State v. Daley

State v. Daley (2004-458); 179 Vt. 589; 892 A.2d 244

2006 VT 5

[Filed 06-Jan-2006]

                                 ENTRY ORDER

                                  2006 VT 5

                      SUPREME COURT DOCKET NO. 2004-458

                             OCTOBER TERM, 2005
  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 1, Windsor Circuit
  Eric P. Daley	                       }
                                       }	DOCKET NO. 696-6-03 WrCr

                                                Trial Judge: Mary Miles Teachout

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

       ¶  1.  Defendant Eric P. Daley appeals from an aggregate sentence of
  twenty-six to thirty-three years imposed by the trial court following the
  court's acceptance of defendant's guilty plea to seven criminal charges
  resulting from a high speed police pursuit in which defendant struck and
  killed a state police trooper.  Defendant contends the court erred by: (1)
  refusing to treat defendant's claimed  unconstitutional detention, and the
  trooper's alleged misuse of spike strips, as mitigating factors; (2)
  conferring victim status on two state troopers who witnessed the incident;
  and (3) failing to consider as a mitigating factor defendant's testimony
  that he was unaware of having struck the trooper.  We affirm.
   
       ¶  2.  The events that resulted in the death of State Police
  Sergeant Michael Johnson may be summarized as follows.  On the afternoon of
  June 15, 2003, Trooper Michael Smith of the Vermont State Police stopped a
  vehicle for speeding on Interstate 91.  During the ticketing process, the
  officer requested background information about the driver, later identified
  as defendant, and learned that he had previously been arrested for
  possession of illegal drugs.  Shortly after Trooper Smith completed the
  paperwork, another officer, Sergeant Page, arrived at the scene and advised
  Trooper Smith to detain defendant until they located a canine unit to
  search the car for illegal drugs.  Upon learning that a unit was not
  available, Trooper Smith was about to inform defendant that he was free to
  leave when he heard defendant's tires squeal and observed defendant drive
  away at a high rate of speed traveling south on Interstate 91.

       ¶  3.  The officers pursued defendant in their cruisers with their
  blue lights flashing, at times reaching speeds of 120 miles per hour.  They
  were unable to gain ground on defendant, however, who was weaving in and
  out of other cars on the Interstate.  In the meantime, Sergeant  Johnson,
  who was traveling in the opposite direction and monitoring the chase,
  radioed dispatch to determine whether Sergeant Page wanted him lay down a
  set of spike mats on the highway to stop the fleeing vehicle.  Sergeant
  Johnson had indicated that he was at mile marker seventy-six.  Sergeant
  Page informed dispatch to advise Sergeant Johnson to deploy the spikes and
  to hurry because they were approaching mile marker seventy-seven and coming
  fast.  
   
       ¶  4.  Sergeant Johnson, in response, parked his cruiser in a U-turn
  area of the center-median of the Interstate, crossed to the west side of
  the southbound lane, and began laying down spikes.  As Sergeant Page
  approached at high speed, he observed Sergeant Johnson run across the
  southbound lane toward his parked cruiser.  Ahead of Sergeant Page was
  defendant and a caravan of three vehicles carrying a group of parents and
  eighth graders returning from a school trip.  Defendant passed two of the
  vehicles and was pulling in behind the third when the latter struck the
  spikes.  Defendant in response swerved sharply to the left and lost control
  of his car.  It crossed onto the grass median, spun down a slope, and
  struck Sergeant Johnson, who was thrown about ninety feet by the collision. 
  Defendant's vehicle came to rest in the northbound lane, about twenty-five
  feet from where Sergeant Johnson landed.  Defendant left his vehicle,
  jumped over a guardrail, and escaped into the woods.  With the assistance
  of friends, he fled to Pennsylvania, where he was eventually arrested. 
  Sergeant Johnson was transported to Dartmouth-Hitchcock Medical Center,
  where he was pronounced dead about an hour after the incident.  A
  subsequent search of defendant's vehicle revealed several bags of marijuana
  and smaller amounts of LSD and Ecstasy.  

