State v. Brown

State v. Brown (2003-384); 179 Vt. 22; 890 A.2d 79

2005 VT 104

[Filed 26-Aug-2005]


       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.


                                 2005 VT 104

                                No. 2003-384


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 1, Windsor Circuit

  Theodore L. Brown	                         February Term, 2005


  Theresa S. DiMauro, J.

  William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
    General, Montpelier, for Plaintiff-Appellee.

  Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender
    General, Montpelier, for Defendant-Appellant.

  Richard Verrochi, Pro Se, Amherst, New Hampshire, for Amicus Curiae Amherst
    Bail Bonds, Inc.
  	

  PRESENT:  Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
            Allen, C.J. (Ret.),  Specially Assigned

        
       ¶  1.  DOOLEY, J.  Defendant appeals jury convictions of attempting
  to elude, reckless endangerment, and grossly negligent operation.  He also
  appeals an order forfeiting his $5000 bail.  On appeal, defendant argues
  that (1) bail forfeiture was erroneous because his appearance was not
  required and his absence was excusable because he was in federal custody;
  (2) he did not knowingly, voluntarily, and intelligently waive his right to
  counsel; (3) the trial court erred in preventing him from reasserting a
  defense of insanity; and (4) the trial court erred in instructing the jury
  that aiming was not an essential element of the reckless endangerment
  offense.  We vacate the trial court's order forfeiting bail.  We affirm
  defendant's waiver of counsel; however, we find that the trial court erred
  in denying defendant an opportunity to reinstate his insanity defense and
  in instructing the jury on the reckless endangerment charge.  Therefore, we
  reverse defendant's convictions and remand for a new trial.

       ¶  2.  The basic facts surrounding defendant's arrest and conviction
  are set out below.  Additional facts are included in the analysis of the
  relevant issues.  On November 4, 2002, Vermont State Police Officer Paul
  Gauthier, while watching traffic on Interstate-91, observed defendant's car
  traveling in excess of ninety miles per hour and directed the vehicle to
  stop.  Defendant did not pull over; instead he sped up, eventually exiting
  the highway and leading police on a chase through Windsor County.  Officer
  Gauthier followed defendant off the highway and onto smaller, eventually
  dirt, roads with his lights and siren activated.  During the chase, Officer
  Gauthier lost sight of the vehicle.  Over the radio Officer Gauthier heard
  that defendant had been sighted and then saw defendant's car approaching
  his stopped cruiser.  Defendant's car swerved towards the cruiser, but no
  collision occurred.  Eventually, police blockaded defendant's car and
  forced him to stop.  Defendant was initially charged with attempting to
  elude and grossly negligent operation.  Later, the prosecution amended the
  information and added a count of reckless endangerment for "aiming his car
  at a Vermont State Police cruiser."  After arraignment, the court released
  defendant on $5000 cash bail. 
   
       ¶  3.  Defendant's situation became more complicated when, in February
  2003, he was charged with possession of marijuana and another offense of
  attempting to elude.  Although these charges are not currently on appeal,
  they are indirectly involved in the first issue-the claim that the bail
  forfeiture was improper.  The conditions of release on these charges were
  made concurrent with those on the earlier charges so that the $5000 cash
  bail also secured defendant's appearance on the later charges.

       ¶  4.  Defendant has a history of paranoia, beginning with a diagnosis
  of paranoid schizophrenia in 1979.  In March 2003, a psychiatrist, Dr.
  Jonathan Weker, examined defendant and determined that he was competent to
  stand trial, but that his "mental illness deprived him of the capacity to
  conform his conduct to requirements of law."  Dr. Weker's report chronicled
  defendant's belief that he was being targeted by law enforcement agencies,
  specifically that he "seemed quite fixed in the delusional belief that the
  Department of Justice and the U.S. Attorney in Burlington have conspired
  against him, and that the police want to put him in jail or, ideally, to
  kill him."  He found that defendant had "disordered thought at the time of
  the alleged offenses" and that these thoughts "would have overridden Mr.
  Brown's . . . ability to conceptualize alternative courses of action."  
  Specifically, he concluded that defendant believed that responding to the
  police command to stop would "put his life in jeopardy."  On March 28,
  2003, defendant filed a notice of intent to offer an insanity defense,
  indicating that Dr. Weker would testify on his behalf.

       ¶  5.  In April 2003, defendant's situation became even more
  complicated when federal authorities arrested him on a separate drug charge
  and placed him in the custody of U.S. Marshals.  As a result of this arrest
  and incarceration, defendant was absent at an April 9, 2003 calendar call
  on the offenses charged in February and a status conference on all charges
  on April 29.  Defendant's attorney attempted to excuse the absence,
  explaining that defendant was in federal custody.  Nonetheless, the State
  filed for bail forfeiture and, after a hearing, the court granted
  forfeiture of defendant's bail on August 7, 2003.
   
