State v. McGrath, 78-71

CourtUnited States State Supreme Court of Vermont
Citation296 A.2d 636,130 Vt. 400
Docket NumberNo. 78-71,78-71
PartiesSTATE of Vermont v. James E. McGRATH.
Decision Date03 October 1972

Patrick J. Leahy, State's Atty., and William O. Wuester, Deputy State's Atty., for plaintiff.

Langrock & Sperry, Middlebury, for defendant.

Before SHANGRAW, C.J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

This is an appeal from the conviction of operating a vehicle while under the influence of intoxicating liquor in violation of 23 V.S.A. § 1201. Trial by jury on April 7, 1971, in the District Court of Vermont, Unit No. 2, Chittenden Circuit, resulted in a verdict of guilty. Defendant appealed engaging different counsel to represent him.

Prior to trial, counsel for the state and the then counsel for the defendant entered into the following stipulation of facts:

'1. That there was a blood sample taken from the person of James McGrath at the Mary Fletcher Hospital on March 18, 1971, on or about 1:07 A.M. in the early morning hours of said date. This blood sample was validly taken from James McGrath's body and a blood test was validly administered pursuant to acceptable medical standards and practice.

2. That the test results of the taking of the blood from the said James McGrath on March 18, 1971, or (sic) or about 1:07 A.M. at the Mary Fletcher Hospital in the early morning hours of said date was 0.30 percent alcohol by weight of his body's blood.

3. The chain of custody as concerns the blood sample taken from the same James McGrath is unquestioned as concerns the reliability of said chain of custody.

4. That the test result of James McGrath as indicated of 0.30 percent alcohol by weight of his body's blood, which blood sample was validly taken as stipulated, placed the said James McGrath, the respondent herein, under the influence of intoxicating liquor on or about 1:07 A.M.'

The main thrusts of this appeal relate to the admission into evidence of the foregoing stipulation showing the result of the blood test; whether the admission of the stipulation violated constitutionally protected rights of the defendant; and certain errors claimed to have been committed in the conduct of a reasonableness hearing as provided in 23 V.S.A. § 1205 prior to the trial.

Defendant's first claim of error centers around the admissibility into evidence of the results of the blood test as shown by the stipulation. He argued below prior to the introduction of any evidence that effective January (sic-July) 1, 1970, 'any test taken pursuant to the statute must be tested at the Health Lab.' He stated that the test was made at the hospital laboratory, a fact not then, but later, shown by the evidence, and, therefore, he contended that the test was not admissible.

The stipulation was filed in the case five days before trial. It stood as an unequivocal concession of all of the facts recited therein. Thus, it had the force of a 'judicial admission' and dispensed with proof of those facts by the state as such admission was conclusive. Wiley v. Rutland R. Co., 86 Vt. 504, 508, 86 A. 808 (1913). The court overruled the defendant's contention in reliance upon the stipulated facts. As the case then stood, the court's ruling was without error.

Thereafter, the stipulation was read into the record before the jury by counsel for the state in his opening statement to the jury without objection by the counsel for the defendant. The state again referred to it during its examination of Dr. Lawrence Harris, the state pathologist, without objection by defendant's counsel. The court also included the facts in the stipulation in its charge to the jury to which no exception was taken. In fact, at no time did counsel for the defendant object to the contents of the stipulation being presented to the jury at trial. Furthermore, defendant's counsel took advantage of the time and result of the test as stated in the stipulation in his cross-examination of Dr. Harris.

Established rules of appellate procedure limit appellate review to questions raised at the trial.

In State v. Ladabouche, 127 Vt. 171, 174, 243 A.2d 769, 771-772 (1968) this Court held that:

'An objection to evidence must be made at the time it is offered. Where evidence comes in without objection, all right of objection is waived. No question may be brought to this Court except upon which it is made to appear that the trial court has had fair opportunity to pass judgment.' Citations omitted.

