that
defendant was under suspension at the time of operation," it took
determination of an essential element of the State's case away from the
finder of fact. If one follows the events at trial, it becomes apparent
how the State and the court, with a little help from defense counsel,
worked their way into, what I consider, reversible error.(FN1)
The question of whether mention would be made of the underlying
predicate for suspension, conviction of DUI, was first raised by the State
on the morning of trial. The prosecuting attorney told the court, "I'm
trying to get around the jury knowing that [defendant] was convicted of a
previous DWI. I can't see an easy way to do that or any way to do that
because of the way the legislature has crafted the statute." He further
noted, "[i]t is an important element of the offense." At which point
defense simply stated "we will object to any mention of DUI . . . and move
for a mistrial," but offered no further legal argument on the point. The
court was reluctant to tell the State how to present its case and told the
State's attorney he was on his own.
At trial, defense counsel expressed concern that the suspension letter
issued to defendant, an exhibit offered by the State, stated that the
suspension was for ".08 percent or more alcohol concentration first
offense criminal." The State argued that the Legislature recognized §
674(b) would require mention of the underlying reason for the suspension
and that it was "within what's a necessary element that the jury needs to
hear that far outweighs any prejudicial effect that it might have on the
jury . . . ." The court disagreed and opined that it could decide at the
conclusion of the evidence if the State had met its burden by introducing
sufficient evidence to show that defendant at the time of the operation in
question was under active suspension and had not been reinstated. The
court stated: "There doesn't seem to be any requirement for showing the
reason for the suspension." It then struck the language of the exhibit
regarding alcohol concentration and criminal offense because of the
"possibility that it could be prejudicial" to defendant. In another
exhibit offered by the State, defense counsel requested the code
designation indicating DUI be deleted and the State agreed to do so.
At the close of the State's case, defense moved for judgment of
acquittal because the State failed to show that defendant was under
suspension for the reason that makes driving with a suspended license a
criminal matter under § 674(b). The court denied the motion, finding that
the State had introduced sufficient evidence to demonstrate that the
underlying suspension made the matter criminal, without identifying what
evidence it was relying on in reaching that conclusion.
Then, during the jury charge conference, the State expressed concern
that the jury was going to wonder why the State never told them what §
1209a was. At this point defense argued that the information did not
properly charge a criminal violation of § 674 and moved for
dismissal of the charge. Defense counsel pointed out that he never
objected to a specific mention of § 1201, nor had the court ruled that
mention of the statute was forbidden. The State asserted that it
deliberately left any mention of § 1201 out of the information and argued
that "the Legislature must have contemplated the prejudicial effect of a
DWI introduction into this type of proceeding and therefore enacted §
674(f) which allows 1209 to act as surrogate for 1201." Following this
reasoning, the court denied defense's motion to dismiss.
Defendant then asked the court to instruct the jury that it must find
defendant's license had been suspended pursuant to § 1201. The State
protested and argued to reopen its case to introduce the stricken evidence
that would have supported such a finding:
[I]t's the State's contention that the only way for this jury, barring
the court's adoption of the surrogate of 1209a, to find the defendant
guilty is for the State to introduce evidence that he was in fact
convicted of 1201 for drunk driving and that he was given notice of
that suspension for having a blood alcohol content of .08 or more.
That was the only way. That was the State's contention from the
beginning.
The court ruled that the issue was a matter of law for the court to decide
and found that defendant's license had been suspended based on his
conviction for DUI. In effect, the court granted the State a directed
verdict on one element of the offense charged.
It has long been recognized that a trial judge "may not direct a
verdict of guilty no matter how conclusive the evidence." United
Brotherhood of Carpenters & Joiners of America v. United States, 330 U.S. 395, 408 (1947); see also Connecticut v. Johnson, 460 U.S. 73, 84 (1983);
Sparf and Hansen v. United States, 156 U.S. 51, 105 (1895). The
prohibition against directed verdicts includes "situations in which the
judge's instructions fall short of directing a guilty verdict but which
nevertheless have the effect of so doing by eliminating other relevant
considerations if the jury finds one fact to be true." United States v.
