State v. Simoneau (2001-007); 176 Vt. 15; 833 A.2d 1280
2003 VT 83
[Motion to Alter or Amend Denied 6-Oct-2003]
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
2003 VT 83
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Patrick Simoneau September Term, 2002
Michael S. Kupersmith, J.
Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee State
William H. Sorrell, Attorney General, and John Treadwell, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee Vermont Criminal
Justice Training Council.
Mark E. Furlan of Abatiell Associates, P.C., Rutland, for
Kevin J. Coyle and Joseph A. Farnham of McNeil, Leddy & Sheahan,
Burlington, for Intervenor-Appellee Burlington Police Department.
Aileen L. Lachs of Mickenberg, Dunn, Kochman, Lachs & Smith,
Burlington, for Intervenor-Appellee Burlington Police Officers'
PRESENT: Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund
¶ 1. DOOLEY, J. In this consolidated appeal, defendant Patrick
Simoneau challenges the civil suspension of his motor vehicle license and
the judgment entered on his conditional guilty plea to driving under the
influence, fourth offense. The parties reserved the following issues for
appeal: (1) did the trial court err in denying the initial defense motion
to suppress and dismiss for lack of probable cause; (2) did the trial
court err in denying defendant's motion to reopen his motion to suppress
and dismiss based upon newly discovered evidence; and (3) did the trial
court err in denying the defense access to training records of the charging
officer as part of discovery.(FN2) We affirm.
¶ 2. On September 10, 2000, defendant was arrested for suspicion
of driving under the influence. He was charged with driving under the
influence, fourth offense, and the State also initiated civil suspension
proceedings against him. After being arraigned, defendant moved to
suppress the evidence against him and to dismiss the civil suspension
proceedings, arguing that the officers lacked probable cause to arrest
him. The trial court held a combined criminal and civil hearing on these
motions on December 6, 2000.
¶ 3. At the hearing, Burlington Police Officer Daniel Merchand
testified that on September 10, 2000, he and Officer Timothy Ahonen were
sent to investigate an altercation at a Burlington residence. Upon
arriving, the officers spoke with Allen Bouchard who had a cut lip and was
intoxicated. Mr. Bouchard told Officer Merchand that he had been hanging
out and drinking with friends and had gotten into a scuffle with
"Patrick." While talking with Mr. Bouchard, Officer Merchand observed a
man wearing plaid shorts and a light colored shirt exit through the back
door of the residence. The officers were unable to locate "Patrick" and,
finding Mr. Bouchard uncooperative, they departed.
¶ 4. While walking to their patrol cars, the officers observed a
vehicle without its headlights on, backing into a parking space. Officer
Merchand saw the driver, who was wearing a light colored shirt and plaid
shorts, exit the vehicle and begin to walk unsteadily towards the residence
where the altercation had taken place. Officer Merchand yelled "Patrick,"
and the individual looked toward him. When defendant was less than
twenty-five feet from the back door of the apartment, Officer Ahonen
attempted to stop him from reentering the building. When defendant
resisted Officer Ahonen's actions, he was placed in handcuffs to allow the
officers to "figure out what was going on . . . ."
¶ 5. While defendant was detained, Officer Merchand observed his
watery, bloodshot eyes and detected a moderate odor of alcohol on his
breath. Officer Merchand then advised defendant that he was under arrest
for suspicion of driving under the influence.
¶ 6. Defense witness Kim Jarvis also testified at the hearing.
She stated that she lived at the residence where the altercation occurred
and had been present when the officers arrived. She observed the officers
handcuffing defendant and stated that she had seen defendant driving
shortly before his arrest.
¶ 7. At the close of the hearing, the court granted judgment for
the State in the civil proceeding and denied defendant's motion to
suppress. The court found that Officer Merchand had reasonable grounds to
believe that defendant was operating a motor vehicle under the influence of
intoxicating liquor and that his arrest was supported by probable cause.
The court based its conclusions on Officer Merchand's testimony and found
Ms. Jarvis's testimony consistent with Officer Merchand's observations.
