State v. Baldwin, 310-80

Decision Date10 December 1981
Docket NumberNo. 310-80,310-80
PartiesSTATE of Vermont v. William B. BALDWIN.
CourtVermont Supreme Court

Mark J. Keller, Chittenden County State's Atty., and James R. Crucitti and Jeffrey Cohen, Deputy State's Attys., Burlington, for plaintiff.

James M. Farrell and Joel W. Page of J.M. Farrell Associates, Burlington, for defendant.

Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

PECK, Justice.

Defendant William Baldwin was convicted after jury trial of operating a motor vehicle on a public highway in the Town of Colchester while under the influence of intoxicating liquor contrary to the provisions of 23 V.S.A. § 1201(a)(2). He appealed his conviction to this Court; we affirm.

A review of the record on appeal shows that on the evening of December 13, 1979, commencing at approximately ten o'clock, an officer of the Colchester Police Department, acting on information from a Burlington officer, followed a 1973 Mercury Montego along Heineberg Drive in Colchester, over the Heineberg Bridge and into the City of Burlington on Plattsburg Avenue, a total distance of about a quarter of a mile. The manner in which the Mercury ahead of him was being operated aroused the officer's suspicion. He testified that it crossed the highway center line "numerous times," there was a near collision with the bridge structure, and frequent changes in the rate of speed occurred; in the words of his testimony, "(T)he manner of operation was, as far as the travel speed, was accelerate and then slow down, accelerate and then slow down...."

Based on his observations the officer finally halted the vehicle at 10:08 P.M. as it turned into North Avenue from Plattsburg Avenue, also in Burlington, where he discovered the driver and sole occupant of the car to be the defendant. The officer testified that defendant's speech was slurred, there was a strong odor of intoxicants on his breath, and his eyes were bloodshot and watery. When defendant got out of his car the officer observed that he swayed noticeably. When asked for his driver's license, he had difficulty locating it in his wallet, and his performance of the routine dexterity tests was slow and inaccurate. At trial the officer was asked if, based on those observations, he had formed an opinion as to the condition of defendant. He responded, "Yes, I felt he was moderately impaired."

The officer requested defendant to submit to a breath test and he agreed. However, when asked to accompany the officer to the Colchester Police Department for that purpose, he objected, indicating he "did not want to go" to Colchester, but eventually complied with the request, even though two Burlington police officers had by that time arrived at the scene. Notwithstanding vigorous protestations of compulsion in his brief, we can determine only that in the first instance he "did not want to go" to Colchester but thereafter he did so, and the breath test was administered there at 11:05 P.M. after he had consulted by phone with his attorney. The results of the test indicated 0.24 per cent blood alcohol content at the time it was administered. Finally the officer testified that he had defendant under continual observation from the time the vehicle was stopped until the breath test was administered, and during that period defendant did not drink any alcoholic beverage.

In March of 1980, defendant filed pretrial motions which were denied by a judge who did not thereafter preside at the trial. These motions were three in number, a motion to dismiss for lack of a prima facie case, and two motions to suppress evidence, particularly the results of the breath test and the opinion based thereon. Both the two latter motions were essentially on the same grounds: the postulate that the Colchester Police Department, in the person of its officer, had no authority or jurisdiction to arrest defendant in, or remove him from, the territorial jurisdiction of the City of Burlington Police Department.

These motions were renewed at the time of trial, and during the course of the trial, generally in the form of objections as the State sought to adduce specific matters of evidence. In response the trial judge denied or overruled the protests, advising defendant in some instances that the issues raised had already been disposed of at the pretrial level and he was bound by these rulings, or that he was not going to reverse the earlier rulings of the judge who made them.

Defendant objected also to testimony by the State's expert witness that in his judgment, given a blood alcohol content of 0.24 as shown by the breath test, the defendant would have been impaired at the time of operation. The objections went both to the expert's qualifications, and to the speculative or conjectural nature of the opinion. The objections were overruled.

I.