       ¶  6.  Another outcome of his federal arrest was that defendant
  sought to cooperate with federal authorities.  To be free to do so,
  defendant signed a stipulation with the State whereby the State agreed to
  strike pending warrants against defendant and modify his conditions of
  release and defendant agreed to permanently waive his right to assert an
  insanity or diminished capacity defense "or any other mental health
  defense."  Soon after his release, defendant was arrested again for DUI and
  was thus unable to cooperate with federal authorities.  He then filed a
  renewed notice to assert an insanity defense.  The trial court denieddefendant an opportunity to do so, based on the stipulation.


       ¶  7.  After the jury was empaneled, defendant moved to dismiss
  counsel and represent himself.  The court questioned defendant and
  ultimately granted the motion.  At trial, defendant's primary defense to
  the charge of reckless endangerment was that he did not aim at the police
  cruiser.  During deliberations, the jury submitted a question to the court
  inquiring as to whether aiming was an essential element of the reckless
  endangerment charge.  The court answered that aiming was not an element of
  the charge, but was instead part of the language used by the State in its
  charging information to describe the defendant's conduct.   

       ¶  8.  The jury convicted defendant on all counts.  Defendant filed a
  motion for a new trial, which the court denied.  Defendant then filed this
  appeal.                                   I.
   
       ¶  9.  Defendant argues that the court erred in forfeiting his bail
  for failure to appear.  Defendant claims that the forfeiture is erroneous
  because his presence was not required at the calendar call and status
  conference and because federal incarceration within the State is not
  grounds for forfeiture where the defendant is available for trial. 
  Defendant first contends that because the Windsor District Court does not
  order that incarcerated defendants be transported to attend status
  conferences, the court may not punish defendant for his failure to appear
  at such a proceeding.  The State responds that absolving defendant of his
  responsibility to attend court proceedings would negate the deterrent
  effect of bail because defendant chose to engage in the illegal conduct
  that precipitated his arrest by federal authorities which in turn made him
  unable to attend the hearing. (FN1)
        
       ¶  10.  Under 13 V.S.A. § 7560a, a court is authorized to forfeit bail
  if it finds that the person failed to appear at a hearing where appearance
  was required.  We review the court's decision for an abuse of discretion. 
  See State v. Hutchins, 134 Vt. 441, 443, 365 A.2d 507, 508 (1976)
  (explaining that it is within the court's discretion to allow recovery of
  forfeited bail).  "[T]he sole constitutionally legitimate purpose of
  monetary conditions of release is to provide 'additional assurance of the
  presence of the accused.' "  State v. Cardinal, 147 Vt. 461, 464, 520 A.2d 984, 986 (1986) (quoting Stack v. Boyle, 342 U.S. 1, 5 (1951)).  Under our
  policy, forfeiture of bail exists not as a punitive tool, "but rather to
  assure that the defendant will appear at court when required."  Id.
  (emphasis added).  Therefore bail may not be forfeited for breach of
  conditions other than appearance because doing so "transforms monetary bail
  from a guarantor of appearance into a potentially punitive tool useful in
  the enforcement of all bail conditions."  Id.
   
       ¶  11.  After a hearing, which consisted only of oral argument by the
  lawyers without evidence, the trial court found that defendant had been
  required to attend both the status conference and the earlier calendar
  call.  Thus, the trial court found defendant to have breached the
  conditions of release requiring him to "PERSONALLY APPEAR IN COURT AS
  REQUIRED BY NOTICE TO THE DEFENDANT OR DEFENDANT'S ATTORNEY."

       ¶  12.  We find two weaknesses in the court's reasoning.  The first
  involves the requirement that defendant personally appear at the two
  hearings.  The requirement that defendant appear at the status conference
  was based on a computer-generated notice that stated "Defendant must be
  personally present.  FAILURE TO APPEAR MAY RESULT IN AN ARREST WARRANT
  BEING ISSUED."  Apparently, every notice of court hearing issued by the
  court clerk contains this notice.  We cannot find in the record, however,
  any notice concerning the calendar call.  The docket entry simply indicates
  that a calendar conference was held by the court manager.

       ¶  13.  The court did not explain how it concluded that defendant was
  required to appear for the calendar call.  With no evidence presented in
  support of the bail forfeiture motion, the court was apparently relying
  upon judicial notice of the court records, but those records contain no
  evidence that defendant was directed to appear at the calendar call. 
   