The court made the following factual findings: (1) Mr. Bouchard indicated
to Officer Merchand that he had been drinking with defendant that night;
(2) Officer Merchand observed defendant back his vehicle into the parking
space; (3) Officer Merchand noticed defendant's "unsteady gait;" and (4)
Officer Merchand yelled at defendant and got a response, which helped
confirm his suspicion that this was indeed Patrick.
¶ 8. In January 2001, defendant filed notice that he was
appealing the civil suspension decision. He then retained new counsel.
In May 2001, defendant filed a "Renewed Motion to Suppress and Dismiss" in
the criminal proceeding, and asked the court to reconvene a hearing based
on new evidence. The new evidence consisted of testimony of Lisa Page, who
was present the night of the incident but did not testify at the original
suppression hearing; Allen Bouchard, who also did not testify at the
suppression hearing; Kim Jarvis; and Guy Paradee, Private Investigator.
The main thrust of the proffered testimony was that the officers could not
have seen defendant operate a vehicle. Defendant moved to reopen the
civil suspension proceeding on the same basis.
¶ 9. In May 2001, defendant served a subpoena on the Record
Keeper at the Vermont Criminal Justice Training Council (Council). The
Council runs the State Police Academy that Officer Merchand attended for
training at the start of his service as a police officer. The subpoena
requested that the Record Keeper attend a deposition and produce all
records regarding Officer Merchand, including reports related to his
training. The Council moved to quash the subpoena. In response,
defendant asserted that the records would show that Officer Merchand had
been dismissed from the Police Academy for lying and violation of the
rules, and defendant wanted to use this information to impeach Officer
Merchand when he testified.
¶ 10. In June 2001, after a hearing and in camera inspection of
the pertinent Council records, the court granted the Council's motion to
quash. The court rejected the State's assertion that the Vermont Access
to Public Records statute barred disclosure of the records, but concluded
that there was "no legitimate manner" in which defendant could use the
records at a hearing or at trial. The court noted that defendant was
seeking the Council's records for potential impeachment purposes, rather
than exculpatory use. The court concluded that the documents contained
information that was "collateral at best," and even assuming that the
court would allow such an inquiry at trial, defendant could not use the
records to impeach Officer Merchand under Rule 608(b) of the Vermont Rules
of Evidence. At the hearing, the court also received Officer Ahonen's
deposition testimony into evidence, without objection, and indicated that
it would consider this testimony as evidence when considering defendant's
motion to renew.
¶ 11. In July 2001, the court denied defendant's renewed motion
to suppress and dismiss and his motion to reopen the civil proceeding.
The court considered the deposition testimony of Officer Ahonen in
reaching its conclusion and used its order to explain in greater detail the
reasons supporting its initial denial of defendant's motion, including
setting out findings of fact.
¶ 12. In August 2001, defendant entered a conditional guilty
plea to driving under the influence, fourth offense, reserving four issues
for appeal. We granted his motion to consolidate his civil and criminal
appeals, and this appeal followed.
¶ 13. We first address defendant's claim that the trial court
erred in denying his initial motion to suppress. Defendant argues that
the court's essential findings of fact are not supported by the record and
therefore its conclusion that the officers were warranted in conducting an
investigatory stop is erroneous. Additionally, defendant maintains that
the officers' use of physical force transformed the investigatory stop
into an arrest for which the officers lacked probable cause.
¶ 14. Resolution of a motion to suppress involves a mixed
question of fact and law. We must accept the trial court's findings of
fact unless they are clearly erroneous. See State v. Lawrence, 2003 VT
68, ¶¶ 8-9, 14 Vt. L. Wk. 221 (mem.). The question of whether the facts as
found met the proper standard to justify a stop is one of law. Id. A
police officer is authorized to make an investigatory stop based on a
reasonable and articulable suspicion of criminal activity. See Terry v.
Ohio, 392 U.S. 1, 21 (1968); State v. Chapman, 173 Vt. 400, 402, 800 A.2d 446, 449 (2002). The officer must have more than an unparticularized
suspicion or hunch of criminal activity, but needs considerably less than
proof of wrongdoing by a preponderance of the evidence. See State v.
