State v. Millette

State v. Millette (2001-156); 173 Vt. 596; 795 A.2d 1182

[Filed 15-Feb-2002]

[Motion for Reargument Denied 11-Mar-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-156

                             JANUARY TERM, 2002


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 1, Windsor Circuit
Chad A. Millette	               }
                                       }	DOCKET NO. 1473-11-98 Wrcr

                                                Trial Judge: Paul F. Hudson

             In the above-entitled cause, the Clerk will enter:


       The State appeals a Windsor District Court decision granting
  defendant's motion to dismiss charges  that he aided in the commission of a
  DUI, in violation of 23 V.S.A. § 1711.  The State argues that the trial 
  court erred in granting defendant's motion.  We affirm.

       On June 17, 1998, defendant Chad Millette drove his car from
  Bennington to Windham, Vermont  to visit a friend.  While at his friend's
  home, defendant, his friend, and a mutual friend, Alonzo Gilbert,   had
  several beers.  The men decided to go fishing in the late afternoon, in
  Chester, and defendant  consumed four or five more beers at the fishing
  hole.  Defendant and Gilbert drove to Londonderry to  purchase more beer
  and returned to their friend's home in Windham.  Not long after, defendant
  and  Gilbert left for Cactus Jacks, a bar and strip club in White River
  Junction.   

       Defendant and Gilbert watched "shows" and drank more beer at Cactus
  Jacks. At some point in the  late evening hours of June 17 or the early
  morning hours of June 18, 1998, defendant and Gilbert  prepared to leave
  Cactus Jacks.  There was heavy rain, and defendant suggested that they pull
  the car  behind the club and sleep.  Gilbert removed defendant's keys from
  defendant's pocket and responded that  he would drive defendant home. 
  Defendant and Gilbert got into the car, and Gilbert drove South on 
  Interstate 91.  Once on the road, defendant fell asleep, waking up to
  Gilbert's request that he help Gilbert  stay awake.  Defendant's car rolled
  over onto the side of the interstate, killing Gilbert.  Defendant asserts 
  that the next thing he could recall is waking up at a hospital.      

       Defendant was charged on five counts, which as later amended, include:
  (1) DUI, death resulting,  in violation of 23 V.S.A. § 1201(a)(2); (2) DUI,
  third offense, both as the principal, in violation of 23  V.S.A. §
  1201(a)(2), and as an accessory, in violation of 23 V.S.A. § 1711; (3)
  driving when his license  had been suspended for DUI in Windsor County, in
  violation of 23 V.S.A. § 674(b); (4) driving when his  license had been
  suspended for DUI from Bennington to Windham, in violation of 23 V.S.A. §
  674(b);  and (5) driving when his license had been suspended for DUI from
  Windham to Chester, in violation of  23 V.S.A. § 674(b).  Defendant moved
  to dismiss the second count for lack of a prima facie 

 

  case, pursuant to V.R.Cr.P. 12(d).  The trial court granted defendant's
  motion, and dismissed the charge of  violating 23 V.S.A. § 1711, aiding in
  the commission of a DUI, and ordered the State to amend the  second count
  accordingly.  The State now appeals that determination.  

       The State argues, on appeal, that the trial court erred in granting
  the Rule 12(d) motion because: (1)  the State's evidence was sufficient to
  establish, beyond a reasonable doubt, that defendant had committed  the
  offense; (2) the trial court, in its opinion and order, found insufficient
  evidence on the  charge of  aiding in a DUI death resulting, when in fact,
  the charge was aiding in a DUI.  In reviewing a motion to  dismiss for lack
  of prima facie case under Rule 12(d), we look to whether the evidence,
  taken in the light  most favorable to the State, excluding modifying
  evidence, would fairly and reasonably tend to show  defendant committed the
  offense, beyond a reasonable doubt.  State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999); V.R.Cr.P. 12(d)(2). 

       Defendant is charged with aiding in the commission of a DUI in
  violation of 23 V.S.A. § 1711.   Section 1711 provides that one "who,
  whether present or absent, aids, abets, induces, procures or causes  the
  commission of an act which, if done directly by him or her, would be a
  felony or a misdemeanor  under a provision of this title [motor vehicle
  offense], is guilty of the same felony or misdemeanor."  The 
  interpretation of this statute is one of first impression for the Court. 
  We are guided by our overriding  objective in interpreting a statute - to
  effectuate the intent of the Legislature.  Dixon, 169 Vt. at 17, 725 A.2d 
  at 922.  We look first to the plain, ordinary meaning of the statutory
  language.  Id.  

