State v. Desjardins, 54-81

• Decision Date: 08 November 1982
• Docket Number: No. 54-81,54-81
• Citation: 142 Vt. 255,454 A.2d 1230
• Parties: STATE of Vermont v. Robert E. DESJARDINS.
• Court: Vermont Supreme Court

Page 1230

454 A.2d 1230

142 Vt. 255

STATE of Vermont v. Robert E. DESJARDINS.

No. 54-81.

Supreme Court of Vermont.

Nov. 8, 1982.

Susan L. Fowler and Dena Monahan, Chittenden County Deputy State's Attys., Burlington, and Robert Andres, Law Clerk, on the brief, for plaintiff-appellee.

Andrew B. Crane, Defender Gen., William A. Nelson, Appellate Defender, and Nancy E. Kaufman, Acting Appellate Defender, Montpelier, for defendant-appellant.

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

BARNEY, Chief Justice.

The defendant was convicted of simple assault after a trial by jury. He now appeals, claiming the court erred in instructing the jury. At issue is the legality of the search of defendant's car, a search which turned confrontational and ultimately precipitated the assault. For reasons which appear herein, we condemn the aggressive actions of the Essex Police Department but, finding no reversible error, affirm the trial court order.

Most of the events preceding the altercation between the defendant and three Essex police officers are undisputed. The defendant, while on his way with his infant daughter to pick up his wife from a bingo game, was spotted and eventually stopped by one officer for defective equipment: an obstructed license plate. The officer was apparently misinformed by radio that the license plates were not assigned to the defendant's 1971 Chrysler Imperial. In any event, the officer radioed for a backup on the basis of that misinformation. While checking the defendant's license and registration, the officer noticed an empty holster and box of ammunition in the open glove compartment and a rifle partially covered on the back seat.

During the license verification, two more police cruisers arrived, one carrying a sergeant who then became the senior officer at the scene. Although the defendant was neither frisked nor placed under arrest, the sergeant proceeded to search the interior of defendant's car with his flashlight. The defendant, who by now had received a clean bill on all counts--the license and registration were valid, there was no revolver for the empty holster and the rifle was unloaded--protested the search. At this point, what transpired is not completely clear. Apparently, the sergeant told the defendant that the police had a legal right to search the car and that such a search was standard department policy. While the defendant became increasingly upset, the sergeant continued scanning the car with his four cell flashlight. At one point, the sergeant even shined the light into the baby's eyes and caused the baby to cry.

Regretfully, the sergeant continued in a manner which we can only describe as antagonistic. Despite protests by the defendant and his pregnant wife, who by now had walked over from the bingo game and was trying to calm the baby, the sergeant shined the light in the defendant's face and, by the officer's own account, "I just watched him. I could see his facial expressions tighten up ...." The defendant was meanwhile protesting in loud and occasionally obscene language (although by some accounts, the protests were initially polite). Finally, the defendant took more direct action, by attempting to knock the flashlight from the sergeant's hands. A melee ensued, during which two of the three officers sustained some injuries and the defendant was beaten with a leather and lead "sap," "possibly" a flashlight and finally, after being handcuffed and held face down on the ground, maced.

The defendant asks that we reverse his conviction for simple assault under 13 V.S.A. § 1023(a). He argues persuasively that the allegedly illegal arrest and search cumulated in an atmosphere of provocation. Furthermore, he argues, this provocative conduct by the Essex Police, against which the defendant's conduct must be viewed, was erroneously removed from the jury's consideration by the jury instructions.

We do not agree with the defendant. Viewing the jury instructions as a whole, State v. Joyce, 139 Vt. 638, 640, 433 A.2d 271, 273 (1981), it is clear that the court was distinguishing between the enhanced crime under 13 V.S.A. § 1028 and simple assault under 13 V.S.A. § 1023. The trial court first carefully and clearly explained each element of a violation of § 1028. As we have in the past pointed out, § 1028 requires that the simple assault of an officer occur "while the officer ... is performing a lawful duty." State v. Peters, 141 Vt. 341, 347, 450 A.2d 332, 335 (1982) (citing 13 V.S.A. § 1028). Peters also holds that the lawfulness of the officer's duty is to be measured against the scope of his employment and not against the ultimate decision regarding the technical legality of the activities in question. The defendant claims that instructing the jury that "none of these acts of search and seizure were in themselves unlawful" removed from the jury's consideration one essential element of the crime. However, the instructions also clearly were that, if the jury found that "the officer himself committed an assault, or used excessive force in dealing with the defendant prior to striking, then he was not performing a lawful duty and you [the jury] must find the defendant not guilty."

In contrast, § 1023, the lesser included offense, only requires that an unjustified assault occur; the lawfulness of the officers' conduct is only relevant to the defense issues of provocation and self defense. We are satisfied that the trial court correctly...