Welch, 162 Vt. 635, 636, 650 A.2d 516, 517 (1994) (mem.); State v. Kindle,
170 Vt. 296, 298, 751 A.2d 757, 758 (2000). An officer may briefly detain
a suspect to investigate the circumstances that provoke his suspicion as
long as the scope of the detention is reasonably related to the
justification for the stop and inquiry. Chapman, 173 Vt. at 402, 800 A.2d
¶ 15. Defendant attacks a number of the court's findings of fact
as unsupported by the evidence, particularly the findings that Mr.
Bouchard told Officer Merchand that defendant had been drinking with him
that night and that defendant's response to Officer Merchand's calling out
his name indicated that he was Patrick. We have reviewed Officer
Merchand's testimony and conclude that the court's findings are adequately
supported by that testimony and inferences legitimately drawn from that
¶ 16. The findings support the trial court's conclusion that
Officer Merchand had a reasonable and articulable suspicion that defendant
was driving under the influence. Officer Merchand testified that Mr.
Bouchard, who was clearly intoxicated, told him that he had been drinking
with friends, including "Patrick," and that he and Patrick had engaged in
a scuffle. Officer Merchand stated that he saw someone wearing a light
colored shirt and plaid shorts exit through the back door of the apartment
while he was interviewing Mr. Bouchard. Shortly thereafter, the officer
observed someone operating a car with its headlights off. Officer
Merchand observed the driver, who was wearing a light colored shirt and
plaid shorts, walking unsteadily toward the apartment where the altercation
had occurred. At this point, Officer Merchand called out "Patrick," and
defendant responded. These facts provide the basis for a reasonable and
articulable suspicion that defendant was driving under the influence.(FN3)
Therefore, the trial court correctly concluded that the officers' detention
of defendant was warranted.
¶ 17. Based on our conclusion, we need not address defendant's
argument that the officers were not justified in detaining him under the
community caretaking exception to the probable cause requirement. The
officers had a reasonable and articulable suspicion sufficient to warrant
an investigatory stop; they did not need probable cause.
¶ 18. Similarly, we reject defendant's argument that the use of
handcuffs transformed the investigatory stop into an arrest for which the
officers lacked probable cause. We have stated that whether a seizure is
an arrest or merely an investigatory detention depends on the
reasonableness of the intrusion under the totality of the circumstances.
Chapman, 173 Vt. at 403, 800 A.2d at 449. In assessing whether the degree
of restraint is too intrusive to be classified as an investigatory
detention, courts have considered a number of factors, including the
amount of force used by police, the need for such force, and the extent to
which the individual's freedom of movement was restrained. Id.
¶ 19. In this case, the officers' act of placing defendant in
handcuffs was reasonable under the circumstances. The officers observed
defendant driving without his headlights on and suspected that he had been
drinking. The officers also suspected that defendant, whom Officer
Merchand had observed leaving the residence earlier, had assaulted Mr.
Bouchard. The officers watched defendant walking towards the residence
where the altercation had occurred and where Mr. Bouchard was present.
Defendant did not stop when accosted by the officer. When Officer Ahonen
attempted to grab defendant's arm, defendant "pulled away from him." The
officers then detained defendant briefly to allow them to assess the
situation. The officers quickly gained probable cause and arrested
defendant for suspicion of driving under the influence. Under these
circumstances, the use of handcuffs did not transform the investigatory
stop into an arrest, and the trial court properly denied defendant's
initial motion to suppress.
¶ 20. Defendant next contends that the trial court erred in
denying him access to Officer Merchand's training records as part of
discovery. Specifically, defendant argues that the court's decision to
quash his subpoena compromised his ability to defend himself because he
could not effectively challenge Officer Merchand's credibility. Defendant
also maintains that the Access to Public Records Act, 1 V.S.A. §§ 315-320,
mandates disclosure of the records.