       ¶  14.  The situation with respect to the status conference is more
  complicated.  A defendant is not required to attend "a conference or
  argument upon a question of law."  V.R.Cr.P. 43(c)(3).  In addition, the
  commentary to the Rules on pretrial conferences note that the defendant's
  presence is not required and that "it may be best to hold it without him." 
  Reporter's Notes, V.R.Cr.P. 17.1.  The Rules do provide for a status
  conference, V.R.Cr.P. 12(e), but its function is broad and vague.  See
  Reporter's Notes to 1982 Amendment, V.R.Cr.P. 12 (explaining that "the
  function of the status conference is far less specific" than its
  predecessor, the omnibus hearing).  In practice, it appears to be a generic
  label for a hearing on matters not otherwise covered by a specific
  proceeding under the Rules.  The docket entry reflects that the April 29
  status conference was called to determine how to proceed in light of
  defendant's federal charges and incarceration.  The transcript of the
  status conference, nine pages in length, reflects that the conference was
  very brief and focused on the interrelationship of the federal and state
  proceedings and defendant's bail status in light of the federal charges.

       ¶  15.  The trial court never specified the source of the requirement
  that defendant appear at the status conference.  Defense counsel never
  raised the consistency of a direction to appear with Rules 17.1 and 43(c)
  in the context of this case, and the court never considered the question. 
  Because we reverse on other grounds, we do not reach the question.  We do
  believe, however, that this issue of the potential inconsistency between
  Rule 43(c)(3) and the computer-generated form warrants review by our
  criminal rules committee, and we refer the issue to them.

       ¶  16.  The second weakness results from the court's policy with
  respect to the transport of incarcerated defendants for status conferences. 
  It is undisputed that the policy, imposed for budgetary reasons, was that
  the court did not order the transport of incarcerated defendants for status
  conferences unless there was a notice of a plea agreement.  The trial court
  decided, however, that because the State did not incarcerate defendant and
  had no authority to issue a transport order, the policy was inapplicable
  and therefore, defendant's presence was required.

       ¶  17.  We cannot accept the trial court's reasoning.  The proper
  method of obtaining defendant's presence at a state proceeding was
  demonstrated by his appearance at the forfeiture hearing.  The trial court
  described the procedure:

    On June 6, 2003, [defendant's attorney] requested the court to
    issue a Writ of [Habeas] Corpus Ad Prosequendum requesting the
    United States Marshall to release the Defendant into the custody
    of the Windsor County Sheriff for delivery to the hearing on July
    2nd.  The court signed the requested writ.  The federal government
    agreed to the request and released the Defendant for purposes of
    attendance at the hearing only, following which he was returned to
    their custody.
   
  It is clear from this description that the procedure for obtaining the
  presence of a federally-incarcerated prisoner in state court  requires a
  transport order, just as if the defendant were a state prisoner, in
  addition to a request for temporary release from federal custody.  Because
  the rationale for the no-transport policy was "to reduce the monies that
  were expended for transporting of incarcerated people," the policy is just
  as applicable whether the accused is in federal or state custody. 
  Therefore, we conclude that the court's policy of non-transport for
  incarcerated defendants applied in this case, and consequently bail
  forfeiture was erroneous because defendant did not fail to appear at a
  proceeding where his presence was required.  Compare People v. Classified
  Ins. Corp., 210 Cal. Rptr. 162, 165 (Ct. App. 1985) (holding that trial
  court erred in forfeiting bail for nonappearance at hearing where
  defendant's presence was not legally required), with People v. Sacramento
  Bail Bonds, 258 Cal. Rptr. 130, 132-33 (Ct. App. 1989) (affirming
  forfeiture for failure to appear at status conference where rule required
  defendant's presence).  

       ¶  18.  Having decided that in this case the court erred in forfeiting
  bail, we do not reach defendant's second argument that federal
  incarceration in the State is not grounds for forfeiture if defendant is
  still available for trial.  

                                     II.
   
       ¶  19.  Next, defendant submits that he did not knowingly,
  voluntarily, or intelligently waive his right to counsel.  A defendant may
  waive his right to counsel if he is mentally competent and does so
  "knowingly, with full awareness of the consequences of the waiver."  State
  v. Pollard, 163 Vt. 199, 206, 657 A.2d 185, 190 (1995).  We have explained
  that waiver of counsel may not be presumed from a silent record and the
  best practice is for the trial court to "conduct a sufficient inquiry into
  the defendant's experience, motives, and understanding of what he is
  undertaking to determine the quality of his purported waiver, and then to
  provide a clear explanation of the adverse consequences of pro se
  representation."  State v. Merrill, 155 Vt. 422, 425, 584 A.2d 1129, 1131
  (1990) (citation omitted).  On review, we may consider evidence outside the
  trial court record.  Id. at 426, 584 A.2d  at 1131-32.

