State v. Keiser
Annotate this Case
State v. Keiser; 174 Vt. 87; 807 A.2d 378
[Filed 28-Jun-2002]
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. 2001-132
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Wolf Keiser November Term, 2001
Ben W. Joseph, J.
William H. Sorrell, Attorney General, and John Treadwell and David Tartter,
Assistant Attorneys General, Montpelier, for Plaintiff-Appellee.
Devin McLaughlin and Christopher Davis of Langrock Sperry & Wool,
Middlebury, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
MORSE, J. Defendant Wolf Keiser appeals the judgment of the district
court and its subsequent orders denying his motions for judgment of
acquittal and for a new trial following a jury verdict finding defendant
guilty of leaving the scene of an accident, fatality resulting, in
violation of 23 V.S.A. § 1128(c). On appeal, defendant contends: (1) the
trial court issued an erroneous instruction regarding constructive
knowledge in response to a jury question; (2) the trial court erroneously
declined to include defendant's requested additional instruction in
response to the jury question; (3) the trial court committed plain error by
failing to instruct the jury that Vermont's hit-and-run statute requires
actual knowledge that the accident involved a
person or property of another; (4) the jury verdict is not supported by the
evidence at trial; (5) the trial court improperly admitted evidence of
defendant's past DWI convictions; and (6) the trial court's sentence of ten
to fifteen years to serve violates the proportionality clause of the
Vermont Constitution and is an abuse of the court's discretion. We affirm.
In the early morning of September 12, 1999, while defendant was
driving back to his home from a friend's house, he heard and felt an impact
to the right side of his vehicle. His passenger's side windshield cracked
in a spider web formation, and, according to him, he stopped his car,
backed up, and got out to see what he had hit or what had hit him.
Defendant testified that he found nothing, and then traveled to his home,
retrieved a flashlight, and returned to the accident site to see if he had
hit anything. Again, he found nothing, and returned home.
Defendant's car had struck Joshua Welch, who was thrown to the side of
the road. The impact occurred between 12:00 and 1:00 a.m. The victim was
found at roughly 10:00 a.m. the next morning by two women who were on a
walk. He was taken to the hospital, where he died on September 13 from
multiple head injuries.
The state charged defendant with leaving the scene of the accident,
fatality resulting. See 23 V.S.A. § 1128(c). At the close of evidence the
court gave instructions to the jury on the elements of the charged crime.
During deliberations the jury returned the following question regarding the
court's instruction on one of the knowledge elements of the crime: "Did
Wolf have to know he hit a person or did he have to think or suspect he hit
a person . . . according to the law?" (Emphasis in original.)
After discussion with counsel, the court issued the following reply:
The State does not have to prove that the defendant had actual
knowledge that a person had been injured. The State can meet its
burden of proof with regard to the element of knowledge of the
resultant injury if it proves that, after conducting a reasonable
investigation, a reasonable person would have anticipated injury
to another person. This is what is called "constructive
knowledge" that I described to you in the Jury Instructions.
In so doing, the trial court declined to issue defendant's requested
instruction informing the jury that it could not find defendant guilty if
it determined that defendant merely thought or suspected that he hit a
person. The jury returned a guilty verdict on February 12, 2001.
Defendant was sentenced to ten to fifteen years. He now appeals. We
address his arguments in turn.
I.
Defendant's main contention centers on whether the above instruction
was an erroneous response to the jury's inquiry. Defendant first argues
that the court misconstrued the duties of 23 V.S.A.§ 1128(a), by including
a reasonable investigation requirement in its constructive knowledge
instruction. The language "after conducting a reasonable investigation,"
defendant argues, created an affirmative duty to stop and investigate an
accident regardless of whether a person has actual or constructive
knowledge of injury to either the person or property of another. The State
argues not only that the supplemental instruction was within the letter of
the law, but also that defendant did not preserve his right to appeal on
this issue because he did not object after the instruction was given to the
jury.
A.
