State v. Tongue

State v. Tongue (98-516 & 99-126); 170 Vt. 409; 753 A.2d 356

[Filed 17-Mar-2000]


       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.


                            Nos. 98-516 & 99-126


State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.	                                         District Court of Vermont,
                                                 Unit No. 3, Franklin Circuit

Edward L. Tongue	                         December Term, 1999



Charon A. True, Acting J. (98-516)

Michael S. Kupersmith, J. (99-126)

Edward G. Adrian, Franklin County Deputy State's Attorney, St. Albans, for 
  Plaintiff-Appellee.

Robert Appel, Defender General, and Anna Saxman, Appellate Attorney, Montpelier, 
  for Defendant-Appellant.


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


       SKOGLUND, J.  In these consolidated cases, defendant Edward Tongue
  appeals from the  civil suspension of his driver's license and from the
  district court's denial of his motion to suppress  and motion to reconsider
  in the related criminal case.  On appeal, defendant argues that (1) the
  court  erred in denying his motion to dismiss the civil suspension
  proceeding; (2) the court in the civil  suspension proceeding erred in
  denying his motion to suppress; and (3) the court in the criminal 
  proceeding erred because it denied defendant's motion to suppress and
  motion to reconsider without  holding a hearing, without making findings of
  fact, and without reaching the merits of the motion.  We affirm in part and
  reverse in part.

 

       The relevant facts are not in dispute.  On August 23, 1998, at
  approximately two o'clock  in  the morning, Trooper John Young was driving
  down Shaw Road on his way to investigate a  domestic dispute.  While en
  route, he observed defendant sitting behind the steering wheel of a car 
  parked off of the traveled portion of Shaw Road.  The car's lights were off
  and its engine was not  running.  After completing the response to the
  domestic dispute, Trooper Young, joined by Trooper  Raymond, returned to
  the area on Shaw Road where Trooper Young had seen defendant's car 
  approximately twenty minutes earlier.  Both troopers approached the car and
  saw that defendant was  apparently asleep.  They detected a strong odor of
  intoxicants coming through the partially opened  car window, knocked on the
  window, awakened defendant, and, based upon their observations,  processed
  defendant for driving while intoxicated (DWI). 

       On August 28, 1998, Trooper Young sent defendant a notice of intent to
  suspend his driver's  license.  See 23 V.S.A. § 1205(c).  On August 30,
  1998, defendant requested a hearing before the  district court on the issue
  of license suspension.  See id. § 1205(f).  On October 5, 1998, the court 
  held a preliminary hearing.  See id. § 1205(g).  On October 19, 1998,
  fifty-seven days after the date  of the alleged offense, the court held a
  final hearing.  See id. § 1205(h).  Defendant moved to dismiss  the final
  hearing because it had not been held within forty-two days of the date of
  the alleged  offense, as required by § 1205(h).  The court denied
  defendant's motion, finding that there was good  cause for the delayed
  hearing because "one assumes that the State has done all that it can to
  bring  the charge within the 21 days and we have scheduled the final
  hearing within 21 days of the  preliminary."  See id. ("[T]he court shall
  schedule a final hearing on the merits to be held within 21  days of the
  date of the preliminary hearing.  In no event may a final hearing occur
  more than 42 days  after the date of the alleged offense without the
  consent of the defendant or for good cause shown.").

 

       Defendant also moved to suppress all of the evidence that flowed from
  the seizure, arguing  that the troopers did not have a reasonable and
  articulable suspicion to justify seizing him.  See State  v. Lamb, 168 Vt.
  194, 196, 720 A.2d 1101, 1102 (1998).  The State countered that no seizure
  had  taken place, and therefore, the troopers were not required to have a
  reasonable and articulable  suspicion.  The State further argued that, even
  if the court concluded that a seizure had taken place,  the seizure was
  justified based on the community caretaking doctrine.  The court denied the
  motion,  concluding that a seizure had taken place, and that, under the
  community caretaking doctrine, the  troopers were justified in seizing
  defendant.  See State v. Marcello, 157 Vt. 657, 658, 599 A.2d 357,  358
  (1991) (mem.).   The court entered judgment for the State and suspended
  defendant's driver's  license.  Defendant appeals the suspension.