       The language of 23 V.S.A. § 1711 establishes criminal liability for
  one who, "aids, abets, induces,  procures or causes" the commission of a
  motor vehicle felony or misdemeanor, creating accomplice  liability for
  these acts.  Both parties draw from the Court's interpretation of 13 V.S.A.
  § 3, which provides  that "[a] person who aids in the commission of a
  felony shall be punished as a principal."  In fact, both  provisions
  provide accomplice liability with common language, i.e. where a defendant
  "aids" in the  commission of a crime.  Where the Legislature felt it
  appropriate to use common language to create  accomplice liability in each
  of these provisions, we see no reason to interpret that language
  differently in  each instance.  Furthermore, the State fails to point out,
  and we see no language in the statute that would  create a broader
  definition of accomplice liability.

       We reiterated Vermont's general rule on accomplice liability in State
  v. Bacon, 163 Vt. 279, 288,  658 A.2d 54, 61 (1995): "where several persons
  combine under a common understanding and with a  common purpose to do an
  illegal act, every one is criminally responsible for the acts of each and
  all who  participate with him in the execution of the unlawful design."
  (internal quotations omitted).  Participation,  however, is more than mere
  passive acquiescence - the intent of accomplice liability is not to convict 
  those defendants who never intended their co-felon to commit the offense. 
  Id. at 290, 658 A.2d  at 62.  

       The law of this case is predicated on the facts.  We accept the
  State's theory that a person who aids  in the commission of the offense of
  driving a motor vehicle while under the influence of alcohol may be  held
  criminally liable for the acts of the principal.  Indeed, the language of
  23 V.S.A. § 1711 evinces an  unmistakable legislative intent to do just
  that.  State v. Stratton, 591 A.2d 246, 247 (Me. 1991) (plain  language of
  statute with common sense of situation dictates affirmative answer to
  question of whether  person may be criminally liable for aiding in offense
  of DUI).  The State argues that defendant's act of  exiting the bar, aware
  that he and his friend had consumed too much alcohol to drive safely,
  coupled with 

 

  "allowing" his friend to take the keys from defendant's pocket constituted
  a common plan sufficient to  permit the conviction of defendant as an
  accomplice, notwithstanding that defendant attempted to  persuade Gilbert
  that they should sleep in the car rather than drive home, and that Gilbert
  took the keys  from defendant's pocket.  Every case cited by the State
  contains facts that establish more active  participation by the defendant
  than the State can prove here.  See, e.g., Story v. United States, 16 F.2d 342, 344 (D.C. Cir. 1926) (owner of and passenger in vehicle convicted as
  an accomplice where  passenger asked defendant for and was given permission
  to drive);  State v. Satern, 516 N.W.2d 839, 840  (Iowa 1994) (owner of and
  passenger in vehicle convicted as an accomplice where he "turned over" the 
  driving to another); Stratton, 591 A.2d  at 248 (owner of and passenger in
  vehicle convicted as an  accomplice where he asked his employee to drive
  because employee was "soberer"); State v. Lemacks,  996 S.W.2d 166, 172
  (Tenn. 1999) (owner of and passenger in vehicle convicted as an accomplice
  where  evidence uncertain if he was driving, but where in any event, he
  gave keys to co-defendant ); Williams v.  State, 352 S.W.2d 230, 230 (Tenn.
  1961) (owner of and passenger in vehicle convicted as an accomplice  where
  he had no valid licence and had friend drive).     

       The State also argues that the trial court erred in its opinion and
  order, finding insufficient evidence  on the charge of aiding in a DUI,
  death resulting, when in fact, defendant was charged with aiding in a  DUI. 
  Because we find that there was insufficient evidence to establish beyond a
  reasonable doubt that  defendant aided in the commission of a DUI, the
  trial court's error in referring to "DUI, death resulting" is  harmless. 

       Affirmed.



                                       BY THE COURT:

                                      _______________________________________
                                      Jeffrey L. Amestoy, Chief Justice

                                      _______________________________________
                                      John A. Dooley, Associate Justice

                                      _______________________________________
                                      James L. Morse, Associate Justice

                                      _______________________________________
                                      Denise R. Johnson, Associate Justice

                                      _______________________________________
                                      Marilyn S. Skoglund, Associate Justice