       ¶  20.  Defendant was represented through the jury draw but discharged
  counsel just before the opening statements.  The court conducted an
  extensive colloquy with defendant and made oral findings on the record
  concluding that the waiver of counsel was knowing, voluntary and
  intelligent.  Defendant claims that the waiver was nevertheless defective
  because the court did not explain the range of sentences he might face if
  convicted and failed to inquire as to his motives in waiving counsel.  The
  State contends that the court adequately questioned defendant and that,
  considering the totality of the circumstances, defendant's waiver was
  informed and voluntary.

       ¶  21.  We agree with the State and find no error in the trial court's
  determination that defendant's waiver of counsel was knowing, voluntary,
  and intelligent.  Defendant was charged with three misdemeanors, the most
  serious of which, reckless endangerment, has a maximum penalty of one year
  in jail and a $1000 fine.  See 13 V.S.A. § 1025.  We said in Merrill that a
  "defendant may need to be advised of the . . . range of allowable
  punishment."  155 Vt. at 425, 584 A.2d  at 1131; accord  Pollard, 163 Vt. at
  207, 657 A.2d  at 190-91 (quoting Merrill).  Based upon the record, we
  cannot find any place where defendant was so advised.  Nevertheless, we do
  not view this as the kind of case where the lack of such advice is
  critical.  Defendant was provided with all the other information necessary
  to decide whether to waive counsel.  We do not believe that knowledge of
  the range of possible punishments for these misdemeanors could have
  affected defendant's decision.
   
       ¶  22.  We reach a similar conclusion as to defendant's argument that
  the court failed to inquire about his motives in waiving counsel.  We
  explained in Merrill that the trial court should conduct a "sufficient
  inquiry" into defendant's motives and other factors "to determine the
  quality of his purported waiver" and "provide a clear explanation of the
  adverse consequences of pro se representation."  155 Vt. at 425, 584 A.2d 
  at 1131.  The court made findings on the quality of the waiver and
  explained to defendant in detail the potential adverse consequences of pro
  se representation.  The court did not need to ask specifically about
  defendant's motives because defendant explained them.  Defendant viewed
  counsel as "just part of this whole deal" and "hooked up with the Court"
  because "[y]ou guys all know each other.  It's all a conspiracy."  He said
  that he had represented himself in the past and was satisfied with his
  self-representation, "more satisfied than [he'd] ever been with any
  attorney."  There was no need to inquire further about defendant's motives.

       ¶  23.  This case is distinguishable from Merrill, where the trial
  court did not inquire as to defendant's understanding of his right to
  counsel at all.  In this case, the court discussed with defendant his
  decision to represent himself.  This case also differs from Pollard, where
  the court failed to inquire about defendant's education and background, his
  past self-representation, his motives and his understanding of the
  proceeding.  163 Vt. at 207-08, 657 A.2d  at 191.  Here, the trial court
  inquired regarding most of these points, only failing to ask specifically
  about defendant's motives.  Examining the entire circumstances, we affirm
  the court's conclusion that defendant's waiver of counsel was knowing,
  voluntary, and intelligent.

                                    III.

       ¶  24.  Defendant also claims that he did not knowingly, voluntarily
  or intelligently waive his right to assert an insanity defense, and thus
  the court erred in denying him an opportunity to reinstate this defense. 
  We conclude, as explained below, that the stipulation did not validly waive
  defendant's right to present a mental health defense.
   
       ¶  25.  The facts surrounding defendant's waiver of an insanity or
  diminished capacity defense are complex and are not fully explained in the
  record.  On March 28, 2003, defendant filed notice with the district court
  of his intention to present an insanity defense, based on Dr. Weker's
  conclusion that defendant was insane at the time of the offense.  Following
  defendant's arrest on federal drug charges, defendant sought to cooperate
  with federal officials to obtain a decreased federal sentence.  In order to
  cooperate, defendant had to be free from incarceration.  That freedom in
  turn required state action because, after the April 29 status conference at
  which defendant did not appear, the court modified defendant's conditions
  of release to increase the bail amount to $25,000 and issued arrest
  warrants because of his nonappearance.  Thus, even if defendant were
  released pending the federal charges, he would immediately be
  reincarcerated under the state arrest warrants and because his bail filing
  was insufficient under the new order. (FN2)
          
       ¶  26.  The barrier to defendant's cooperation was removed when
  defendant and the State executed a stipulation to strike the warrants and
  modify defendant's conditions of release to allow an unsecured appearance
  bond to substitute for cash bail.  The stipulation also provided that
  defendant agreed to "waive permanently his right to assert a defense of
  insanity or diminished capacity or any other mental health defense." 
  Defendant, his attorney, and the State all signed the stipulation.  The
  stipulation was filed with the court on August 7, 2003, and the court
  issued an order that day striking the arrest warrants and modifying the
  conditions of release pursuant to the stipulation.
   