As a threshold matter, therefore, we must determine whether defendant
properly preserved this issue for appeal. The State correctly argues that,
in general, objecting before instructions are issued to the jury is
insufficient to preserve the issue for appeal; counsel must
object after they are given to the jury. See State v. Wheelock, 158 Vt.
302, 306, 609 A.2d 972, 975 (1992) ("According to V.R.Cr.P. 30, as
interpreted in our cases, failure to object to an instruction after it is
given to the jury is considered a waiver of any error even if the substance
of the objection is made known before the jury charge."); see also State v.
Tahair, 172 Vt. 101, 104-05, 772 A.2d 1079, 1082 (2001). This case,
however, involves a supplemental instruction issued to the jury in response
to a jury question given to the court during deliberations. The context
differs from the circumstances at the conclusion of the initial charge to
the jury, at which point counsel's obligation to object is well defined,
see Wheelock, 158 Vt. at 306, 609 A.2d at 975. We have yet to address the
question of whether counsel must renew an objection after a supplemental
instruction. Cf. Reporter's Notes, V.R.Cr.P. 30 (noting that rule does not
apply to "such further instructions as the jury may require after it has
retired").
Questions from a jury during its deliberations should be disclosed to
counsel and counsel given an opportunity to be heard before the trial judge
responds. Rogers v. United States, 422 U.S. 35, 39 (1975); United States
v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981). A party's objections to the
Court's response to a jury question must be stated with specificity. See
State v. Covino, 163 Vt. 378, 380-81, 658 A.2d 916, 918 (1994).
The primary purpose of requiring a timely and specific objection is to
give the trial court the opportunity to avoid or correct an error. See
Wheelock, 158 Vt. at 306, 609 A.2d at 975. In the supplementary context,
when objections are specifically stated, this concern is adequately
addressed by objecting before the court addresses the jury. If the parties
have been given an opportunity to review the proposed instruction and to
argue their objections, the trial court has been afforded adequate
opportunity to respond to any alleged error. To require counsel to again
object after a single supplemental instruction in order to preserve the
issue is ordinarily unnecessary given the narrow scope of the instructions.
A review of the record in this case shows that the court did give both
parties notice of the jury's question and an opportunity to participate
meaningfully in the court's response. During the colloquy, after the court
distributed the proposed instruction, defendant did object to the
reasonable investigation language. ("And just so the record is clear, we
object to the insertion of a reasonable investigation requirement. We
don't think it is required under the law of Sidway.") Prior to the defense
counsel's formal objection, there had been a lengthy dialogue with the
court in reference to the constructive knowledge supplemental instruction
and specifically the requirement of the reasonable investigation. State v.
Sidway, 139 Vt. 480, 431 A.2d 1237 (1981), was identified by both parties
and the court as the case on point. There was a noted disagreement between
defendant and the court as to whether this Court in Sidway found a duty to
conduct a reasonable investigation after an accident, independent of the
driver's knowledge of injury to another person or property. After going
back and forth on the topic, the court made it clear that the supplemental
instruction's language "after conducting a reasonable investigation" was
proper. Because of this dialogue and the clearly noted objection given by
defendant's counsel, we find the issue was properly preserved for appeal.
B.
We now turn to whether the trial court's supplemental instruction on
constructive knowledge was an erroneous response to the jury's inquiry.
Defendant asserts that the lower court confused the jury with its answer to
their question on the issue of constructive knowledge
by conflating a defendant's duties once knowledge of an accident and injury
are established with the inquiry of whether knowledge has in fact been
established.
Title 23, section 1128 provides in relevant part:
The operator of a motor vehicle who has caused or is involved in
an accident resulting in injury to any person other than the
operator, or in damage to any property other than the vehicle then
under his or her control shall immediately stop and render any
assistance reasonably necessary. The operator shall give his or
her name, residence, license number and the name of the owner of
the motor vehicle to any person who is injured or whose property
is damaged and to any enforcement officer.
