State v. Kinney

• Decision Date: 22 July 2011
• Docket Number: No. 09–265.,09–265.
• Parties: STATE of Vermontv.Jeffrey R. KINNEY.
• Court: Vermont Supreme Court

27 A.3d 348

2011 VT 74

STATE of Vermont

v.Jeffrey R. KINNEY.

No. 09–265.

Supreme Court of Vermont.

July 22, 2011.

Michael S. Munson and Robert F. Plunkett, Bennington County Deputy State's Attorneys, Bennington, for Plaintiff–Appellee.Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.DOOLEY, J.

¶ 1. A jury convicted defendant Jeffrey Kinney of driving while intoxicated, third offense, and attempting to elude an officer while operating a vehicle. On appeal, defendant argues: (1) the trial court erred in admitting defendant's refusal to take a preliminary breath test; (2) the prosecutor, in closing, impermissibly injected personal opinion about defendant's credibility and commented on defendant's failure to testify; and (3) the State failed to introduce sufficient identity evidence to support the verdict. We affirm.

¶ 2. The facts may be summarized as follows. A Bennington police officer was patrolling in his cruiser at about ten o'clock at night when he observed an all-terrain vehicle (ATV) being driven on the street in Bennington. Although it was dark, the officer was able to observe the driver, whom he recognized as defendant from prior contacts and from his knowledge that defendant owned that particular model of ATV.

¶ 3. As the ATV sped away, the officer followed with his blue lights flashing and siren sounding. The officer testified that he saw a profile of the operator's face when the ATV made a turn onto another road and again when the ATV fishtailed, and that there was sufficient illumination to observe that it was defendant. At trial, the prosecution played a video recording of the pursuit taken by a fixed camera located on the officer's cruiser. The camera, activated when the blue lights are turned on, is located near the rearview mirror and films straight ahead from its mounted position. Although the State later acknowledged that the video, with its “grainy, dark” image, did not offer a good view of the ATV operator, the officer agreed that he “[got] a better look at the [ATV] at that intersection than what [could be seen] on the video” from its fixed position.

¶ 4. The ATV ultimately went over an embankment and the police pursuit continued on foot. Another officer testified that he found the abandoned two-seat ATV in the woods, followed voices, and found two men, defendant and another individual. Defendant appeared to be intoxicated; he was unsteady on his feet, had slurred speech, and smelled of alcohol. Defendant's clothes generally matched the clothes worn by the driver of the ATV. Defendant told the officer that a third person named Jason Webb had been driving the ATV, and had since taken off running. Defendant also said that he was in the area for a bonfire. The officer saw no signs of a bonfire, and no third person was ever located in the area. The officers recovered the key to the ATV from defendant's pocket.

¶ 5. Defendant was asked at the scene to take a preliminary breath test (PBT) but declined. A later-administered Datamaster test measured defendant's blood alcohol level at .208 and .221, indicating levels of .232 and .245—three times the legal limit—at the time of operation. The jury returned a verdict of guilty on the charges of driving while intoxicated, third offense, and attempting to elude, and defendant was subsequently sentenced to two to five years imprisonment. This appeal followed.

¶ 6. Defendant first contends the court erred in admitting the investigating officer's testimony that defendant declined to submit to the PBT. The State maintains that the claim was not properly preserved and that the evidence was admissible in any event. Whatever the merits of these arguments, we conclude that the testimony was harmless beyond a reasonable doubt, and therefore provides no basis for reversal. As we have often held, error in the admission of evidence does not compel reversal of a criminal conviction where it is clear beyond a reasonable doubt that the error was harmless, considered in light of the strength of the State's case apart from the offending evidence and the strength of the offending evidence itself. State v. Kulzer, 2009 VT 79, ¶¶ 16–17, 186 Vt. 264, 979 A.2d 1031. Both factors compel affirmance here.

¶ 7. The officer testified that he was able to see the ATV driver on more than one occasion during the pursuit and was certain of defendant's identity; this evidence was unequivocal. That the surveillance videotape from the camera on top of the officer's cruiser failed to show the driver as clearly as the officer's visual observations does not seriously undermine this testimony, as the evidence showed that the camera's perspective was stationary and the officer's was not. Thus, the officer's best view of the driver occurred when the ATV slowed and took a sharp turn and the officer could see the side of the driver's face. The view could not be captured by the stationary video camera.

