State v. Hemond
Annotate this Case
State v. Hemond (2003-329); 178 Vt. 470; 868 A.2d 734
2005 VT 12
[Filed 02-Feb-2005]
ENTRY ORDER
2005 VT 12
SUPREME COURT DOCKET NO. 2003-329
OCTOBER TERM, 2004
State of Vermont } APPEALED FROM:
}
} District Court of Vermont,
v. } Unit No. 3, Franklin Circuit
}
James Hemond }
} DOCKET NO. 1740-12-01 Frcr
Trial Judge: Michael S. Kupersmith
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant appeals a district court judgment convicting him,
after a jury trial, of operating a motor vehicle in a grossly negligent
manner with serious injury resulting, in violation of 23 V.S.A. § 1091(b).
Defendant presses three arguments on appeal: (1) the trial court's
exclusion of his exculpatory written statement to the police on the day of
the incident violated his right to present evidence and the rule of
completeness; (2) the prosecutor's statement during closing arguments that
the outcome of the case would have no bearing on complainant's pending
civil case against defendant was prejudicial; and (3) the prosecutor's
expressions of personal opinion in his closing were plain error. None of
defendant's arguments warrants reversal. First, the court acted within its
discretion by excluding the written statement because no part of the
statement was introduced, so that the rule of completeness did not apply.
Second, the prosecutor's remarks concerning the impact this case would have
on the civil case were not so prejudicial as to warrant reversal,
considering defendant already planted the seed in the jury's mind of
complainant's potential motive to lie. Finally, the prosecutor's use of
expressions like "I think" during his closing did not amount to plain
error. Therefore, we affirm.
¶ 2. Defendant was charged with grossly negligent operation of a
motor vehicle, in violation of 23 V.S.A. § 1091(b), for "blocking a
motorcycle from passing and braking abruptly, thereby causing an accident
in which [complainant] suffered serious bodily injury." At trial,
complainant testified that he was driving his motorcycle southbound on
Route 7 in Georgia, Vermont, at approximately fifty to fifty-five miles per
hour, when he came up behind the car driven by defendant. According to
complainant, defendant's car was moving below the speed limit, at about
forty miles per hour. Complainant signaled to pass and pulled into the
left lane. Defendant's car then pulled into the left lane, preventing
complainant from passing. Both vehicles then returned to the right lane.
¶ 3. Complainant again signaled to pass and, as he moved into the
left lane, defendant's car "jerked into the left hand lane." Complainant
testified he immediately pulled back into the right lane, as did
defendant's car. At this point, complainant estimated that both vehicles
were traveling at about thirty-five miles per hour. As the vehicles
approached the intersection with Interstate 89, where a concrete barrier
divides the road, the car "slammed on his brakes" and slowed down.
Complainant applied his brakes but could not stop in time, and the
motorcycle's front tire hit the car's rear bumper. Complainant flew
through the motorcycle's windshield, and his left shoulder hit the rear
tailgate of the car. Defendant stopped and called 911.
¶ 4. Franklin County Deputy Sheriff Jacy Dennett responded to the
scene and spoke with defendant. At trial, Deputy Dennett testified that
defendant explained he had pulled over to the left and slowed down "to
prevent [complainant] from passing" and "to block him." The prosecutor
asked the deputy if defendant had said why he was preventing the vehicle
from passing, and the deputy replied, "[h]e didn't want the vehicle to pass
him before the median."
¶ 5. Next to testify was Deputy Sheriff Allison Geary who also was
present at the scene of the accident. She testified that defendant told
her he had pulled over to stop the motorcycle from passing him because he
was going to be turning onto I-89. "He had simply stated that he had
pulled over so the motorcycle would not pass him."
¶ 6. On cross-examination of Deputy Geary, defense counsel offered
a written statement defendant had provided to Deputy Geary after the
accident. In the statement, defendant wrote that he was worried about the
complainant's vehicle passing and "getting in connection with island." The
written statement does not say that defendant tried to block the
motorcycle. The State objected to the written statement as hearsay, and
the district court sustained the objection.
¶ 7. We turn first to defendant's contention that the exclusion of
his written statement was reversible error because it violated the rule of
completeness and his right to present evidence. "We will reverse a trial
court's decision to admit evidence only if the court withheld or abused its
discretion." State v. Gemler, 2004 VT 3, ¶ 11, 176 Vt. 257, 844 A.2d 757. In sum, defendant argues that the trial court abused its discretion
because, once the court allowed the State to introduce defendant's oral
statements to the police, the rule of completeness required admission of
his written statement. We disagree.
