State v. Simoneau

Annotate this Case
State v. Simoneau  (2001-007); 176 Vt. 15; 833 A.2d 1280

2003 VT 83

[Filed 29-Aug-2003]
[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
  to press.


                                 2003 VT 83

                                No. 2001-007

  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
  of Vermont.

       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
  Defendant-Appellant.

       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'
  Association.


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 
  at 449.

       ¶   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 
  testimony.

       ¶   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,
  517 (1988)).

       ¶   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
  220.

       ¶   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
  discretion.

       ¶   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
  doubt.

       ¶   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
  suppress.

       Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

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                                  Footnotes



FN1.  Justice Morse sat for oral argument but did not participate in
  this decision.

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[3][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."