Vermont's "hit-and-run" statute, as pointed out in Sidway, is to prohibit
drivers of motor vehicles from seeking to evade civil or criminal
liability, and from leaving persons injured, abandoned and in need of first
aid or medical care. Sidway, 139 Vt. at 484, 431 A.2d at 1239; see also
State v. Severance, 120 Vt. 268, 272-73, 138 A.2d 425, 428 (1958). The
statute imposes a duty on operators to take affirmative action by stopping
to give aid and information. Sidway, 139 Vt. at 484, 431 A.2d at 1239;
Severance, 120 Vt. at 273, 138 A.2d at 428.
Title 23, section 128 is silent on the issue of knowledge. Id.
Notably, several states in such circumstances have concluded that actual
knowledge of the accident alone is sufficient to impose criminal liability
for failing to stop and render aid. See, e.g., Goss v. State, 582 S.W.2d 782, 785 (Tex. Crim. App. 1979); State v. Vela, 673 P.2d 185, 188 (Wash.
1983); see also Annotation, Necessity and Sufficiency of Showing, In
Criminal Prosecution Under "Hit-and-Run" Statute, Accused's Knowledge of
Accident, Injury, or Damage, 26 A.L.R. 5th 1, 28-32 (1995). In Sidway, we
similarly determined that, because the statute imposes affirmative duties
on an individual, some level of knowledge is required before criminal
liability can be imposed. Sidway, 139 Vt. at 484, 431 A.2d at 1239. We
concluded that, at minimum, actual knowledge of
the accident was required. Id. We went further, though, and concluded
that some level of knowledge with respect to resulting injury or property
damage must also be shown to impose liability, but stopped short of
requiring actual knowledge of that. Id. at 486, 431 A.2d at ___. We
determined that constructive knowledge was sufficient. Id.
Inherent in the concept of constructive knowledge is what an objective
examination of the facts would reveal to a reasonable person. See Black's
Law Dictionary 876 (7th ed. 1999) ("Knowledge that one using reasonable
care or diligence should have, and therefore that is attributed by law.").
In other words, rather than requiring a jury to infer actual knowledge on
the part of the defendant from circumstantial evidence, we stated in Sidway
that a defendant could be "imputed" with knowledge that a reasonable person
would have gathered from the circumstances of the accident or impact, i.e.,
what a reasonable evaluation of the circumstances would reveal. Sidway,
139 Vt. at 485-86, 431 A.2d at 1239-40 (noting "[i]t is not necessary to
show, by direct or circumstantial evidence, that the defendant had actual
knowledge of any resultant injury or damage"). Thus, the trial court's
instruction on constructive knowledge, allowing the jury to impute to
defendant knowledge that a reasonable investigation of the circumstances of
the accident would reveal, was consistent with the spirit and doctrine of
our decision in Sidway, and did not constitute reversible error. See State
v. Williams, 154 Vt. 76, 81, 574 A.2d 1264, 1267 (1990) (we review
substance of jury instructions to determine if the challenged instruction
captures the "true spirit and doctrine of the law" to ensure that the jury
has not been misled or confused).
Defendant asserts, however, that the instructions allow for a
defendant to be held criminally liable simply for failing to adequately
investigate an impact. But that is precisely what
Sidway contemplated by allowing the State to meet its burden by showing
constructive knowledge. In other words, if a defendant actually knows he
was involved in an accident, and an examination of the circumstances of the
accident would lead a reasonable person to conclude that a person or
property had been injured, imposing criminal liability for a failure to
render aid is not unreasonable. Defendant argues that juries should
instead be allowed to consider only the impact itself when determining
whether knowledge of injury should be imputed. Adopting defendant's
position, however, would limit jurors to considering only that information
an individual who was in an accident, but failed to stop, would have
available. This would discourage individuals from stopping to investigate
an impact, for they might acquire actual knowledge placing them in a poorer
position than the defendant who kept going. This is precisely contrary to
the desired effect of encouraging motorists to stop after an accident.