¶ 8. The rule of completeness has been codified in Vermont Rule of
Evidence 106: "When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require him at that time to
introduce any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it." The plain
language of the Rule supports the trial court's decision to exclude the
written statement. Because the State did not offer any part of a written
statement, defendant could not properly invoke the Rule to introduce the
statement as an "other part" or "other writing" related to a writing or
recorded statement introduced by the State. In other words, because the
State limited its proof to testimony concerning defendant's oral statements
to the police officers, the defendant could not use the separate written
statement to complete that testimony under V.R.E. 106. See, e.g., United
States v. Ramirez-Perez, 166 F.3d 1106, 1113-14 (11th Cir. 1999) (holding
that defendant was not entitled to introduce exculpatory, contemporaneous
written statement where prosecutor limited agent's testimony to defendant's
inculpatory oral statements). In short, nothing in V.R.E. 106 or our
caselaw suggests that the rule of completeness requires admission of a
written statement based on its relationship to an oral statement that has
been admitted into evidence. Therefore, the district court properly
exercised its discretion when it excluded the written statement.
¶ 9. Moreover, the exclusion of the statement did not detract from
defendant's ability to present his theory of the case. In fact, defense
counsel elicited the substance of the written statement from Deputies
Dennett and Geary during their cross-examinations. Specifically, Deputy
Dennett testified that defendant said he pulled to the left but did not
cross the center lines, slowed down, and put on his blinker, and that he
was "worried" that the vehicle approaching him quickly from the rear was
going to hit the concrete barrier near the exit. Deputy Geary also
testified that defendant said he was "worried about the vehicle passing
him." Additionally, defendant testified that he never told the officers he
blocked the motorcycle, and that the oral and written versions of the
incident he gave on the day of the accident were consistent with the
version he testified to at trial. Because the deputies' and defendant's
testimony covered the substance of the written statement and enabled
defendant to articulate his theory of the case, no prejudice affecting a
substantial right of defendant resulted from the district court's exclusion
of the written statement. (FN1) See V.R.C.P. 61 (providing that error in
the exclusion of evidence does not warrant relief unless refusing to grant
relief "appears to the court inconsistent with substantial justice," and
directing court to "disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties"). Accordingly, we
affirm the district court's exclusion of the written statement.
¶ 10. Next, we reject defendant's argument that the trial court
erred in denying defendant's motion for a new trial based on the
prosecutor's statement during closing arguments concerning the impact of
the jury's verdict on the civil case between complainant and defendant.
The allegedly improper statement occurred during the State's rebuttal
closing, after defense counsel suggested in his closing argument that the
jury should not believe complainant because he had commenced a civil case
against defendant: "What does [complainant] have to gain by testifying that
this is the way that it happened? There is a civil suit." On rebuttal,
the prosecutor responded as follows: "[Defense counsel] has raised the
issue that there's a civil case. You folks know that you're not
determining money damages here. Any decision that you make in the case is
not going to affect the civil case. So any contention that [complainant's]
testimony is colored by that . . . ." Defense counsel interrupted with an
objection that the prosecutor's remark was inaccurate. The trial court
responded that "[t]he jury will make its own judgment," and the prosecutor
continued without further comment on the topic.
¶ 11. A defendant seeking reversal of a conviction based on an
allegedly improper closing argument must show not only that the
prosecutor's argument was improper, " 'but also that it impaired the
defendant's right to a fair trial.' " State v. Hemingway, 148 Vt. 90, 91,
528 A.2d 746, 748 (1987) (quoting State v. Gates, 141 Vt. 562, 566, 451 A.2d 1084, 1086 (1982)). Assuming arguendo that the prosecutor's remark
was an incorrect statement of the law concerning the impact of a criminal
verdict on a civil case, we nonetheless hold that defendant did not show
that the remark impaired his right to a fair trial.
¶ 12. In assessing whether a prosecutor's statement requires
reversal, we have considered several nonexclusive factors: the blatancy of
the challenged statement, the impact on the theory of the defense, the
persistence and frequency of the statement, the opportunity for the court
to minimize potential prejudice, the strength of the evidence supporting
the relevance of the statement, the overall strength of the State's case,
the apparent motivation for making the remarks, State v. Francis, 151 Vt.