Although the counsel for the defendant argued against the admissibility of the stipulation before the district judge prior to trial, he did not offer any objection to the stipulation becoming a part of the record and read into evidence before the jury.

In State v. Hedding, 122 Vt. 379, 172 A.2d 599 (1961), an appeal was taken from a conviction by jury of operating a motor vehicle while under the influence of intoxicating liquor. The respondent claimed the trial court erred in allowing evidence to be introduced into the case concerning his refusal to take a chemical test. The respondent further argued that he might well be condemned by inference for exercising the right given by law to refuse the test. The Court answered this point in stating at 122 Vt. at 382-383, 72 A.2d at 601:

'But the weakness of the position of this respondent upon the question he presents is that he allowed evidence that he refused to take such tests, as well as evidence on the nature of the tests that were offered him, to come into the case without objection. . . . In the absence of proper objection made, the evidence so received was for the consideration of the jury.'

See also State v. Clark, 118 Vt. 131, 135, 101 A.2d 868 (1954).

On the exact point of admissibility of a questionable blood test introduced into evidence without objection, this Court said in State v. Ball, 123 Vt. 26, 31-32, 179 A.2d 466 (1962):

'. . . (W)e are constrained to say . . . that the statutes require that blood alcohol tests be made according to their provisions for them to be admissible in prosecutions for drunken driving, unless the respondent . . . does not object to the admission into evidence of test results.' (Emphasis added.)

The defendant argues that the results of the blood test should have been barred from the case since there was an obvious misrepresentation as to its future use. A careful search of the transcript in the criminal case fails to lend any support to this assertion. It appears this point arises only from the testimony in the reasonableness or summary hearing. The record in that proceeding is separate and distinct from, and not a part of, the criminal case. Thus, it is not before us for consideration. As we held in State v. Dellveneri, 128 Vt. 85, 88, 258 A.2d 834 (1969), and McGarry v. Costello, 128 Vt. 234, 239, 260 A.2d 402 (1969), the summary hearing is in the nature of an administrative proceeding and is the determination of a civil matter involving only the question of whether the defendant should have his license suspended for six months. It was also there said that the questions...

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8 cases
  • State v. Kasper
    • United States
    • United States State Supreme Court of Vermont
    • April 5, 1979
    ...We disagree. "A constitutional right is not incapable of being waived by a (defendant) in a criminal proceeding." State v. McGrath, 130 Vt. 400, 405, 296 A.2d 636, 639 (1972). The Vermont Rules of Criminal Procedure require that this type of objection be raised at a pretrial hearing. See V.......
  • Matter of Starcher, 23681.
    • United States
    • Supreme Court of West Virginia
    • January 23, 1998
    ...1085 (1987); State v. Smyth, 121 R.I. 188, 397 A.2d 497 (1979); State v. Edgeworth, 239 S.C. 10, 121 S.E.2d 248 (1961); State v. McGrath, 130 Vt. 400, 296 A.2d 636 (1972); State v. Irving, 24 Wash.App. 370, 601 P.2d 954 (1979); and State v. Aldazabal, 146 Wis.2d 267, 430 N.W.2d 614 (1988). ......
  • State v. Diamondstone, 63-73
    • United States
    • United States State Supreme Court of Vermont
    • April 2, 1974
    ...testimony in cross-examination for his own purposes. See State v. Arbeitman, 131 Vt. 596, 313 A.2d 17, 19 (1973); State v. McGrath, 130 Vt. 400, 406, 296 A.2d 636 (1972). The admission of the testimony of which the defendant complains was not error. The defendant's final point briefed is th......
  • State v. Blaine, s. 49-73
    • United States
    • United States State Supreme Court of Vermont
    • June 3, 1975
    ...heart of respondent's constitutional rights will we examine a claim of error not made below. This is not such a case. State v. McGrath, 130 Vt. 400, 296 A.2d 636 (1972). Respondent's other claim of error is to the effect that the court, in its charge, told the jury that they could consider ......
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