C.
Defendant makes the related argument that the court erred by failing
to affirmatively instruct the jury that it could not find defendant guilty
if it found that he merely thought or suspected that he had hit (and thus
injured) a person.
The jury's question specifically referenced the trial court's
instruction on constructive knowledge issued prior to deliberation, and
noted that it was concerned with the alternative to finding that defendant
possessed actual knowledge. The original instruction was as follows:
The law requires not only knowledge of an accident, but also
knowledge of resultant injury to another person. Knowledge of the
resultant injury may be proven by direct and/or circumstantial
evidence. . . . In this case, with this charge, the State can also
prove this element of the offense by showing that the defendant
had constructive knowledge that another person was injured. It
is not necessary to show by direct or circumstantial evidence that
the defendant had actual knowledge that another person was
injured.
If an impact occurs under such circumstances that a reasonable
driver would anticipate injury to another person, then you may
decide that the driver knew of the injury because, under the
circumstances, he should have known that another person had been
injured.
Constructive knowledge being an objective inquiry, defendant's
subjective state of mind was not relevant to the inquiry. In fact, because
Sidway allows the State to meet its burden with a showing of constructive
knowledge, a jury could find defendant guilty even if it determined that
defendant merely suspected that he hit and injured a person if it also
found that a reasonable person would have known he had injured a person
under the circumstances. Thus, the trial court's failure to issue
defendant's requested instruction in response to the jury's question
regarding constructive knowledge was not an abuse of discretion. See State
v. West, 151 Vt. 140, 142-43, 557 A.2d 873, 875 (1988) (we review the trial
court's decision to issue a supplemental jury instruction for abuse of
discretion).
II.
Defendant next advocates that this Court interpret 23 V.S.A. § 1128 to
include a third knowledge requirement. More specifically, he argues that
the statute should be read to require actual knowledge that an accident
involved a person or property of another, separate and distinct from the
element of knowledge regarding injury to such. Defendant concedes that he
is raising this issue for the first time on appeal and, therefore, this
Court should review the trial court's failure to include an instruction on
such an element only for plain error. See Tahair, 172 Vt. at 1086, 772 A.2d at 1086 (noting that plain error exists "only in exceptional
circumstances where a failure to recognize error would result in a
miscarriage of justice, or where there is a glaring error
so grave and serious that it strikes at the very heart of the defendant's
constitutional rights") (internal quotation marks and citation omitted).
Under defendant's theory, a jury would first have to decide whether a
defendant had actual knowledge of an accident or impact. Then it would
have to decide whether the individual had actual knowledge that the impact
involved person or property of another. Lastly, it would have to decide
whether a defendant had actual or constructive knowledge of injury to that
person or property before it could find a defendant guilty for failing to
stop and render aid. We cannot say that the trial court's failure to
instruct the jury accordingly constituted plain error based in part on the
fact that the statute itself is completely silent on a knowledge
requirement. Furthermore, there is no case from this Court interpreting
the statute in this way. As noted above, some courts confronted with
hit-and-run statutes lacking a knowledge requirement have merely required
knowledge of the collision before imposing criminal liability. And
defendant points to no state that separates its knowledge requirement into
the three separate inquiries described above. See also Annotation, supra.
In light of this, we can hardly fault the trial court for failing to
discern a knowledge requirement on three separate elements, as opposed to
the two this Court identified in Sidway.
Additionally, implicit in the inquiry regarding knowledge of injury
outlined in Sidway is a determination that the resultant injury was to
person or property of another. Thus, were we to adopt defendant's reading
of the statute, we would have to overrule Sidway to the extent that it
allows a jury to impute knowledge to a defendant that the injury involved
person or property of another.
III.
Defendant also argues that he was entitled to judgment of acquittal as
the evidence does not support the jury's verdict of guilty. We disagree.