On appeal defendant claims error in the court's denial of his motions to suppress evidence. He urges strenuously that the pretrial court's conclusions, adopted inferentially by the trial judge, that the officer had the right, under the doctrine of fresh pursuit as defined by 23 V.S.A. § 4(12), to stop defendant outside of his own territorial jurisdiction and subsequently to arrest him there and return him to Colchester, was error. Assuming this to be so, he argues that the breath test was illegally obtained evidence and should have been suppressed, together with the expert testimony based thereon, as a violation of the unauthorized search and seizure clause of the Fourth Amendment to the Federal Constitution. State v. Barr, 126 Vt. 112, 118, 223 A.2d 462, 467 (1966).

Defendant contends that the common law doctrine of fresh pursuit, with he claims further still controls in this state, applies only to felonies. Accordingly, he argues, the offense being a misdemeanor, a police officer of the Town of Colchester had no authority to take any action in the City of Burlington, or transport him back into Colchester.

We do not find that this Court has ever considered the extra-territorial powers of an enforcement officer under the common law of fresh pursuit, although an early case, Bromley v. Hutchins, 8 Vt. 194 (1836), skirts the question in discussing the powers of a sheriff from another state to pursue into Vermont and recapture here a prisoner who had escaped from his custody on civil process. But its application to felonies only is not everywhere recognized There is another common law doctrine of fresh pursuit whereby a peace officer may arrest, without a warrant, for misdemeanors committed in his presence within a reasonable time thereafter. The fresh pursuit affects only the reasonableness of the lapse of time between the commission of the offense and the arrest therefor.

Gattus v. State, 204 Md. 589, 600-01, 105 A.2d 661, 666 (1954).

It appears that the common law, like its statutory in-laws, is always subject to judicial interpretation. It is, however, unnecessary to define here the limits of common law fresh pursuit in Vermont. Defendant asserts the doctrine has not been modified by statute in this state notwithstanding the definitional provision of 23 V.S.A. § 4(12), which reads:

"Fresh pursuit" as used in this chapter includes fresh pursuit as defined by the common law, and also the pursuit of a suspected violator of the criminal laws or other laws of this state, for which he is, or might be, subject to arrest, by an enforcement officer. Fresh pursuit as used in this chapter is not necessarily instant pursuit, but pursuit without unreasonable delay.

We disagree with defendant as to the effect of this statutory subdivision, and hold that by virtue of its provisions, if not otherwise under common law, the doctrine of fresh pursuit includes the circumstances of this case.

In urging his position, defendant points to the phrase in § 4(12), which reads, "as used in this chapter," to support the proposition that this definition of fresh pursuit has no application outside of the statutory chapter in which it appears; 23 V.S.A. Chapter 1. This argument might be persuasive or even dispositive were it not for the dilemma it creates. Similar language in other enactments generally does limit the scope of a statutory definition, speaking the legislative intent clearly. In this particular case, however, if the definition of fresh pursuit is limited to Chapter 1, it has no application at all, and thus becomes meaningless. Nowhere else in the chapter does the defined phrase appear, nor do we find any other provision in the chapter to which the definition might apply.

Undoubtedly there is not here a masterpiece of legislative clarity. The intent of the legislature is mysterious at best. Whenever such a situation arises we must seek for a solution through the process of statutory construction, having always in mind that the very purpose and objective of the process and of our function is to determine, as best may be, and give effect to the apparent intent of the legislature. Loeb v. Loeb, 118 Vt. 472, 483, 114 A.2d 518, 526 (1955).

Defendant recognizes the problem but takes the position that 23 V.S.A. § 4(12) is presently in a sort of limbo and clearly "contemplates further legislative enactment utilizing the term defined if it is to have operative effect." This is another way of saying he urges us to apply the familiar plain meaning rule which provides that when the meaning of a statute is plain on its face it must be enforced in accordance with its express terms. Christie v. Dalmig, Inc., 136 Vt. 597, 599, 396 A.2d 1385, 1387 (1979). This rule is bolstered by the presumption that the ordinary meaning of statutory language was intended by the legislature. Donoghue v. Smith, 119 Vt. 259, 263, 126 A.2d 93, 96 (1956). Defendant also invokes the rule that a statute will not be construed to effectuate a change in the common law unless the legislative intent to do so is clearly and plainly expressed or results by necessary implication. Record v. State...

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