¶ 8. Even apart from eyewitness identification, the circumstantial evidence was compelling. The ATV matched the one owned by defendant; the officer's description of the driver's clothing matched that worn by defendant; and defendant was found with the key to the ATV in his pocket. Defendant's claims that another person was driving the ATV and that he was attending a bonfire had no evidentiary support beyond defendant's mere assertion. In short, the evidence identifying defendant as the driver was overwhelming. A limited videotape and a claim that the real driver was a third man who was never found do not undermine this conclusion.

¶ 9. As noted, in assessing whether any error was harmless, we must view the strength of the proper evidence in relation to the strength of the evidence claimed to be inadmissible. The evidence in dispute consisted of a brief question and answer in the middle of the investigating officer's extensive trial testimony. The subject was not mentioned again in the testimony of the remaining witnesses, and neither party brought it up in closing argument. Thus, considered in the context of the trial as a whole, and the substantial evidence of guilt, the testimony was clearly harmless beyond a reasonable doubt, and does not warrant reversal of the judgment. See State v. Curavoo, 156 Vt. 72, 75, 587 A.2d 963, 965 (1991) (holding that introduction of evidence of defendant's refusal to take PBT was harmless error, if error at all, because “the remaining evidence overwhelmingly establish[ed]” the required elements of the charge).

¶ 10. Defendant's remaining claims relate to the prosecutor's closing argument. He contends the prosecutor improperly injected his personal views of defendant's guilt during closing argument in stating that defendant “lied” to the police about several matters, including defendant's claim that a third person was the ATV operator. He also contends the prosecutor improperly commented on his right to remain silent in observing that defendant failed to “offer any explanation as to where this third person had gone” or other details “about the identity and the whereabouts of this mystery third person.” Defendant acknowledges that he failed to object to any of the statements below, and that we review solely for plain error to determine whether the circumstances are so “exceptional [that] ... a failure to recognize error would result in a miscarriage of justice, or ... strike[ ] at the very heart of the defendant's constitutional rights.” State v. Yoh, 2006 VT 49A, ¶ 39, 180 Vt. 317, 910 A.2d 853 (quotation omitted).

¶ 11. The alleged errors fall short of this exacting standard. Although we have cautioned against statements that might be construed as expressions of personal belief that the defendant was a liar, the brief statements at issue here were made in the context of a general and impersonal critique of the veracity of defendant's story. See State v. Gates, 141 Vt. 562, 567, 451 A.2d 1084, 1086 (1982) (observing that prosecutor's remarks went beyond permissible “general attack on veracity, consistency, or bias”). Indeed, there is nothing here to suggest that the prosecutor was expressing any personal view or belief in defendant's veracity. Rather, the record shows that the prosecutor simply compared defendant's statements made at the scene with the surrounding evidence to demonstrate the obvious incongruities: defendant claimed that a third individual was the driver but, as the prosecutor accurately noted, defendant did not explain “where this third person had gone,” and no third person was observed by the officer during the pursuit or was visible in the video recording; defendant claimed to be in the woods for a “bonfire” but no bonfire was found in the vicinity; defendant claimed that a friend had the key to the ATV when, in fact, the key was found in defendant's pocket. The prosecutor was relying on the evidence, not his personal beliefs, to characterize defendant's remarks. Cf. State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330, 333 (1987) (finding error in prosecutor's statements that “I think ... [complainant's] story ... is the truth” and “I believe the believable testimony here”).

¶ 12. Moreover, this was not a pure “credibility contest” between the defendant and his accuser, as in State v. Rehkop, 2006 VT 72, ¶ 2, 180 Vt. 228, 908 A.2d 488, where we found that the prosecutor not only “blatantly” stated his personal belief that defense witnesses were lying, but also that his comments may also have affected the verdict. Id. ¶ 38; see also State v. Francis, 151 Vt. 296, 300, 561 A.2d 392, 394 (1989) (noting danger of prosecutor's personal expression of belief that defendant is lying where case turns strictly on credibility assessments). Here, as noted, the circumstantial evidence that defendant was the operator of the ATV was overwhelming, and we cannot conclude that any conceivable error in the...