¶ 21. We review the trial court's decision to quash a subpoena
for abuse of discretion. See State v. Findlay, 171 Vt. 594, 595, 765 A.2d 483, 486 (2000) (mem.) ("The trial court's resolution of evidentiary
issues is discretionary, and we will not reverse them absent an abuse of
discretion"); United States v. Nixon, 418 U.S. 683, 702 (1974)
(enforcement of pretrial subpoena duces tecum committed to sound
discretion of trial court). To demonstrate an abuse of discretion,
defendant must show that the trial court either withheld its discretion or
exercised it on clearly unreasonable or untenable grounds. State v.
White, 172 Vt. 493, 500, 782 A.2d 1187, 1192 (2001). We " 'will not
interfere with discretionary rulings of the trial court that have a
reasonable basis, even if another court might have reached a different
conclusion,' nor will we interfere with the judgment of the trial court
simply because a different court might have reached a different
conclusion." Id. (citing State v. Parker, 149 Vt. 393, 401, 545 A.2d 512,
¶ 22. In his subpoena, defendant sought to compel the Council's
Record Keeper to attend a deposition and produce "all records regarding
Officer Daniel Merchand, including all reports related to his training."
In response to the State's motion to quash, defendant detailed what he
expected the records to contain, based on the report of an investigator
who interviewed employees of the Council. The trial court quashed the
subpoena after a hearing and after reviewing the requested documents,
concluding that there was "no legitimate manner" in which defendant could
use them at a hearing or at trial. As discussed below, although we cannot
uphold the trial court's decision based on its reasons for its action, we
affirm the decision on other grounds.
¶ 23. Rule 17 of the Vermont Rules of Criminal Procedure governs
the issuance of subpoenas in criminal cases. Rule 17(a) allows a party to
subpoena a witness "to attend and give testimony" at a designated time and
place. Rule 17(c) governs the production of documents, and it provides,
in relevant part:
A subpoena may also command the witness to whom it is
directed to produce the books, papers, documents or other
objects designated therein. The court on motion made
promptly may quash or modify the subpoena if compliance
would be unreasonable or oppressive. The court may direct
that books, papers, documents, or objects designated in the
subpoena be produced before the court at a time prior to the
trial or prior to the time when they are to be offered in to
evidence and may upon their production permit the books,
papers, documents, or objects or portions thereof to be
inspected by the parties and their attorneys.
¶ 24. The State - joined by the Council, the Burlington Police
Department and the Burlington Police Officers' Association - argues that
Rule 17(c) allows a subpoena to seek only admissible evidence, which
generally does not include information sought solely for impeachment
purposes. Their argument is based on the federal courts' interpretation of
F.R.Cr.P. 17(c), from which the Vermont rule is taken. See Bowman Dairy
Co. v. United States, 341 U.S. 214, 221 (1951); Nixon, 418 U.S. at 700
(moving party must satisfy three criteria to be entitled to pre-trial
production of documents: relevancy, admissibility, and specificity); id.
at 701 (need for evidence to impeach witnesses generally insufficient to
require its production in advance of trial); United States v. Cherry, 876 F. Supp. 547, 552-53 (S.D.N.Y. 1995) (same) (collecting cases).
¶ 25. The State argues that the information gained through the
subpoena could never be admissible because of the restriction in V.R.E.
608 on the use of extrinsic evidence to impeach a witness's credibility.
Although the rule does not define "extrinsic evidence," we have found it to
include documentary evidence offered during the cross-examination of a
witness whose character is being challenged. See, e.g., State v.
Washington, 164 Vt. 609, 611, 669 A.2d 550, 552 (1995) (mem.) (court
properly excluded photograph of murder trial witness with gun and drugs as
extrinsic evidence); State v. Leggett, 164 Vt. 599, 600, 664 A.2d 271, 272
(1995) (mem.) (police report in which rape victim claimed she was molested
by another man would not be admissible to impeach witness because it was
extrinsic evidence). Of course, evidence of specific instances of conduct
offered to attack a witness's credibility are not admissible through other
witnesses as a matter of law. See Russell Corp. v. Bohlig, 170 Vt. 12,
22, 739 A.2d 1212, 1220 (1999).(FN4)
¶ 26. As noted at the beginning of this opinion, the trial court
quashed the subpoena based on the State's argument. The court's
conclusion was as follows:
In this proceeding, evidence of the Officer's conduct at the
Police Academy would be collateral at best. Assuming, for
purposes of discussion, that the Court permits inquiry about
the same, the Defendant would not, under Rule 608(b), be
permitted to impeach the Officer's testimony by use of
Training Council records either through cross-examination of
the Officer or direct examination of another witness.