296, 299, 561 A.2d 392, 394 (1989), and whether the statement was
inflammatory and attacked defendant's character, State v. Martel, 164 Vt.
501, 506, 670 A.2d 845, 849 (1995). Here, these factors weigh heavily
against finding that the statement impaired defendant's right to a fair
trial.
¶ 13. The prosecutor's statement pertained not to defendant's
theory of the case, but to rebutting a charge of witness bias. Similarly,
it was not an inflammatory attack on defendant's character. Moreover,
given that the prosecutor made only one statement and immediately moved on
after defendant's objection, the statement was neither blatant nor
persistent. In addition, because defense counsel first broached the issue
of the complainant's potential bias, we cannot say the prosecutor was
motivated by an improper purpose in attempting to address the issue.
Finally, the district court reacted immediately by emphasizing that the
jury "will make its own judgment," and the court's instructions reinforced
that the lawyers' arguments are not evidence and that the jurors are the
sole judges of the facts, including the credibility of the witnesses.
Therefore, we reject defendant's argument that the prosecutor's statement
concerning the civil case warranted a new trial. See id. at 506-07, 670 A.2d at 849 (affirming denial of motion for new trial where alleged
improper statement occurred once, comment was not inflammatory and did not
attack defendant's character, and court instructed jury that counsel's
arguments were not evidence).
¶ 14. Finally, we reject defendant's argument that the prosecutor's
alleged statements of personal opinion during the closing argument amounted
to plain error requiring reversal. We review for plain error where, as
here, defendant did not object at trial to an allegedly improper statement
by a prosecutor in the State's closing argument. State v. Ayers, 148 Vt.
421, 425, 535 A.2d 330, 333 (1987) (citing V.R.Cr.P. 52(b)). This standard
requires a showing of an error that "strikes at the heart of defendant's
constitutional rights or results in a miscarriage of justice." Id. at 426,
535 A.2d at 333. In the context of a challenge to a prosecutor's closing
argument, we have found plain error "only if the argument is manifestly and
egregiously improper." Id. (quotation omitted).
¶ 15. We cannot agree with defendant that the challenged statements
amount to plain error. The contested remarks in this case are similar to
those in State v. Messier, 146 Vt. 145, 499 A.2d 32 (1985), where we
declined to find plain error. In Messier, the remarks "contained such
expressions as 'I think . . . ;' 'I don't think . . . ,' and the like," and
we noted that the defendant "produce[d] six examples" of such statements.
146 Vt. at 159, 499 A.2d at 43. Recognizing that the remarks reflected
"what [the prosecutor] thought the jury would believe," that "virtually
all" of the statements were "clearly rhetorical," that "they were short and
widely scattered throughout" the closing argument, and that the trial court
instructed the jury that counsel's arguments are not evidence, we declined
to find plain error. Id. at 160, 499 A.2d at 43. Similarly, the comments
here did not blanket the record but appeared sporadically at roughly six
locations identified by defendant. In addition, they expressed what the
prosecutor thought the jury would believe, and did not urge upon the jury
the prosecutor's own view as to the guilt of the defendant. Moreover, the
district court instructed the jury that counsel's arguments were not
evidence, and that the jury was required to base its decision only upon the
evidence.
¶ 16. This case contrasts sharply with the rare instances in which
we have found plain error based on a prosecutor's comments. For instance,
in Ayers, we found plain error because the prosecutor opined that he
believed the witness and not the defendant, and the case revolved entirely
around the credibility of the witnesses. 148 Vt. at 426, 535 A.2d at 333.
Significantly, we also pointed out that the defendant in Ayers appeared
without counsel. Id., 535 A.2d at 334. This case also differs markedly
from State v. Lawton, where the prosecutor repeatedly "interject[ed] her
personal opinion of defendant's character and credibility" during
cross-examination, including comments like defendant " 'had a lot of
practice lying.' " 164 Vt. 179, 184, 667 A.2d 50, 55 (1995). Here, the
prosecutor never attacked defendant, but restricted his comments to the
evidence and the testimony. Therefore, we find no plain error based on the
contested remarks.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
FN1. For these reasons, we also reject defendant's argument that the
exclusion of the written statement violated his right to present evidence
in his defense.
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