We will affirm a conviction if, looking at the evidence in the light
most favorable to the State and excluding modifying evidence, the State has
produced evidence that fairly and reasonably supports a finding of guilty
beyond a reasonable doubt. State v. White, ___ Vt. ___, ___, 782 A.2d 1187, 1190 (2001). "A judgment of acquittal is proper 'only if the
prosecution has failed to put forth any evidence to substantiate a jury
verdict.' " Id., 782 A.2d at 1191 (quoting State v. Couture, 169 Vt. 222,
226, 734 A.2d 524, 527 (1999)). Viewing the evidence in the light most
favorable to the State in this case fairly and reasonably supports a
verdict of guilty.
Defendant does not dispute that he had actual knowledge of the impact,
that his car did in fact hit the victim, or that he did not render aid to
the victim. He does dispute, however, whether the State sufficiently met
its burden on the issue of his knowledge, actual or constructive, of
injury. The State introduced the following evidence tending to show
knowledge on the part of defendant with respect to the impact causing
injury to a person: Defendant's windshield was smashed and the post on the
passenger side of his vehicle was dented by the impact. Defendant's right
front fender was also dented. The two women who found the victim the
following day testified that, at least in daylight, the victim was clearly
visible from the road, and, although his head was leaning down the
embankment on the side of the road, the rest of his body was on the flat
grassy area beside the traveled portion of the road. One of the officers
responding to the scene the following day said he could hear the victim
making gurgling noises as he approached, caused by his partially blocked
air passage. He also testified that the victim was in an open area
which was not overgrown with brush, and he could see the victim's entire
body from the roadway. A man who lived in the vicinity of the accident
testified to being woken up that night by screeching tires and a loud
noise. He then heard someone yell "Hey!" When he went to the window, he
saw someone get out of a stopped car with its hazard lights on, walk to the
edge of the road, look left, right and over the bank, and then return to
his car and drive away.
After seeing a news report the Monday morning after the accident in
which it was reported that someone had witnessed the accident, defendant
reported to the police. The two officers on duty at the station spoke to
defendant first. While one retrieved a glass of water during the
interview, defendant made an unsolicited statement to the attending officer
that the victim had been walking on the wrong side of the road. Defendant
admits to making this statement. A detective on the case testified that,
at the time, only one other individual who had passed the victim earlier in
the night knew which way the victim was walking, and that he was walking
with traffic, as opposed to against it. In a tape-recorded interview with
one of the detectives working on the case, defendant said he thought he
might have hit a person, but he did not call the police because he was
fearful that it would change his life "legally." Defendant also admitted
to drinking that evening, stating that he had roughly six beers in the
course of the night, but had felt good enough to drive. He stated that he
merely felt "a little buzz." At the conclusion of the interview the
detective asked defendant if he had not called the police because he
thought alcohol was an issue and he did not want to get a DWI. Defendant
answered "yes." He also asked defendant if he realized or thought "deep
down" that he hit a person and that is why he had called out after the
impact, and he said "yes." Lastly, at trial, defendant offered a
conflicting story regarding the events of that evening.
Viewed in the light most favorable to the State, this evidence fairly
and reasonably supports a jury determination that defendant possessed
either actual or constructive knowledge of injury to a person and therefore
does not leave the finding of guilt uncertain or dependent on mere
conjecture. See State v. Brooks, 163 Vt. 245, 255, 658 A.2d 22, 29 (1995)
(evidence that leaves guilt uncertain or resting on mere conjecture is
insufficient). Thus, we will not disturb the jury's verdict in this case.
IV.
Defendant next argues that the trial court erroneously admitted
evidence of his two prior convictions for driving while intoxicated. The
State contends that defendant has waived his claim of error on appeal by
introducing evidence of the prior convictions himself, relying on Ohler v.
United States, 529 U.S. 753 (2000).
A.
This, too, presents a threshold question for this Court - whether
defendant has waived his objection by introducing evidence of two prior DWI
convictions himself pursuant to the trial court's in limine ruling on the
matter. We conclude that, under the facts of this case, there has been no
waiver.