       ¶  27.  Apparently, the new conditions of release order, combined
  with action by the federal court, resulted in defendant's release from
  custody because, on August 13, 2003, defendant was arrested for DUI, fourth
  offense, and again incarcerated, preventing him from cooperating further
  with federal authorities.  Soon thereafter, on September 9, 2003, defendant
  filed a renewed notice to offer evidence of insanity.  On the same day,
  defense counsel moved to withdraw because the State had notified him that,
  if defendant attempted to reassert an insanity defense, he would be called
  as a witness at any hearing.  Both these filings occurred on the date of a
  status conference, which the court led off by stating "I don't think we
  need to address this renewed notice because it's been waived."  That
  comment led to further discussion of the notice and the motion to withdraw,
  with defense counsel stating "I need to withdraw from this case, Your
  Honor, because there are arguments to present in support of that renewed
  notice that make me a witness in this case and directly implicate Rule
  3.8."  The court responded that defense counsel's concerns were
  "hypothetical, based on a possible hearing at which you would be called as
  a witness.  There's not going to be a hearing." (FN3)
        
       ¶  28.  Defendant claims that the stipulation was void because the
  court did not inquire as to his motives or to his understanding, or inform
  defendant of the consequences of the waiver prior to accepting it. 
  Therefore, defendant submits that he should have been permitted to present
  an insanity defense at trial.  The State argues that the trial court is not
  required to engage in a colloquy with defendant prior to accepting a waiver
  of the insanity defense, that defendant made a deliberate choice to waive
  the defense, and that defendant's inability to benefit from it was entirely
  of his own making.
        
       ¶  29.  Defendant relies on a line of cases commencing with  Frendak
  v. United States, 408 A.2d 364 (D.C. 1979).  The issue in Frendak arose in
  a context dramatically different from that before us in this case.  In
  Frendak, a jury found defendant guilty of first-degree murder.  Over
  defendant's objection at the second trial, the court required the jury to
  determine whether defendant was insane at the time of the offense.  From
  the second verdict of not guilty by reason of insanity, defendant appealed
  arguing that she validly waived the insanity defense.  The appellate court
  held that a trial judge "may not force an insanity defense on a defendant
  found competent to stand trial if the individual intelligently and
  voluntarily decides to forego that defense."  Id. at 367.  The court
  acknowledged that defendants have good reasons for choosing not to assert a
  potentially successful insanity defense, including confinement in an
  institution, required treatment, resultant stigma, and other collateral
  consequences.  Id. at 376-78; see also State v. Bean, 171 Vt. 290, 300-01,
  762 A.2d 1259, 1266 (2000) (holding that the decision to assert an insanity
  defense rests with the defendant because defendant bears the consequences
  of the decision). (FN4)  Consequently, the Frendak court concluded that "if
  a defendant has acted intelligently and voluntarily, a trial court must
  defer to his or her decision to waive the insanity defense."  408 A.2d   at
  378.  Frendak has been widely followed under its unique circumstances. 
  See, e.g., State v. Fayle, 658 P.2d 218, 229 (Ariz. Ct. App. 1982)
  (applying Frendak rationale); People v. Gettings, 530 N.E.2d 647, 650 (Ill.
  App. Ct. 1988) (following Frendak and requiring trial judge to conduct
  inquiry of defendant's understanding and motives before defendant may waive
  insanity defense); State v. Khan, 417 A.2d 585, 590 (N.J. 1980) (finding
  "formula enunciated by Frendak to be largely persuasive"); City of Bismarck
  v. Nassif, 449 N.W.2d 789, 798 (N.D. 1989) (requiring Frendak-type
  inquiry); State v. Peterson, 689 P.2d 985, 991 (Or. Ct. App. 1984) (finding
  Frendak approach consistent with Oregon law); State v. Jones, 664 P.2d 1216, 1220 (Wash. 1983) (accepting holding of Frendak); J. Dunlap, What's
  Competence Got to Do with It: The Right Not to Be Acquitted by Reason of
  Insanity, 50 Okla. L. Rev. 495, 509 (1997) (noting that Frendak "has
  enjoyed wide influence"). 