       On October 19, 1998, in the criminal proceeding, defendant filed a
  motion to suppress all  evidence that flowed from the seizure, arguing
  that, based on the above-stated facts, the troopers did  not have a
  reasonable and articulable suspicion to justify seizing him.  The State did
  not respond,  and, on November 18, 1998, the court denied defendant's
  motion, holding that defendant did not  allege that a seizure had taken
  place.  On November 23, 1999, defendant filed a motion to reconsider 
  alleging, for the first time, that one of the troopers banged on
  defendant's car door and illuminated  the interior of his car with a
  flashlight, and that both troopers had blocked his car in with their 
  cruisers.  Based on these additional facts, defendant argued that a seizure
  had occurred.  Further, he  contended that there were no facts to justify
  the seizure.  Thus, according to defendant, because the  troopers had no
  reasonable and articulable suspicion to justify seizing him, and because
  the seizure  could not be justified under the community caretaking
  doctrine, the resulting evidence had to be  suppressed.  The State did not
  respond to this motion.  On January 20, 1999, the court denied the 

 

  motion, stating:  "Serial motions are disfavored."  A jury subsequently
  convicted defendant of DWI.  See 23 V.S.A. § 1201(a)(2).  Defendant filed a
  motion for judgment of acquittal or for a new trial,  alleging that the
  State's evidence was insufficient to sustain the conviction.  See V.R.Cr.P.
  29(c) &  33.  The court denied the motion.  Defendant appeals his
  conviction.

                   I. Civil License Suspension Proceeding

       Defendant first argues that the court erred in denying his motion to
  dismiss the civil  suspension proceeding.  According to defendant, because
  the final hearing was not held within forty-two days of the date of the
  alleged offense, under 23 V.S.A. § 1205(h), the court should have 
  dismissed the proceeding.  Furthermore, defendant argues, the court erred
  in finding that there was  good cause for the delay in the hearing.  We
  agree with both contentions.

       Defendant's first argument is controlled by our recent decision in
  State v. Singer, 11 Vt. L.  W. 48 (2000).  There, we held that, under §
  1205(h), if a final hearing is not held within forty-two  days of the date
  of the alleged offense, the proceeding must be dismissed.  See id. at 50.

       Next, whether good cause exists is a mixed question of fact and law. 
  See id.  The court's  findings of fact will be upheld "unless they are
  unsupported by the evidence or clearly erroneous."  State v. Zaccaro, 154
  Vt. 83, 86, 574 A.2d 1256, 1258-59 (1990).  Its conclusion regarding good 
  cause "will be upheld if supported by the findings." City of Burlington v.
  Davis, 160 Vt. 183, 184,  624 A.2d 872, 873 (1993).  

       As noted above, the court found good cause based upon its assumption
  that the State had  done all it could to bring the proceeding in a timely
  manner.  However, there was no evidence to  support the court's assumption. 
  The State did not argue that it had good cause and thus presented  no
  evidence regarding good cause.  Therefore, the court's conclusion that the
  State had good cause  for the delay is unsupported by the evidence and
  cannot be sustained.

 

       Because the final hearing was not held within forty-two days of the
  date of the alleged  offense, and because the State did not demonstrate
  good cause for the delay, the civil license  suspension proceeding should
  have been dismissed.(FN1) Therefore, we need not address  defendant's
  argument that, in the civil suspension proceeding, the court erred in
  denying his motion  to suppress.

                           II. Criminal Proceeding

       Next, defendant argues that, in the criminal proceeding, the court
  erred because it denied his  motion to suppress and motion to reconsider
  without holding a hearing, without making findings of  fact, and without
  reaching the merits of the motions, in violation of his rights under
  Chapter I,  Article 4 of the Vermont Constitution.