       ¶  5.  Defendant was charged with seven separate counts, including
  grossly negligent operation of a motor vehicle with death resulting,
  leaving the scene of an accident with death resulting, attempting to elude
  a police officer, second-degree murder, and three counts of possession of
  illegal drugs.  Pursuant to a negotiated plea, the State agreed to reduce
  two of the possession charges, to reduce the murder charge to involuntary
  manslaughter, and to run several of the charges concurrently, for a maximum
  exposure of thirty-three years. The Department of Corrections filed a
  pre-sentence investigation report, defendant filed a sentencing memorandum
  to which the State responded, and the court held a sentencing hearing over
  the course of three days in September 2004.  At the conclusion of the
  hearing, the court sentenced defendant to a term of twenty-six to
  thirty-three years, consistent with the negotiated plea. This appeal
  followed.     

       ¶  6.  Our review in this matter is limited.  As we have frequently
  observed, the trial court enjoys broad discretion in imposing sentence. 
  State v. Ingerson, 2004 VT 36, ¶10, 176 Vt. 428, 852 A.2d 567; State v.
  White, 172 Vt. 493, 501-502, 782 A.2d 1187, 1193 (2001).  Absent
  exceptional circumstances, we will defer to the court's judgment so long as
  the sentence is within the statutory limits and was not based on improper
  or inaccurate information.  Ingerson, 2004 VT 36, ¶ 10.  With these
  standards in mind, we turn to defendant's claims.  

       ¶  7.  Defendant contends initially that the court abused its
  discretion in refusing to consider his allegedly unconstitutional detention
  as a mitigating factor.  Defendant argued at sentencing that the police
  exceeded their authority when, following issuance of the speeding ticket,
  they attempted to detain him further to conduct a dog-sniff search of the
  vehicle for drugs.  Defendant claims, as he stated in his sentencing
  memorandum, that the incident "would have been avoided and Sergeant Johnson
  would not have been accidentally killed if the speeding ticket was issued
  to [defendant] without delay."  Defendant also suggests on appeal that his
  claim to mitigation is analogous to 13 V.S.A. § 2303(e)(5), the statutory
  mitigating factor for murder sentences where the defendant acts "under
  duress, coercion, threat or compulsion insufficient to constitute a defense
  but which significantly affected his or her conduct."  
   
       ¶  8.  The trial court rejected the argument, finding that even if
  defendant's constitutional claim had merit, or that it was reasonable for
  defendant to feel unjustly treated or angered by the police detention, it
  did not in any way mitigate, excuse, or explain defendant's subsequent
  conduct that resulted in Sergeant Johnson's death. The court's rejection of
  the police stop as a mitigating factor, or as some type of threat or duress
  ameliorating defendant's actions, was well within its broad sentencing
  discretion, and therefore can not be disturbed on appeal.  Ingerson, 2004
  VT 36, ¶ 10.  Indeed, even if we disagreed with the trial court's finding
  in this regard-which we do not-it would not warrant a reversal of the
  sentence.  See State v. Simoneau, 2003 VT 83, ¶21, 176 Vt. 15, 833 A.2d 1280 (noting general rule that we will not disturb discretionary rulings of
  trial court that have a reasonable basis even if this or another court
  would have reached a different conclusion); White, 172 Vt. at 502, 782 A.2d 
  at 1193-94 (holding that trial court retains wide discretion to apply or
  reject mitigating and aggravating factors, as well as to interpret meaning
  of individual factors, and its determination must be upheld absent abuse of
  discretion).  Accordingly, we discern no basis to disturb the sentence on
  this ground.  