Prior to trial in this case, the State gave notice to defendant of its
intent to utilize his two prior DWI convictions pursuant to V.R.E. 404(b).
The State asserted that evidence of defendant's prior bad acts was
admissible to show defendant's motive to leave the scene of the accident.
Defendant filed a motion in limine to bar the use of the prior DWI
convictions. After hearing oral argument on the matter, the trial court
issued a written order excluding evidence of the convictions from the
State's case-in-chief under V.R.E. 403, reasoning that, although relevant
to the issue of motive, the evidence was cumulative of statements defendant
made to the police after the accident, admitting that he was worried about
a DWI charge. Prior to trial, however, the trial court emphasized that its
ruling extended only to the case-in-chief. The trial court indicated that
if defendant took the stand and testified to an alternate reason for why he
left the scene of the accident, the convictions could then come in.
Defendant noted his continuing objection to any use of the prior
convictions. Following the court's clarification, however, defendant
elected to bring in the convictions himself on direct examination, given
that he had decided to testify to leaving the area because he could not
find what he had hit.
The United States Supreme Court has recently confronted the same issue
in a slightly different, but analogous, context to resolve a conflict among
the circuits. In Ohler v. United States, the government sought to use a
defendant's prior felony conviction as impeachment evidence under Fed. R.
Evid. 609(a)(1). Ohler, 529 U.S. at 755. The trial court ruled in limine
that the evidence could come in if the defendant took the stand. Id.
Defendant elected to take the stand and admitted to the conviction on
direct examination. Id. The Supreme Court, in a five-to-four decision,
concluded that in so doing, the defendant had waived her objection to the
trial court's ruling. Id. at 760. The majority explained that it was
extending its prior holding in Luce v. United States, 469 U.S. 38, 43
(1984), where it held that a defendant could not challenge a trial court's
in limine ruling on the admissibility of impeachment evidence if the
defendant chose not to take the stand. Ohler, 529 U.S. at 759. We have
come to a similar conclusion as that reached in Luce, holding in the Rule
404(b) context that, where a defendant chooses not to elicit evidence that
a trial court has ruled would open the door to prior bad act evidence, that
individual has not preserved the issue of admissibility of that evidence
for appellate review. State v. Koveos, 169
Vt. 62, 70, 732 A.2d 722, 728 (1999). Unlike the Supreme Court, however,
we decline to extend the rule in Koveos to circumstances such as these.
As the dissenting justices in Ohler point out, the rationale in cases
such as Luce and Koveos - that a strategic choice by defendant that
prevents the introduction of the contested evidence prevents the creation
of an adequate record for review, Luce, 469 U.S. at 41-42; Koveos, 169 Vt.
at 70-71, 732 A.2d at 728 - does not apply to situations such as those
presented by this case. Ohler, 529 U.S. at 760-61 (Souter, J., dissenting,
with whom Stevens, J., Ginsburg, J., and Breyer, J. joined). Here, the
trial court made a clear ruling, the evidence was admitted pursuant to that
ruling, and the effect of the admission may be examined for harmless error.
Without recounting at length the other reasons and authority cited by the
dissent in Ohler for not finding waiver in circumstances such as these, we
adopt its reasoning in concluding that defendant did not waive his
objection to the admission of his prior DWI's when he testified to them on
direct examination rather than waiting for the State to elicit them.
B.
Although defendant adequately preserved his objection to the trial
court's ruling, we nevertheless conclude that the ruling did not constitute
reversible error.
Defendant argues that the trial court erroneously concluded under
V.R.E. 403 that, while the danger of unfair prejudice flowing from the
prior DWI convictions outweighed their probative value in the State's
case-in-chief, the probative value of the prior DWI convictions as rebuttal
evidence outweighed the danger of unfair prejudice. We review such
decisions for an abuse of discretion. See State v. Gundlah, 166 Vt. 518,
526, 702 A.2d 52, 56 (1997).