       With regard to defendant's argument that the court erred because it
  neither held a hearing nor  made findings of fact, we discussed this
  precise issue in State v. Senecal, 145 Vt. 554, 497 A.2d 349  (1985). 
  There, we stated:  "A hearing on a motion is not required unless the motion
  papers 'indicate  a real dispute for one or more relevant facts.'"  Id. at
  560, 497 A.2d  at 352 (quoting Reporter's Notes,  V.R.Cr.P. 47(b)(2)). 
  Furthermore, we stated that the failure to hold an evidentiary hearing does
  not  deny due process rights unless "substantial factual issues" exist. 
  Id. at 561, 497 A.2d  at 352.  See  also Quesnel v. Town of Middlebury, 167
  Vt. 252, 258, 706 A.2d 436, 439 (1997) (Chapter I, Article  4 of Vermont
  Constitution is equivalent to federal Due Process Clause).  Finally, in
  Senecal, we  noted that, in deciding a motion, a court need not make
  findings of fact unless there is a factual  dispute.  See Senecal, 145 Vt.
  at 561, 497 A.2d  at 352.  

 

       Here, the State did not respond to either defendant's motion to
  suppress or his motion to  reconsider.  Thus, there was no factual dispute
  and the court was, therefore, not required to make  findings of fact or to
  hold an evidentiary hearing.  See id.
  
       Next, defendant argues that the court erred in failing to reach the
  merits of his motion to  suppress and motion to reconsider.  The court
  denied defendant's motion to suppress because  defendant failed to allege
  that a seizure had even occurred.  According to defendant's motion, a 
  trooper "approached Defendant's vehicle which was parked in a pull-off. 
  The Defendant was  sleeping behind the wheel with the engine and lights
  off.  [The trooper] detected an odor of  intoxicants and, after waking the
  Defendant, processed him for DWI."  The court determined that,  given the
  facts, no seizure had occurred.

       Subsequently, defendant filed a motion to reconsider, alleging the
  additional facts that both  troopers blocked defendant's car in with their
  cruisers, and that one trooper had used a flashlight to  illuminate the
  inside of defendant's car.  The court denied this motion on the ground that
  "[s]erial  motions are disfavored." 
 	
       First, the court did reach the merits of defendant's motion to
  suppress.  In relevant part, defendant's  motion alleged that a trooper
  approached defendant's car and awoke defendant.  Under these facts,  the
  court concluded that no seizure occurred, citing State v. Burgess, 163 Vt.
  259, 261, 657 A.2d 202, 203 (1995) (when police officer merely approaches
  and questions person in parked vehicle, no  seizure has occurred; test is
  whether officer has done anything to inhibit person's freedom of 
  movement), and State v. Sutphin, 159 Vt. 9, 12, 614 A.2d 792, 794 (1992)
  (Dooley, J., concurring)  ("'the mere approaching and questioning of a
  person seated in a parked vehicle does not constitute  a seizure.'")
  (quoting People v. Murray, 560 N.E.2d 309, 313 (Ill. 1990)).  Whether a 

 

  seizure  occurred is a substantive, not procedural, issue, and the court
  addressed the merits of  whether there had been a seizure.

       Second, the court did not err in failing to reach the merits of
  defendant's motion to  reconsider.  We have never held that, where new
  facts are adduced in a motion to reconsider, the  court is required to
  reconsider its ruling.  In State v. Bruno, 157 Vt. 6, 595 A.2d 272 (1991),
  we  stated that it is better practice for the court to reconsider a
  pretrial ruling "where serious grounds  arise as to the correctness of the
  . . . ruling."  Id. at 8, 595 A.2d  at 273-74.  However, we also  emphasized
  that "trial court reconsideration of pretrial suppression rulings is to be
  the exception, not  the rule.  A contrary emphasis would have a completely
  . . . devastating effect on judicial economy."  Id. at 8 n.1, 595 A.2d  at
  274 n.1 (quoting State v. Baldwin, 140 Vt. 501, 514, 438 A.2d 1135, 1142 
  (1981)).

       On appeal from the criminal proceeding, defendant does not argue that
  we should reach the  merits of the issue of whether there was a seizure
  and, if so, whether the seizure was justified.   Therefore, we do not reach
  the merits. 

       Affirmed in part and reversed in part.



                                       FOR THE COURT:


                                       ______________________________________         
                                       Associate Justice


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                                  Footnotes


FN1.  Accordingly, defendant's recently filed motion for summary reversal
  is granted.