       ¶  9.  Defendant next contends the court erroneously refused to
  consider as a mitigating factor his claim that the use of spike strips
  contravened police procedures and regulations, at least in part because
  there was insufficient time for Sergeant Johnson to safely deploy them and
  seek adequate cover.  The court found that even assuming the use of the
  spikes was ill-advised or contrary to regulations, it did not mitigate
  defendant's culpability given the various opportunities that remained for
  defendant to prevent the crash simply by stopping, slowing down, or staying
  in his lane and running over the spikes.  As was true of its finding
  concerning the allegedly illegal stop, the court's rejection of defendant's
  mitigation argument in this regard was well within its broad sentencing
  discretion, and therefore may not be disturbed on appeal.  Ingerson, 2004
  VT 36, ¶ 10; White, 172 Vt. at 502, 782 A.2d  at 1193-94.    

       ¶  10.  Defendant further asserts that the court erred in conferring
  "victim" status on Trooper Smith and Sergeant Page under 13 V.S.A. §
  5321(a)(2), which provides that the "victim of a crime" has the right  at
  sentencing "to appear, personally, to express reasonably his or her views
  concerning the crime, the person convicted, and the need for restitution." 
  The court ruled that, as co-workers of Sergeant Johnson and witnesses to
  the incident, both officers were entitled to give victim-impact testimony. 
  Defendant contends the court's ruling conflicts with the statutory
  definition of "victim," which arguably includes only those who suffer
  direct physical, emotional, or financial injury at the hands of the
  defendant, and a limited group of relatives of the victim. (FN1)  Defendant
  claims that others, such as Sergeant Page and Trooper Smith, who witnessed
  the incident, fall within the separate statutory definition of "affected
  persons" who are entitled to receive notice of a defendant's release or
  escape but not to offer victim-impact testimony at sentencing. (FN2)
   
       ¶  11.  Although we have not previously addressed this issue, we need
  not do so here.  A review of the record reveals that the officers' "impact"
  testimony consisted, in total, of three sentences.  When queried about the
  effect that Sergeant Johnson's death had on him, Trooper Smith responded:
  "Obviously quite profound.  He was a mentor, taught me a lot about the job,
  life in general." When asked the same question, Sergeant Page answered: "I
  lost a friend, a co-worker and it makes it just a little more difficult to
  go to work."  The State's attorney did not advert to the officers'
  testimony during his closing argument, and the trial court did not rely to
  any extent on the testimony during its explanation of the factors that went
  into the sentencing decision.  Foremost among these were the extreme
  recklessness and indifference to human life demonstrated by the
  circumstances of the offense, during which defendant drove around and among
  other occupied vehicles at speeds approaching 120 miles per hour, putting
  himself and others at extreme risk, and then fled the scene without regard
  for the consequences of his actions; defendant's criminal history, which
  included a prior high-speed police pursuit; the risk that defendant posed
  to the community; and the strong societal interest in making a clear
  statement that such behavior will not be tolerated and will, in fact, be
  severely punished.  Thus, it is readily apparent from the record and the
  court's findings that the sentence was driven by defendant's recklessness,
  his risk to public safety, and the need for deterrence, rather than by any
  impact on the emotions of Sergeant Johnson's fellow officers. Accordingly,
  any error in the admission of the officers' testimony was harmless.  See
  State v. Gibney, 2003 VT 26, ¶ 53, 175 Vt. 180, 825 A.2d 32 (recognizing
  that we apply harmless error analysis to sentencing error); State v. Bacon,
  169 Vt. 268, 273, 733 A.2d 50, 54 (1999) (holding that any error in
  considering victim's standing in the community was harmless where record
  showed that other valid aggravating factors established an "independent
  basis for the sentencing decision"). 
        