       ¶  30.  We rejected the application of Frendak in State v. Davignon,
  152 Vt. 209, 216-22, 565 A.2d 1301, 1305-08 (1989), and the State cites
  that case for the proposition that waiver of the insanity defense does not
  require an inquiry by the court.  In Davignon, the defendant gave notice
  that he would rely on a defense of insanity but never actually went forward
  with the insanity defense, instead relying upon a diminished capacity
  defense.  On appeal, the defendant claimed that the court should have taken
  affirmative action to insure that defendant intelligently and voluntarily
  forewent the insanity defense.  We examined Frendak's requirement that the
  trial court "take some steps on the record to determine whether any
  purported waiver of the insanity defense was voluntarily and intelligently
  made by the defendant."  Id. at 219, 565 A.2d  at 1307.  We concluded that
  such a requirement did not apply and, under the circumstances, the court
  was not required to conduct a colloquy with the defendant to ascertain that
  the waiver was done knowingly and voluntarily.  Id. at 221, 565 A.2d  at
  1308.

       ¶  31.  Irrespective of our view of the Frendak requirements, we do
  not believe that Davignon contained a blanket rejection of the Frendak
  requirements.  It held explicitly that the "Frendak line of cases [does
  not] apply to this case."  152 Vt. at 219, 565 A.2d  at 1307.  Its reasons
  for rejecting the applicability of Frendak show that Davignon is not
  controlling here.  
   
       ¶  32.  First, Davignon did not involve a true waiver of the insanity
  defense, at least in the way it occurred here.  Thus, we emphasized in
  Davignon that, although defendant abandoned his insanity defense, he
  presented a diminished capacity defense that better fit the facts and the
  evidence adduced through his expert witness.  Id. at 221, 565 A.2d  at
  1307-08.  The jury heard all of the expert testimony attacking defendant's
  ability to form the requisite intent and concluded that the defendant did
  not suffer from a mental disease.  Consequently, on appeal we determined
  that raising insanity would not have had an impact on the defendant's case. 
  Id., 565 A.2d  at 1308.

       ¶  33.  In stark contrast, in this case, defendant's stipulation with
  the State permanently waived his ability to assert "a defense of insanity
  or diminished capacity or any other mental health defense."  As a result,
  defendant was barred from presenting any evidence, including expert
  testimony, regarding his mental state at trial, and the jury never heard
  and considered Dr. Weker's opinion that defendant was insane at the time of
  the offenses. 
   
       ¶  34.  Second, in Davignon, we surmised that the choice to assert
  diminished capacity rather than insanity was the defendant's tactical trial
  decision and not a waiver of an "essential element of a criminal trial." 
  Id.  Here, the stipulation was the functional equivalent of a guilty plea,
  at least as to most of the charges, because it permanently waived the only
  real defense that might have been available.  Apparently, it was, as
  defense counsel stated, "essentially a negotiated disposition, assuming all
  went well."  While it was a tactical decision in relation to the federal
  charges, it was de facto a waiver of the essential right in a criminal
  trial to present a defense.  See Washington v. Texas, 388 U.S. 14, 18-19
  (1967) (explaining that the Sixth Amendment guarantees an accused the right
  to present a defense and witnesses to establish that defense); Bean, 171
  Vt. at 301, 762 A.2d  at 1266 (explaining that defense of insanity is
  essentially a plea).  For a change of plea, the trial court must conduct
  the kind of colloquy that defendant claims was required here.  See
  V.R.Cr.P. 11(c) (requiring court to question defendant about charge,
  penalty, and rights being waived before accepting plea of guilty).

       ¶  35.  Whereas Davignon presented a case where the need for a
  colloquy was less than in Frendak, this case involves circumstances where
  the need may be greater.  The waiver was broader-encompassing any mental
  health defense-than that in Frendak, and was "permanent."  Defendant faced
  a complicated situation with a number of moving parts and needed a clear
  understanding of the risks before waiving his defense to the state charges. 
  Because the federal charges were of controlling significance, he was in a
  weak bargaining position with respect to the state charges.  The Frendak
  rule is based on the policy that the insanity defense protects "persons who
  are not legally responsible for their acts from punishment and culpability
  in the eyes of society." 408 A.2d  at 378.  The court found that the policy
  was so strong that waiver of an insanity defense could occur only if the
  trial court "ensure[s] that the defendant understands the consequences of
  his or her choice and makes the decision voluntarily" and has the capacity
  to make an intelligent choice.  Id.  Here, the consequences were greater
  and more uncertain than normal because multiple proceedings and
  jurisdictions were involved. 
   