Hayward, 420 F.2d 142, 144 (D.C. Cir. 1969). As one panel of the Fifth
Circuit has stated, "[N]o fact, not even an undisputed fact, may be
determined by the Judge." Roe v. United States 287 F.2d 435, 440 (5th Cir.
1961), cert. den. 368 U.S. 824 (1961); accord United States v. Musgrave,
444 F.2d 755, 762 (5th Cir. 1971).
The rule prohibiting verdicts directed against an accused emanates
from the guarantee of due process and the right to a jury trial found in
the Fifth and Sixth Amendments to the United States Constitution. These
provisions require criminal convictions to rest upon a jury determination
that the defendant is guilty of every element of the crime with which he is
charged, beyond a reasonable doubt. See United States v. Gaudin, 515 U.S. 506, 510 (1995); see also In re Winship, 397 U.S. 358, 364 (1970) (due
process "protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.") (emphasis added); Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993).
Conviction under § 674(b) requires proof that the suspension at issue
results from a prior DUI conviction. Thus, defendant had a right to
demand that a jury decide whether the State proved the required basis of
his alleged suspension. By taking this determination away from the jury,
the court deprived defendant of this right.
In State v. Williams, 581 A.2d 78 (N.H. 1990), the defendant was
charged with fraud in connection with the sale of securities. The trial
court instructed the jury that certain limited partnership interests were
"securities." See id. at 79. In a per curiam decision citing In re
Winship, 397 U.S. at 363, the New Hampshire Supreme Court wrote: "The
fourteenth
amendment [to the United States Constitution] and part I, article 15 [of
the New Hampshire Constitution] have been interpreted as entitling a
criminal defendant to a jury determination on all factual elements of the
crime charged." Id. at 80. The court held that whether the limited
partnership interests were securities was a question of fact for the jury
and that it was error for the judge to decide this question as a matter of
law. See id.
In People v. Tice, 558 N.W.2d 245 (Mich. Ct. App. 1996), the defendant
was charged with being a felon in possession of a firearm. The trial
court instructed the jury that the defendant was a convicted felon. The
appellate court reversed, holding that the trial court had impermissibly
undermined the essential fact-finding function of the jury and freed the
prosecution from its duty to prove each element of the crime charged
beyond a reasonable doubt. "When a trial court instructs that an
essential element of a criminal offense exists as a matter of law, error
requiring reversal will be found." Id. at 248. See also Andrews v.
State, 652 S.W.2d 370, 374 (Tex. Ct. App. 1983) (trial court's instruction
held reversible error as "jury could not perform its function of being the
exclusive judge of facts."); State v. Rodriguez, 509 A.2d 72, 75 (Conn.
App. Ct. 1986) (trial court's charge to the jury regarding elements of
murder "preempted the jury's function and in effect directed a verdict as
to an essential element of the crime" which was "clearly unconstitutional
and deprives a criminal defendant of his right to due process of law.").
In Jones v. State, 707 So. 2d 773, 774 (Fla. Dist. Ct. App. 1998), the
trial court had instructed the jury that "arresting the defendant for
possession of cocaine and/or drug paraphernalia constitutes lawful
execution of a legal duty." The reviewing court held that this was
reversible error: "By stating that defendant's arrest constituted the
lawful execution of a
legal duty, the trial court, in effect, took [the] issue of [the]
lawfulness of his arrest from [the] jury and directed a verdict for the
state." Id. at 774.
In the present case, the court below held that the basis for
defendant's suspension was a question of law for the court to decide.
This holding is contrary to our decision in Williams, 160 Vt. at 617,
where we held the statute "makes the reason for the underlying suspension
an essential element of a § 674 violation," and misunderstands the
distinction between questions of law and questions of fact.