       ¶  12.  Finally, defendant contends the court erred in failing to
  consider as a mitigating factor defendant's claim that he was unaware of
  having hit Sergeant Johnson when he fled the scene.  The argument is
  unpersuasive.  First, we note that defendant pled guilty to the charge of
  leaving the scene of an accident in which death resulted, which by
  definition includes the elements of actual knowledge of the accident, and
  actual or constructive knowledge of injury or damage resulting from the
  accident.  State v. Keiser, 174 Vt. 87, 92-93, 807 A.2d 378, 383-84 (2002);
  State v. Sidway, 139 Vt. 480, 485-86, 431 A.2d 1237, 1239-40 (1981).  Thus,
  defendant's claim was, at best, an appeal to some lingering or residual
  doubt about his guilt notwithstanding the plea.  Second, the court
  implicitly found that defendant's claim lacked credibility, and the finding
  was well supported by the evidence.  There was no dispute that defendant
  actually knew he swerved off the road at a high rate of speed, spun through
  the median, and came to rest on the other side of the Interstate.  This
  qualifies as an "accident" under the hit-and-run statute by any normal
  understanding of the term. (FN3)  See Swett v. Haig's, Inc., 164 Vt. 1, 5,
  663 A.2d 930, 932 (1995) (in construing statute we presume Legislature
  intended plain, ordinary meaning of its terms); No. Sec. Ins. Co. v.
  Perron, 172 Vt. 204, 211, 777 A.2d 151, 156 (2001) (observing that "an
  accident is generally understood to be an event that is undesigned and
  unforeseen") (quotations omitted).
                                    
       ¶  13.  The evidence also supported a finding that defendant had
  actual or constructive knowledge of injury resulting from the accident.  We
  have held that constructive knowledge of injury under the hit-and-run
  statute entails an objective inquiry into what "a reasonable person would
  have gathered from the circumstances of the accident," so that the fact
  finder may "impute to defendant knowledge that a reasonable investigation
  of the circumstances of the accident would reveal."  Keiser, 174 Vt. at 93,
  807 A.2d  at 384.  Defendant here acknowledged that he observed an
  individual on the right side of the road and a parked vehicle on the left
  just before he swerved off the highway, and was aware of other vehicles in
  the vicinity.  The evidence thus supported the court's finding of "a high
  likelihood that any impact of [defendant's] car would have an effect on the
  other traffic, the other vehicles and Sergeant Johnson."  The evidence also
  showed that defendant's vehicle was only a short distance (some twenty-five
  feet) from Sergeant Johnson's body when defendant exited the vehicle and
  fled the scene.  Thus, the evidence was sufficient to support a finding
  that a reasonable investigation of the circumstances would have revealed
  Sergeant Johnson's injuries, which in turn supports the court's finding
  that defendant left the scene in callous disregard of the consequences of
  his actions. See White, 172 Vt. at 502, 782 A.2d  at 1193-94 (trial court's
  determination of aggravating and mitigating circumstances will be upheld if
  supported by credible evidence).  As the trial court explained, society's
  "sense of decency . . . is offended by a person being able to get away with
  bringing about such a violent crash and then just simply leaving it." 
  Accordingly, we conclude that the trial court did not improperly overlook
  mitigating evidence or abuse its discretion in imposing sentence on the
  count of leaving the scene of an accident where death resulted.

       Affirmed.           

                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice




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                                  Footnotes


FN1.  Under 13 V.S.A. § 5301(a)(4), " '[v]ictim' means a person who sustains
  physical, emotional or financial injury or death as a direct result of the
  commission or attempted commission of a crime or act of delinquency and
  shall also include the family members of a minor, incompetent or a homicide
  victim."  

FN2.  Under 13 V.S.A. § 5301(5), an 

    '[a]ffected person' means any of the following persons who have
    requested notification in writing from the court or the department
    of corrections:
     (A) Witnesses;
     (B) Jurors;
     (C) Family members who are not covered by subdivision (4) of this
    section;
     (D) Any other persons who demonstrate to the court that the
    release or escape of a defendant will constitute a threat of
    physical, emotional or financial injury or death.

FN3.  Under 23 V.S.A. § 1128, "[t]he operator of a motor vehicle who has
  caused or is involved in an accident resulting in injury to any person
  other than the operator, or in damage to any property other than the
  vehicle then under his or her control shall immediately stop and render any
  assistance reasonably necessary."