       ¶  36.  We agree with the balance struck in Frendak that the nature
  of the waiver involved, and the possible limitations on the capacity of the
  defendant to make intelligent and informed choices, requires the trial
  court to examine the defendant to ensure that any waiver of an insanity
  defense is knowing, intelligent and voluntary before acting on the waiver. 
  While Frendak involved a different context, we believe that its waiver
  holding is applicable here.  To adequately balance defendant's right to an
  autonomous decision and the public interest in protecting "an insane person
  from being held culpable for his actions," the court must engage defendant
  in a discussion.  Gettings, 530 N.E.2d  at 650.  Although we decline to set
  detailed requirements for such a discussion, we instruct courts that before
  accepting a permanent waiver the court should address defendant's knowledge
  of the insanity defense, his reason for waiving the defense, and his
  comprehension of the consequences of both waiver and use of the defense. 
  Id. (holding that court must conduct inquiry prior to accepting waiver of
  defense and listing elements of such a discussion).  In imposing this
  requirement, we continue to adhere to the distinction made in Davignon that
  such a discussion is unnecessary if defendant will place his mental
  capacity in issue in another way.

       ¶  37.  We recognize that in reaching this holding, we may be
  undermining the flexibility that is sought by the defendant.  Through
  counsel, defendant wanted the court to immediately approve and implement
  the stipulation so that he could cooperate with the federal authorities. 
  Requiring a hearing with defendant present may have delayed his release
  significantly.  We conclude, however, that the delay is a necessary price
  to pay to ensure that defendant engages in a knowing, intelligent and
  voluntary waiver.

       ¶  38.  We also acknowledge that part of our concern on this record is
  that a waiver not be coerced by the opportunity available to defendant and
  the bargaining position of the parties.  We have expressed concern about
  the waiver of some statutory rights in plea negotiations, see State v.
  Buck, 139 Vt. 310, 314-15, 428 A.2d 1090, 1093 (1981) (holding that because
  the right to appeal was conferred by statute, "its restriction or
  prohibition as a condition of sentence deferment or probation cannot be
  reconciled with that statute"), and that concern is particularly relevant
  if no "direct correlation" between the right being waived and the benefit
  to defendant is present, State v. Hance, 157 Vt. 222, 224-25, 596 A.2d 365,
  367 (1991).  The record does not tell us if concern is justified in this
  case, and that is part of the reason for requiring a trial court inquiry.  
   
       ¶  39.  We hold that where a defendant attempts to waive all mental
  health defenses, and the record demonstrates that the defendant has
  sufficient evidence to get to the jury on one or more of these defenses,
  the trial court must inquire as to defendant's understanding of the
  consequences of such a waiver as described above.  Here, the trial court
  accepted the stipulation without questioning defendant or explaining to him
  the outcome of his agreement.  Accordingly, defendant's stipulation was
  invalid, and he is entitled to a new trial.  (FN5) 

                                     IV.


       ¶  40.  Defendant last claims that the court erred in advising the
  jury that the prosecution was not required to prove that defendant "aimed"
  his car at the police cruiser in order to satisfy the elements of the
  reckless endangerment charge. (FN6)  The information for this charge stated
  that defendant did "recklessly engage in conduct which placed another
  person in danger of serious bodily injury by aiming his car at a Vermont
  State Police cruiser knowing the cruiser to be occupied while traveling at
  a high rate of speed in violation of 13 VSA § 1025."  During deliberations,
  the jury submitted the following question to the court:  "In charge three,
  if element is 'actions placed Trooper in danger,' does the state have to
  prove danger was because Mr. Brown aimed car toward cruiser?  In other
  words - is 'aiming' a part of the third element of the third count."  After
  discussion with the parties, the court instructed the jury as follows:
   
    Aiming the car is not an essential element of the charge of
    reckless endangerment.  It is part of the language used by the
    State in its charging information to describe the defendant's
    conduct.  Aiming the car is a part of the conduct which the State
    alleges meets the essential elements of reckless endangerment. 
    The essential elements of the charge of reckless endangerment are
    that on the date and at the place alleged, first, Theodore Brown,
    Jr.; second, recklessly engaged in conduct; third, which placed
    Trooper Paul Gauthier in danger; fourth, of death or serious
    bodily injury.  You need to consider the instructions on reckless
    endangerment given to you by the Court as a whole in making your
    determination whether or not the State has proven that the
    defendant recklessly engaged in conduct which placed the trooper
    in danger of death or serious bodily injury.

       ¶  41.  Defendant argues that this instruction failed to properly
  explain the State's burden of proof.  Defendant relies on State v. Aiken,
  2004 VT 96, ¶ 4, 15 Vt. L. Wk. 323, 862 A.2d 285 (mem.),  a case with
  very similar facts where the judge, in answer to a jury question, told the
  jury that it was not confined to the language in the information to
  determine whether the defendant's actions met the elements of grossly
  negligent driving.  We reversed and explained that where the State alleges
  particular conduct in the information, and the evidence at trial focuses on
  that conduct, defendant will be prejudiced if the State is permitted, at
  the last minute, to prove the offense through other means.  Id. ¶¶
  12-14.