Although the trial court did not say so explicitly, it necessarily agreed
that the records could not be subpoenaed unless they were shown to be
admissible in evidence. We disagree with that rationale.
¶ 27. The weakness in the State's argument and the trial court's
decision is that they take federal law out of context and apply it to the
dissimilar Vermont discovery law. V.R.Cr.P. 17(c) is based on Rule 17(c)
of the Federal Rules of Criminal Procedure. Neither rule states that it
may be used only to obtain evidence shown to be admissible. Such a
limitation is logical for the federal courts, however, because the federal
rules allow only very limited criminal discovery and allow criminal
depositions only to preserve testimony. See F.R.Cr.P. 15(a) (court may
grant party's motion to depose prospective witness "to preserve testimony
for trial" where required by "exceptional circumstances and in the
interest of justice"). In establishing the admissibility requirement, the
United States Supreme Court stated: "Rule 17(c) was not intended to
provide an additional means of discovery." Bowman Dairy Co., 341 U.S. at
¶ 28. The limitation is not logical in Vermont. Unlike the
federal rules, Vermont rules allow parties broad authority to depose
witnesses in criminal cases for discovery purposes. See V.R.Cr.P. 15(a)
(defendant or State "may take the deposition of a witness subject to such
protective orders and deposition schedule as the court may impose"). The
use of the subpoena duces tecum for discovery purposes is explained in the
Reporter's Notes to Rule 17(c):
Rule 17(c) functions as a discovery device because it permits
the court to order production of materials for inspection at
a time prior to trial or hearing. A party seeking such
production may move specially for it or may simply make the
subpoena returnable prior to trial, leaving it to the
producing party to move to quash or modify the subpoena.
Production prior to trial or hearing is discretionary and
will be denied unless the party seeking it meets a burden of
showing the evidentiary character and relevance of the
material, its unavailability by other means, and its
necessity for his trial preparation.
Reporter's Notes, V.R.Cr.P. 17 (citing 1 Wright, Federal Practice and
Procedure, § 274 (1st ed. 1969)); see State v. Percy, 149 Vt. 623, 635-36,
548 A.2d 408, 414-15 (1988). The rule allows the trial judge to quash the
subpoena "if compliance would be unreasonable or oppressive." V.R.Cr.P.
17(c). The Reporter's Notes make clear that the production decision is
discretionary and that judges must consider whether a request is
reasonable and not oppressive.
¶ 29. The power to subpoena information used for trial
preparation, even if not itself admissible in the criminal case, is
consistent with the deposition rule, V.R.Cr.P. 15. As we explained in
State v. Barrows, 158 Vt. 445, 450, 614 A.2d 377, 380 (1992), Rule 15 "sets
forth procedures for the taking of depositions," but it "does not define
the limits of discovery." The Reporter's Notes, however, amplify the
intent behind the rule to grant as broad discovery rights as formerly
authorized by statute. See Reporter's Notes, V.R.Cr.P. 15 (The "test of
relevance should be construed as broadly as the former statute, so as not
to inhibit the discovery purpose of the rule."). As it existed at the
time, 13 V.S.A. § 6721 gave a defendant the right to take the deposition
of a witness on a showing that the "testimony may be material or relevant
on the trial or of assistance in the preparation of his defense . . . ."
1961, No. 147, § 1 as amended by 1965, No. 194, § 10. Undoubtedly, the
standard was quite broad. See State v. Mahoney, 122 Vt. 456, 459, 176 A.2d 747, 749 (1961).
¶ 30. We conclude that the records sought in this case fit
within those that would ordinarily be allowed by Rules 15 and 17(c).