In Gaudin, 515 U.S. at 511-15, the U.S. Supreme Court held that in a
perjury prosecution where criminal liability depended on the materiality
of the alleged falsehood, due process required that the issue of
materiality be submitted to the jury. The Court held that the materiality
of a falsehood turned on a "mixed question of law and fact [which] has
typically been resolved by juries." Id. at 512. The element in this
case, by contrast -- the reason for defendant's license suspension --
involved purely historical fact. The trier of fact should therefore have
resolved it.
Nor was the error harmless. In Chapman v. California, 386 U.S. 18,
21-22 (1967), the Court held that errors of constitutional dimension do
not automatically require reversal of criminal convictions. Only such
constitutional errors as "necessarily render a trial fundamentally unfair"
require reversal without regard to the evidence in the particular case.
Rose v. Clark, 478 U.S. 570, 577 (1986). These errors include the
introduction of a coerced confession, the complete denial of a defendant's
right to counsel, adjudication by a biased judge, and the direction of a
verdict for the prosecution in a criminal jury trial. See id. at 577-78.
The harmless error doctrine does not apply to such errors. Because the
error committed in this case
is akin to the direction of a verdict for the prosecution on an element of
the offense charged, it is a constitutional error requiring reversal
without regard to the weight of the evidence. See Johnson, 460 U.S. at
84.
The Majority relies in part on the United States Supreme Court's
decision in Old Chief v. United States, 519 U.S. 172 (1997) for the
proposition that § 1209a properly served as a surrogate for § 1201. In
Old Chief, the defendant was charged with a violation 18 U.S.C. §
922(g)(1), which makes it unlawful for anyone who has been convicted in
any court of a crime punishable by imprisonment for a term exceeding one
year to possess a firearm. A crime punishable by imprisonment for a term
exceeding one year is defined in 18 U.S.C. § 921(a)(20). (FN2) The Court
held that the district court abused its discretion when it spurned the
defendant's offer to admit the fact of the prior conviction element of the
offense charged and instead admitted the full record of prior judgment of
conviction when name or nature of prior offense created a risk of a
verdict tainted by improper consideration. See Old Chief, 519 U.S. at
178-92.
The difference between Old Chief and the case at bar is obvious. In
Old Chief the defendant offered to stipulate to an instruction to the jury
that he had been convicted of a crime punishable by imprisonment exceeding
one year. In the present case defendant did not offer to stipulate that
his suspension had been for violation of § 1201. There are other
distinctions as well. In Old Chief the defendant moved for an order
prohibiting the government from offering
evidence or soliciting testimony regarding the prior criminal convictions,
arguing that evidence of the name and nature of the prior assault
conviction would unfairly tax the jury's capacity to hold the Government
to its burden of proof beyond a reasonable doubt on current charges. See
id. at 175. In other words, the defendant argued that by offering to
stipulate, evidence of the name and nature of the predicate offense would
be inadmissible under Rule 403 of the Federal Rules of Evidence, the
danger being that unfair prejudice from that evidence would substantially
outweigh its probative value.
Missing from the case at bar are any legal arguments on whether
mention of either "DUI" or § 1201 was admissible. Missing too is any
balancing by the court of competing interests under Vermont Rule of
Evidence 403. During trial, defense objected to two documents without
actually stating a basis for the objection other than noting that the
documents mentioned DUI. This resulted in the court agreeing that there
was a "possibility" that such evidence of DUI "could be prejudicial" and
ordering evidence of the reason for defendant's suspension struck from the
documents.
The fact that defendant's suspension was for violation of § 1201 was
not itself an ultimate fact because the statute did not specifically
require proof of DUI. But its demonstration was a step on the evidentiary
route to the ultimate fact, since it served to place defendant within a
particular sub-class of offenders for whom driving while their license
suspended is a crime outlawed by § 674(b).(FN3) What matters is that the
suspension was for a DUI conviction, not merely that defendant operated a
vehicle while his license was under suspension.