Here, the balance struck by the trial court was within the bounds of
discretion. As noted by the court, the DWI evidence was cumulative of
other evidence introduced by the prosecution on the issue of motive, and,
if that evidence went unrebutted, the DWI evidence would primarily serve to
unfairly prejudice defendant. But once defendant testified that he left
the scene of the accident because he did not find any victim after looking
around, as opposed to because he feared a DWI charge, the prior convictions
assumed more probative weight in relation to their danger of unfair
prejudice.
V.
Defendant's last arguments concern his sentencing in this matter.
Defendant contends that the trial court's sentence violates the
proportionality clause of the Vermont Constitution and was an abuse of
discretion.
We note at the outset that defendant is not challenging the sentencing
range for leaving the scene of an accident with death resulting on its
face. Cf. State v. Venman, 151 Vt. 561, 571-72, 564 A.2d 574, 581 (1989)
(challenging maximum penalty of ten years for Medicaid fraud as
disproportional to the offense on its face, although defendant's actual
sentence totaled only thirty days). Rather, he is challenging his
individual sentence as disproportionate relative to sentences meted out
previously for the same crime. We have noted that such challenges are not
available under the federal constitution and that defendants are limited to
challenging a sentence for a particular offense relative only to sentences
for crimes of similar or greater culpability. State v. Bacon, 167 Vt. 88,
96-98, 702 A.2d 116, 122 (1997). In Bacon, we specifically reserved the
question of whether such challenges are nevertheless available under our
state constitution. Id. at 98, 702 A.2d at 123; cf. State v. Dove, 163 Vt.
429, 432, 658 A.2d 936, 938 (1995) (concluding
that defendant did not provide enough information for this Court to analyze
his claim under the Vermont Constitution that his sentence was not
proportional to those imposed for the same crime). We need not decide that
matter today, however, because even assuming that defendant may bring such
a claim under Chapter II, § 39, we cannot say that his sentence is grossly
disproportionate to those imposed on others for the same crime.
Defendant provided to this Court, and the trial court, sentencing
statistics on LSA, death resulting, spanning a roughly eleven-year period.
Our analysis is nevertheless somewhat hampered by the lack of information
on the facts giving rise to the previous sentences. Defendant concedes as
much. Looking at the numbers only, however, reveals that, while
defendant's minimum is six years greater than the next highest minimum
sentence imposed, his maximum sentence is only three years greater than the
next highest maximum. Defendant's to-serve sentence is also five years
less than the maximum penalty established by the Legislature for this
offense. And as noted, defendant does not challenge the maximum sentence
as disproportionate to the general offense itself. Thus, we will not
reverse defendant's sentence as grossly disproportionate.
Defendant also argues that the trial court abused its discretion in
its sentencing in this case. As we have repeatedly stressed, trial courts
have broad discretion in sentencing matters. State v. Bushey, 147 Vt. 140,
148, 513 A.2d 1177, 1182 (1986); State v. Neale, 145 Vt. 423, 435, 491 A.2d 1025, 1033 (1985); see also Bacon, 167 Vt. at 96, 702 A.2d at 121
("Sentencing in Vermont is individualized, with broad discretion afforded
the trial court in fashioning an appropriate sentence. . . . The focus is
properly on the defendant and the offense committed, not the
characteristics and behavior of unrelated offenders."). In sentencing
defendant, the trial court
relied on its conclusions that defendant had actual knowledge that he had
hit a person on the night in question; that, judging from the damage to
defendant's car, it was clear to defendant the nature and extent of the
accident; and that defendant nevertheless chose his own self-interest of
avoiding a potential DWI charge over helping the individual. As a result,
the victim lay on the side of the road for roughly ten hours suffering
without medical attention. Furthermore, defendant did not come forward to
the police until he heard on the news that there had been a witness to the
accident, and came roughly thirty-six hours after the accident. We discern
no abuse of discretion warranting reversal.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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