Based on independent investigation, defendant alleged that the records
would show conduct adversely bearing on Officer Merchand's character for
truthfulness. The records would enable defense counsel to accurately
cross-examine Officer Merchand about the conduct. We cannot uphold the
decision to quash the subpoena based on the ground argued by the State and
intervenors. Although the decision to quash the subpoena was
discretionary, there is no indication that the trial court exercised its
¶ 31. Nevertheless, we affirm the decision of the trial judge to
quash the subpoena. The subpoena was inextricably intertwined with
defendant's motion to renew his motion to suppress. Defense counsel's
attack on the credibility of Officer Merchand related to his testimony
describing his justification for accosting and detaining defendant. The
court refused to allow defendant to reopen the civil suspension judgment
or renew the motion to suppress, a decision we uphold in the next section
of this opinion. The court reviewed the records defendant seeks and was
aware of them when it denied the motions to reopen and renew. Given the
court's rationale for denying the motions, it is clear that the
consideration of the records would not have changed the result.
¶ 32. We recognize that the State would be required to prove the
elements of the offense at trial, and one of those elements is the
operation of a vehicle. We also recognize that defendant particularly
challenges Officer Merchand's claim that he observed defendant operating
his vehicle shortly before he was detained. We note, however, that three
witnesses - the two investigating officers and a defense witness - gave
statements saying they observed defendant operating his vehicle.
Defendant has not suggested that he has any evidence to the contrary.
Denial of the minimal benefit he might obtain from cross-examining Officer
Merchand on his Police Academy record is harmless beyond a reasonable
¶ 33. Finally, the main rationale for the court's decision to
deny the motion to reopen was that the new evidence defendant sought to
present was not newly discovered. All the witnesses were known to
defendant from the beginning of the case, and defendant should have
conducted his investigation much earlier. The same rationale applies to
the subpoena and deposition for which it was issued. Discovery
depositions are to be completed within ninety days after arraignment,
unless the court sets a later date or unless the court orders otherwise
"for good cause shown." V.R.Cr.P. 15(a). Defendant was arraigned in
September 2000, and the court did not set a later date for the conclusion
of depositions. Defendant did not subpoena the Record Keeper to the
discovery deposition until May 2001. Defendant gave no justification for
his tardiness except that he had changed counsel and his new counsel had
hired a private investigator. To the extent defendant attempted to show
good cause, his justification was tied to his central position that
Officer Merchand was untruthful in his claim that he saw defendant operate
his vehicle, a position the trial court rejected.
¶ 34. For the above reasons, we conclude that the court's
decision to quash the subpoena was harmless and did not affect defendant's
substantial rights. See V.R.Cr.P. 52(a).
¶ 35. Finally, defendant contends that the court erred in
denying his motion to renew his initial motion to suppress and dismiss.
His motion to renew was based on newly discovered evidence that defendant
argued "made it readily apparent that there was serious question about the
truthfulness of the testimony of BPD Officer Merchand given the physical
layout of the alleged crime scene." In his motion, defendant summarized
the testimony of four witnesses, including Allen Bouchard, an accident
reconstruction expert who opined that the officers could not have seen
defendant operating his vehicle, and Kim Jarvis, who supplied additional
testimony to her earlier testimony at the civil suspension hearing.
¶ 36. In ruling on the motion, the trial court had the original
evidence presented at the hearing on December 6, 2000, the deposition of
Officer Ahonen and defendant's offer of proof of the "newly discovered"
witnesses. The trial court issued a written decision denying the motion
for the following reasons:
First, the evidence proffered by the Defendant is not
"newly discovered." The Defendant proposes to introduce
testimony from three lay witnesses, all of whom were present
at the scene of the alleged offense and all of whom were
known to the Defendant prior to the original hearing. One
of them, Kim Jarvis, in fact testified on behalf of the
Defendant. Defendant's fourth witness, who purports to have
expertise in crime scene reconstruction, could have been
retained prior to the original hearing and could have
testified at the same.
