State v. Boise, No. 83-475
| Docket Nº | No. 83-475 |
| Citation | 146 Vt. 46, 498 A.2d 495 |
| Case Date | June 07, 1985 |
| Court | United States State Supreme Court of Vermont |
Page 495
v.
Bryan R. BOISE.
[146 Vt. 47]
Page 496
John T. Quinn, Addison Co. Deputy State's Atty., Middlebury, for plaintiff-appellee.Robert P. Keiner, James A. Dumont, and Bonnie Barnes, Legal Intern (on brief), of Sessions, Keiner & Dumont, Middlebury, for defendant-appellant.
Before [146 Vt. 46] ALLEN, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
[146 Vt. 47] ALLEN, Chief Justice.
Upon appeal from a conviction of driving while intoxicated, 23 V.S.A. § 1201(a)(2), defendant contends that the court's instructions to the jury removed from its consideration an essential element of the crime, and unfairly singled out the defendant's testimony for comment as to its credibility. The defendant's conviction is reversed and the cause remanded for a new trial.
The testimony at trial indicated that the state police stopped the defendant after observing him drive erratically on Route 7 and Creek Road in Middlebury. The defendant was taken to the State Police barracks where a breath sample was taken, which was subsequently found to indicate a blood alcohol content of .13 percent at the time of operation. The arresting officer testified that both Route 7 and Creek Road are public highways.
The defendant's first claim of error is that the court's instructions to the jury removed from its consideration an essential element of the offense, that the operation of the automobile was upon a public highway. The court stated:
Now, as to the first two [elements] there is no dissension [sic], I don't think, between counsel. There's no question but what the Defendant, by his own admission, was operating a motor vehicle. As a matter of fact, I instruct you that Route 7 and the Creek Road so called are public highways within the meaning of the definitions of the Vermont statutes.
After discussing the third element, intoxication, the court stated:
[146 Vt. 48] This [third] element like the other elements normally would still have to be proved by the State beyond a reasonable doubt [despite the permissible inference from the blood alcohol content test]. The other two elements are conceded.
Following these instructions, the defendant's counsel objected, stating, "we have not entered into any stipulation those are public highways." The court replied, "I said as a matter of law they are public highways. Take judicial notice of it. Also was testimony from the police...
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State v. Jackowski, No. 04-455.
...conceded to operating his vehicle on a public highway—was not harmless because it "removed an element from the jury's consideration." 146 Vt. 46, 48, 498 A.2d 495, 496 (1985). Despite the State's argument to the contrary, we found that the instruction had improperly relieved the State of it......
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State v. Mann, (AC 27779) (Conn. App. 3/2/2010), (AC 27779).
...917 P.2d 980, 986 n.11 (Okla. Crim. App. 1996), cert. denied, 519 U.S. 1096, 117 S. Ct. 777, 136 L. Ed. 2d 721 (1997); State v. Boise, 146 Vt. 46, 49, 498 A.2d 495 (1985). At the same time, the defendant ignores a separate series of cases holding to the contrary. See, e.g., Bell v. State, 2......
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State v. Roy, No. 87-536
...that this Court has already adopted such a standard in State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986), and State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985). However, Boise and Noyes involved circumstances where the trial court informed the jury that an element had been......
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State v. Lambert, No. 01-390.
...of the offense has been conceded is plain error per se, see State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986); State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985), we have specifically rejected applying plain error per se to omission of elements of the offense from the charg......
-
State v. Jackowski, No. 04-455.
...conceded to operating his vehicle on a public highway—was not harmless because it "removed an element from the jury's consideration." 146 Vt. 46, 48, 498 A.2d 495, 496 (1985). Despite the State's argument to the contrary, we found that the instruction had improperly relieved the State of it......
-
State v. Mann, (AC 27779) (Conn. App. 3/2/2010), (AC 27779).
...917 P.2d 980, 986 n.11 (Okla. Crim. App. 1996), cert. denied, 519 U.S. 1096, 117 S. Ct. 777, 136 L. Ed. 2d 721 (1997); State v. Boise, 146 Vt. 46, 49, 498 A.2d 495 (1985). At the same time, the defendant ignores a separate series of cases holding to the contrary. See, e.g., Bell v. State, 2......
-
State v. Roy, No. 87-536
...that this Court has already adopted such a standard in State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986), and State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985). However, Boise and Noyes involved circumstances where the trial court informed the jury that an element had been......
-
State v. Lambert, No. 01-390.
...of the offense has been conceded is plain error per se, see State v. Noyes, 147 Vt. 426, 428, 519 A.2d 1152, 1153 (1986); State v. Boise, 146 Vt. 46, 48, 498 A.2d 495, 496 (1985), we have specifically rejected applying plain error per se to omission of elements of the offense from the charg......