State v. Neisner

• Decision Date: 30 December 2010
• Docket Number: No. 09–395.,09–395.
• Court: Vermont Supreme Court
• Parties: STATE of Vermontv.Melvin B. NEISNER.

16 A.3d 597

2010 VT 112

STATE of Vermont

v.Melvin B. NEISNER.

No. 09–395.

Supreme Court of Vermont.

Dec. 30, 2010.

Stuart G. Schurr, Department of State's Attorneys, Montpelier, and Charles Romeo, Rutland County Deputy State's Attorney, Rutland, for Plaintiff–Appellee.William A. Nelson, Middlebury, for Defendant–Appellant.Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and BENT, Supr. J., Specially Assigned.SKOGLUND, J.

¶ 1. Following a hit-and-run accident, a jury found defendant guilty of grossly negligent operation of a motor vehicle, leaving the scene of an accident, giving false information to a law enforcement authority, and impeding a public officer. He appeals on several grounds, claiming the trial court erred in: (1) allowing the prosecution to charge him twice for the same offense when both the charge of giving false information to a police officer and the charge of impeding an officer require the same elements of proof; (2) imposing a thirty-nine-day sentence for the false information charge in violation of his constitutional right to remain silent; (3) denying his motion for acquittal based on insufficient evidence to support the impeding an officer charge; (4) denying his motion for acquittal when the evidence would support a showing of only negligent operation of a vehicle, not gross negligence; and (5) permitting prosecution on an incomplete and vague information, which omitted an essential element of leaving the scene of an accident. Holding that prosecution for the false information and impeding charges did violate defendant's constitutional right to be free from double jeopardy, we vacate his conviction for giving false information to a police officer and its resulting sentence. We affirm the remaining convictions.

¶ 2. The operative facts in this case are largely uncontested and are laid out below with additional facts following in the body of the opinion.¹ Defendant, a lawyer in Rutland County, was driving to his office alone one Saturday evening in September 2007. Turning north onto the Killington Access Road, a three-lane road with two north-bound lanes, he approached two motorcycles, which were traveling slowly and occupying both north-bound lanes. Defendant moved to pass the motorcycles, pulling into the left lane directly behind one of the riders—testimony conflicts as to how close to that motorcycle he came, possibly within eighteen inches. The rider in the left lane merged to the right, ahead of the second motorcycle, allowing defendant to pass. Defendant proceeded past both riders and pulled into the right lane ahead of the lead motorcycle, the rider who had been in the left lane. Less than ten seconds later, and without any clear provocation, defendant hit his brakes. The lead motorcycle braked and skidded before colliding with the rear of defendant's SUV. The rider struck defendant's vehicle and was thrown from his motorcycle. Defendant heard and felt the collision but continued to drive up the road and away from the accident without stopping. The second motorcycle rider continued after defendant's vehicle, approaching close enough to obtain the license plate number. A few minutes later, defendant drove back past the accident scene, headed in the opposite direction. Again, he did not stop.

¶ 3. Shortly after the accident, a constable of the Town of Killington arrived at the scene and spoke with the motorcyclists. Recognizing defendant's license plate number—the two had known each other for years—he waited until the state police trooper who had been assigned the case arrived at the accident; then the constable drove to defendant's home. There, he met defendant's wife and defendant, who looked nervous and disheveled. The constable asked to examine their car and noted that there was damage to the left rear. At one point when the constable was alone with defendant's wife, she told him, “I swear to God I wasn't driving.” The constable eventually stepped outside to wait for the investigating state police trooper. When the trooper arrived, testimony conflicts as to whether the constable informed the trooper of defendant's wife's denial or failed to tell him about it for several more weeks.