Second, even if the court permitted the Defendant's
additional witnesses to testify at a reconvened hearing, it
is very unlikely that the result would change. Both
officers testified that as they left the front of 406 South
Union Street, they walked back to their cruisers which were
parked on that street to the south of the premises. As they
did so, they observed a vehicle being backed into a parking
space on Bayside Street. The Defendant was identified at
hearing as the operator of the vehicle.
The "new" evidence proffered by the Defendant's
witnesses, individually and collectively, is that they doubt
that the officers could have seen what they claim they did.
In the best case scenario (from Defendant's perspective) the
fact finder would have to make a subjective judgment about
whose version to believe. In fact, the testimony of Kim
Jarvis presented on December 6 corroborates the officers'
versions and thereby provides reasonably objective evidence
of the accuracy of the same.
Both officers testified before they knew what Ms.
Jarvis' testimony would be. They both testified that they
saw the Defendant park his vehicle at the curb on Bayside
Street. Ms. Jarvis also testified that she saw him "back
his vehicle into that parking space." Without the Jarvis
testimony one could plausibly argue that the police made up a
story. But Ms. Jarvis corroborated the key police evidence.
If the police made up their stories, they must have been
terrific psychic guessers.
¶ 37. Defendant asserted in the trial court, and renews that
assertion here, that he was entitled to a new suppression hearing once he
demonstrated that he had new evidence prior to trial and, in any event,
his proffer raised a serious question as to the propriety of the original
ruling. We disagree that defendant relies upon the proper standards. The
trial court has broad discretion in deciding whether to reopen the
evidence in connection with a criminal pretrial motion and to reconsider
its pretrial order. See State v. Tongue, 170 Vt. 409, 414, 753 A.2d. 356,
359 (2000). The court is not required to reconsider its ruling whenever
new facts are presented; instead, it is "better practice for the court to
reconsider a pretrial ruling 'where serious grounds arise as to the
correctness of the . . . ruling.'" Id. (quoting State v. Bruno, 157 Vt.
6, 8, 595 A.2d 272, 274 (1991)). We have stated that trial court
reconsideration of pretrial suppression rulings should be the exception,
not the rule. Id. Like this case, Tongue involved a renewed motion to
suppress made in advance of trial and alleging new facts not presented in
the original motion.
¶ 38. The trial court's decision denying the renewed motion was
fully consistent with Tongue. The court analyzed whether serious grounds
had been raised that showed the incorrectness of the original decision and
concluded that serious grounds had not been raised given all the evidence.
Consistent with our holding that reconsideration of a motion to suppress
should be the exception in order to ensure judicial economy, the court
faulted defendant for failing to present the new evidence at the time of
the hearing on the original motion to suppress. We conclude that the court
acted within its discretion in denying the defendant's renewed motion to
FOR THE COURT:
FN1. Justice Morse sat for oral argument but did not participate in
FN2. The parties also reserved the following question for appeal: did the
trial court err in failing to reopen the civil suspension matter based on
fraud and newly discovered evidence? Appellant has not briefed this
question, however, and we treat it as abandoned and do not consider it.
FN3. In connection with defendant's motion to reopen and renewed motion to
suppress, the court received and considered a transcript of a deposition
of Officer Ahonen, the other officer on the scene. Defendant argues that
it would be improper for us to consider this deposition because it was not
before the district court when it initially ruled on the motion to
suppress. We have not relied upon the deposition in reaching our decision
on the motion to suppress.
FN4. We do not address whether if on cross-examination, Officer Merchand
denied all or part of the information contained in the Council record,
defendant could have had the record admitted as impeachment by
contradiction. Courts have held that impeachment by contradiction is not
governed by Rule 608. See 4 J. Weinstein & M. Berger, Weinstein's Federal
Evidence § 608.20[a] (2d ed. 2003). We note that cases decided prior
to the adoption of the Vermont Rules of Evidence prohibit the introduction
of extrinsic evidence to show that a witness's testimony was false if the
testimony related to a collateral matter. See State v. Teitle, 117 Vt.
190, 195, 90 A.2d 562, 566 (1952). In granting the motion to quash, the
trial court described the evidence subpoenaed as "collateral at best."