The State was concerned that charging the offense using the language
of the statute and introducing evidence from which a jury could find,
beyond a reasonable doubt, that defendant's suspension was based on a
violation of § 1201 might be prejudicial. As a threshold matter, evidence
is excludable only if it is "unfairly" prejudicial, in that it has "an
undue tendency to suggest decision on an improper basis." Fed. R. Evid.
403 advisory committee's note. "'[U]nfair prejudice' as used in Rule 403
is not to be equated with testimony simply adverse to the opposing party.
Virtually all evidence is prejudicial or it isn't material. The prejudice
must be 'unfair'" Dollar v. Long Mfg., 561 F.2d 613, 618 (5th Cir. 1977).
The structure of § 674 itself shows that the Legislature envisioned
jurors learning the basic nature for the suspension of defendant's
license. Section 674(b) governs operating while one's license is
suspended for violation of § 1201. It does not govern operating while
one's license is suspended for attempting to elude a police officer, see
23 V.S.A. § 1133, or for leaving the scene of an accident, see 23 V.S.A. §
1128 -- those are covered in § 674(a). Nor does it govern operating while
one's license is suspended or prior to reinstatement pursuant to § 676.
The State must prove that defendant's license had been suspended for
violation of § 1201, DUI. In short, under §674(b), a defendant's prior
suspension connotes not only that he has no license, but also that he has
engaged in DUI. Thus, the name and basic nature of defendant's crime that
resulted in suspension of his license is not unfairly prejudicial and is
admissible to prove his guilt of the crime charged.
The State argues that it was up to defendant to rebut the State's
evidence that he was suspended pursuant to § 1209a. However, it is for
the State to prove the essential elements of a criminal charge; the
defendant can stand silent until it does so. Then, as here, the defendant
can move for judgement of acquittal at the close of the State's case if he
believes the State has failed to produce evidence of an essential element.
As the U.S. Supreme Court has noted, "[t]he definition of the elements
of a criminal offense is entrusted to the legislature." Liparota v.
United States, 471 U.S. 419, 424 (1985). Within broad constitutional
bounds, legislatures have flexibility in defining the elements of a
criminal offense. See Patterson v. New York, 432 U.S. 197, 210 (1977).
State legislatures may reallocate burdens of proof by labeling elements as
affirmative defenses, or they may convert elements into "sentencing
factors" for consideration by the sentencing court. See McMillan v.
Pennsylvania, 477 U.S. 79, 85-86 (1986). If the Legislature did not intend
suspension pursuant to § 1201 to be an essential element of the crime
described in § 674(b), it could have made the reason for the suspension
merely a sentencing factor for the court to consider. This it did not do.
It is not a crime to fail to get your driver's license reinstated
after suspension for DUI. It is a crime, however, to drive if your license
has not been reinstated after suspension for DUI. Because the State failed
to introduce any evidence to support the jury's verdict that defendant was
operating while under suspension for violating § 1201, the conviction
should be reversed.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. The invited error doctrine holds that an action induced by an
appellant cannot ordinarily be a ground of error. See State v. Ross, 454 A.2d 266, 269 (Conn. 1983); see also State v. Massey, 10 Vt. L.W. 108, 110
(1999), citing State v. Crabtree, 482 S.E.2d 605, 612 (W. Va. 1996)
(invited error doctrine prevents a party from inducing an erroneous
response and then seeking to profit from that error). Beyond introducing
the specter of a mistrial, defense counsel's minimal contribution to the
actions of the court does not call for analysis under the doctrine of
invited error.
FN2. A crime punishable by imprisonment for a term exceeding one year is
defined to exclude "any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other similar
offenses relating to the regulation of business practices" and "any State
offense classified by the laws of the State as a misdemeanor and punishable
by a term of imprisonment of two years or less." 18 U.S.C.A. §
921(a)(20).
FN3. Section 676 of Title 23 makes it a civil traffic violation to
operate a motor vehicle after the license to operate has been suspended,
revoked or refused for reasons other than violations of certain statutes,
including § 1201.
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