¶ 4. Defendant let the trooper into the home and, in front of his wife and the constable, immediately told the trooper that his wife had been involved in an accident. Defendant's wife remained silent. The trooper went to view defendant's vehicle in the garage and took photographs of it. In response to questioning about what happened, defendant indicated that his wife had been driving them both in the vehicle that evening, and they had been tailgated by two motorcycles. He explained that the motorcycles were close enough behind their car that he could not see them in the rearview mirror. He then corrected himself and said that he could not see them when he turned around, suggesting that he was in the passenger's seat, not the driver's seat. Defendant said his wife had “stepped on the brakes, perhaps a bit too hard,” and they had felt something hit them from behind. The trooper asked him, “She stepped on the brakes too hard, or the brakes were stepped on too hard?” to which defendant responded, grinning, “they were stepped on too hard” without indicating who had done it. Defendant also explained that he had told his wife not to stop at the accident scene and to drive home in violation of the law, even though he was a practicing attorney.

¶ 5. In speaking with defendant, the trooper noticed that defendant's eyes were glassy or watery, and defendant indicated that he had been drinking alcohol earlier in the day, but not immediately before the crash.² When the trooper asked if he could speak with defendant's wife, defendant stated that she was not going to make any statements. The trooper then asked both defendant and his wife to take a preliminary breath test. They both submitted to the test. Defendant registered a .123% alcohol concentration and his wife registered a .00%. The trooper then asked defendant to swear that what he had told the trooper that evening was true. Defendant declined. Based on defendant's accusation and the absence of clear conflicting evidence, the trooper took defendant's wife into custody, brought her to the state police barracks in Rutland, and cited her for leaving the scene of an accident. She was released later that night.

¶ 6. The trooper then returned to the accident scene and met with an eyewitness to the crash who had initially reported it to emergency services. The witness, an employee at a local tavern, said he had watched defendant's car attempt to pass and then finally pass the two motorcycles before cutting in front of them, braking “roughly,” coming to a complete stop, and causing the lead motorcycle to strike the vehicle's rear end. Defendant then sped away. The witness stated that the driver of the vehicle was a man, who he saw drive back past the accident scene heading in the opposite direction a few minutes after the crash. Over the following days, the trooper took photographs of the roadway and made other physical observations about the accident, which he put in his official report.

¶ 7. Five weeks later, following subpoenas for an inquest into the accident served on defendant and members of his family, defendant appeared at the police station with his attorney and gave a formal statement to the investigating trooper. In the statement defendant admitted to driving the car involved in the crash, contrary to his earlier statement falsely identifying his wife as the driver. He described a tense interaction between himself and the motorcyclists leading up to the crash. He explained that he felt threatened and decided to “touch” his brakes when the two motorcycles were tailgating him. He said he felt an impact in the rear of the vehicle but “saw no accident, no motorcycle or car in the road, and ... felt as if [he] had slowed them down.” He then turned around at his office having “th[ought] better of the situation” and upon approaching the accident scene and seeing “two or three vehicles on the side of the road” he “panicked at that point” and drove home. He said he feared for his safety, thinking that the motorcyclists were “road-raged” and “would hurt [him] if [he] stopped.” He was subsequently charged with the aforementioned crimes.

¶ 8. At trial defendant offered one witness, an accident reconstruction expert, in his defense. The expert testified that based on his calculations defendant and the motorcycles had been driving over forty miles an hour, and defendant had decelerated by ten miles an hour at the point in time when the motorcycle struck his car. The expert noted “[t]here was no physical evidence at the scene to indicate that the brakes were locked,” which he interpreted as indication that defendant had not hit his brakes hard. The jury convicted defendant of giving false information to a law enforcement officer, impeding a public officer, grossly negligent operation of a motor vehicle, and leaving the scene of an accident.³ He appeals.

I.

¶ 9. Defendant's first claim on appeal is that the trial court erred in denying his pretrial motion to dismiss the charge of giving false information to a law enforcement officer in violation of 13 V.S.A. § 1754(a). Defendant argues that the false information charge, alleging that he “knowingly [gave] false information to a[ ] law enforcement officer with purpose to implicate another,” 13 V.S.A. § 1754(a), and the impeding a public officer charge, alleging that he “hinder[ed] a[ ] ... law enforcement ... officer acting under the authority of this state or any subdivision thereof,” 13 V.S.A. § 3001(a), punish him twice for the same offense in violation of the protection afforded him under the Double Jeopardy Clause of the United States Constitution. We agree and vacate his conviction for giving false information to a police officer.

¶ 10. At a hearing on defendant's motion to dismiss the...