       ¶  42.  In this case, the information clearly states that the State
  chose to rely on specific conduct, and as in Aiken, defendant relied upon
  the statement in the information to present a defense.  Thus, under Aiken,
  the State was required to prove that defendant aimed his car at the police
  cruiser in order  to obtain a conviction for reckless endangerment.  The
  State concedes this point, but argues that although the instruction was
  "somewhat inartfully worded," it was sufficient to explain to the jury what
  the State had to prove.

       ¶  43.  On appeal, we review jury instructions in their entirety and
  will reverse only when "the entire charge undermines confidence in the
  verdict."  State v. Lambert, 2003 VT 28, ¶ 14, 175 Vt. 275, 830 A.2d 9
  (quotations omitted).  The jury instruction in this case cannot meet this
  standard because its errors and poor construction bring into question the
  verdict's validity.  
   
       ¶  44.  The jury specifically asked whether the State had to prove
  that defendant aimed his car at the cruiser and additionally restated the
  question: "in other words - is 'aiming' a part of the third element of the
  third count."  Under the State's theory, the restatement of the question
  controls, and it does not ask whether the State had to prove "aiming." 
  Instead it asks a fine point of law, whether "aiming" is technically an
  element of the crime, although that point is irrelevant to the jury's
  responsibility.  We do not believe that a reasonable juror would have
  understood from the court's response that the State had to prove that
  defendant aimed his car at the state police cruiser.  Under these
  circumstances, we conclude that a new trial is necessary.

       The district court's order forfeiting bail is reversed; funds
  surrendered pursuant to the order shall be returned.  Defendant's
  convictions are reversed and the matter is remanded for a new trial.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  The State also submits that defendant did not preserve this argument
  because he failed to raise it at the status conference.  We do not
  understand how defense counsel's actions at the status conference are
  relevant because the State's motion to forfeit bail was not filed until the
  day after the status conference.  In fact, the forfeiture motion appears to
  have been made in response to the suggestion of the judge who, when defense
  counsel objected to any forfeiture motion, said that any argument on
  whether forfeiture is appropriate should come at the forfeiture hearing. 
  In his written opposition and at that hearing, defendant raised both
  arguments now presented on appeal.  In general, the purposes of requiring a
  timely objection and presentation of argument is to "let the opponent
  correct the error, to inform the court so it can rule intelligently and
  quickly, and to reduce the necessity for reversal."  State v. Bissonette,
  145 Vt. 381, 392, 488 A.2d 1231, 1237 (1985).  We conclude that defendant's
  presentation of his arguments in his opposition and at the hearing
  fulfilled these purposes.

FN2.  In addition, the bail forfeiture decision was pending so it is
  doubtful that defendant could be considered as having any bail on file.

FN3.  The above exchange did not end the discussion, but the ruling did not
  change.  Defense counsel explained in more detail what he saw as his
  ethical dilemma and why it prevented him from filing a motion to set aside
  the waiver.  The court recited the in-court events on the day of the
  waiver, all of which occurred in chambers or at the counter in the clerk's
  office with the prosecutor and defense counsel, but not defendant, present. 
  The judge indicated that the stipulation was done to help defendant in his
  federal cases and she was somewhat reluctant to implement it.  Finally, the
  court restated that it would not consider the renewed notice of insanity
  because "[i]t is a non-issue," and denied the motion to withdraw because it
  was mooted by the court's decision.

FN4.  Bean discusses parts of Frendak, but does not explicitly adopt or
  reject the reasoning in those parts.  For example, Frendak requires a
  higher level of competency to waive an insanity defense than to stand
  trial.  408 A.2d  at 379-80.  In Bean, we did not answer the question of
  "whether a higher standard of competency must be met before a defendant,
  found competent to stand trial, can knowingly and intelligently waive an
  insanity defense."  171 Vt. at 302, 762 A.2d  at 1267.  In this case,
  defendant has not raised competency on appeal.  Thus, we do not reach this
  issue, and we consider only whether defendant knowingly and voluntarily
  waived the defense, not whether he was competent to do so at the time.

FN5.  Although there may be an issue as to whether the insanity defense can
  be raised in response to the attempting to elude charge because it is a
  strict liability offense, neither party has raised this issue on appeal. 
  We therefore decline to address the question and remand for a new trial on
  all charges. 

FN6.  Although the reckless endangerment conviction must be set aside
  because defendant was prevented from asserting a mental health defense, we
  consider this additional ground for reversal, briefed by the parties,
  because it may again arise at a retrial.