State v. Davis, 188-72
| Decision Date | 02 April 1974 |
| Docket Number | No. 188-72,188-72 |
| Parties | STATE of Vermont v. Milton D. DAVIS. |
| Court | Vermont Supreme Court |
M. Jerome Diamond, State's Atty., for the State.
Robert Edward West, Defender Gen., and George E. Rice, Jr., Deputy Defender Gen., for defendant.
Before BARNEY, SMITH, KEYSER and DALEY, JJ., and BILLINGS, Superior Judge.
This defendant was charged with operating a motor vehicle while intoxicated. The jury found him guilty. During the trial a magnetic tape recording of part of a conversation between the police chief of Wilmington and the defendant was played to the jury. The defendant rests his claims of error on this event. At hearing, a partial transcript was tendered. After a conference this Court agreed that fair disposition of the case could be made only in the presence of a full record, and disposition was stayed pending its preparation. It having now been filed, the matter is ready for decision.
The defendant came to the attention of the Wilmington police when a motorist complained about being run into by a car bearing a certain license. Two officers patrolling in a cruiser very shortly found the car involved, with the defendant at the wheel, attempting to extricate himself from a snowbank at the edge of a parking lot. The front part was in the highway and the rear entangled in a ridge of snow left by a plow. The officers placed him under arrest, testifying that the inside of the car smelled of alcohol, that there were bottles 'all over the place', that the defendant's speech was slurred, and that he had difficulty in walking and keeping his balance. The defendant was the car's only occupant. He was taken to the police station and there interviewed by the police chief. It is the tape recorded portion of that interview which the jury was allowed to hear that the defendant now claims was fatally prejudicial.
The tape was not offered for its verbal content, but to evidence the slurred manner of talking and other speech characteristics of the defendant at the time he was brought in to the police station. This was intended to be in corroboration of the testimony of the police chief; that in his opinion, the defendant's speech, among other things, demonstrated that the defendant was greatly itoxicated. Each of the four witnesses for the prosecution, the complaining motorist, the two police officers, and the police chief, testified to his observation of the defendant's physical condition. Each either described him as having the physical indications of intoxication, including alcoholic odor, unsteady walk, flushed face and slurred speech, or characterized him as drunk, or both. The defendant conceded that he had had at least five beers, but argued that his own conduct as he testified to it and the span of time over which he had had them-some three and three quarters hours-militated against a finding that he was so under the influence as to have his driving ability impaired.
The corroborating portion of the tape consisted of the first two and one half minutes of the recording, the balance being excluded because it dealt with questions and responses relating to the taking or refusal of chemical tests for blood alcohol levels. The fact that the defendant had used vulgar and profane language was made known to the jury through the testimony of the police chief before the tape was played. Needless to say, it became very evident when it actually was played.
The trial judge instructed the jury in connection with the recording of the defendant's voice that they must consider whether the tape exhibit was the authentic tape, whether it was a 'proper and good recording' of the conversation that took place, and then limited their use of it to the purpose 'only of determining Mr. Davis's condition at the time he was being interviewed by Chief Goodnow.' The tape was then played, but because of the exclusion of later portions on the tape, it was not allowed to be taken to the jury room.
Under these instructions, the voice...
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