State v. Doleszny, 2004 VT 9 (Vt. 1/30/2004)

• Decision Date: 30 January 2004
• Docket Number: No. 2001-310, November Term, 2003,2001-310, November Term, 2003
• Citation: 2004 VT 9
• Parties: State of Vermont v. John Doleszny
• Court: Vermont Supreme Court

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2004 VT 9

State of Vermont v. John Doleszny

No. 2001-310, November Term, 2003

Supreme Court of Vermont

January 30, 2004

On Appeal from District Court of Vermont, Unit No. 1, Windham Circuit David Suntag, J.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

DOOLEY, J.

¶ 1. The question presented is whether the district court's decision permitting jurors to submit questions for the witnesses in this criminal trial deprived defendant of an impartial jury and a fair trial. For the reasons set forth below, we conclude that the practice of jurors questioning witnesses in the trial court's discretion is permissible. In reaching this conclusion, we join the vast majority of states, federal courts, and commentators that have considered this issue. Accordingly, we affirm the judgment.

¶ 2. The pertinent procedural and factual background may be summarized as follows. In July 2000, defendant was charged with bribing an executive officer in violation of 13 V.S.A. § 1101(a)(1). In a pretrial order, the district court invited the parties to comment on a set of proposed preliminary jury instructions, including an instruction that informed the jurors they could submit questions of their own to the witnesses after the attorneys had completed their examinations. Defendant filed a written motion, objecting to the proposed instruction on the ground that allowing juror questions risked compromising the jury's neutrality and reducing the State's constitutional burden of proving defendant's guilt. The State filed no response.¹

¶ 3. The court denied defendant's motion in a ten-page written decision, concluding that juror questions would "enhance the search for truth without violating Defendant's right to due process," and that defendant's concerns could be adequately addressed through a series of procedural protections. In its decision, the court noted that although defendant had failed to adequately support his claims that there were "compelling circumstances not to allow juror questioning in this case" and that allowing juror questions "will greatly reduce the State's burden to prove its case" both defendant and the State were permitted to "make specific objections to any question." The court then proceeded to deliver the charge as proposed. The instruction informed the jurors that they could seek to have questions of their own submitted to the witnesses after the attorneys had finished asking questions, but cautioned the jurors to exercise the opportunity "sparingly," to limit their questions to "facts," and to "remain neutral and impartial and not assume the role of investigator or advocate." The court explained that it would solicit juror questions after the lawyers had finished with each witness, that the jurors were to write their questions on a piece of paper without identifying themselves, and then give the paper to the court officer. The court warned that it may decide not to ask a question or may ask the question in a modified form because of the rules of evidence or for other reasons, and asked the jurors not to speculate about why a question was not asked, or to hold it against the State or defendant, or to give any more or less weight to a question solely because it was asked by a juror.² Defendant did not place any objection on the record after the instructions were given. The case proceeded to trial. Each side presented one witness. The State called the arresting officer, who testified that he was on patrol on the morning of May 26, 2000, when he observed a tow-truck towing a vehicle without flashing its emergency lights. The officer followed the tow-truck for several blocks in his cruiser, clocked its speed at forty-five miles per hour in a twenty-five mile per hour zone, and signaled the driver to pull over. The officer approached the tow-truck, asked the driver — later identified as defendant — for his license and registration, and informed him that he had been towing a vehicle without emergency lights and speeding. When defendant learned that the officer was preparing a speeding ticket, he pleaded with the officer to cite him for the emergency-lights violation instead in order to avoid the penalty points that accompany a speeding violation. According to the officer, defendant then asked him if there was "any way we can work this out" and the officer asked defendant what he meant. Defendant responded that "he could tow my car for free" and explained that he had towed the Police Department's cars for free in the past. The officer declined the offer, completed the ticket, and followed defendant to the service station.

¶ 4. After the attorneys completed their examinations, the court inquired whether "[a]ny jurors have a question they'd like to put to this witness?" Two questions were submitted. The court convened a bench conference, and defense counsel indicated that she did not object to either question. The State objected on relevance grounds to the second question, which the court overruled. The court then addressed the two questions to the officer, inquiring first whether defendant had specifically "used words about towing a police car or towing your personal car or neither?" The officer responded that defendant had "told me that he could tow my car for me." The second question was "how accurate" the officer considered his assessment of the tow-truck's speed. The officer stated that it was "very accurate." Defense counsel then engaged in a brief re-cross examination, inquiring into the distance required for an accurate determination of a vehicle's speed. The State had no follow-up questions.

¶ 5. Defendant was the only witness for the defense. He acknowledged that he had asked the police officer for a "break" based on the services that he had provided the Police Department in the past. Defendant claimed, however, that he was only attempting to persuade the officer to cite him for failing to illuminate the vehicle's emergency-lights rather than speeding. He denied offering the officer anything in return for his dispensing with the speeding ticket.

¶ 6. When the attorneys had completed their examination of defendant, the court once again inquired whether any of the jurors had questions for the witness. Five questions were submitted. At a bench conference to review the questions, neither counsel objected to the first question, which inquired about the make and model of defendant's tow-truck and the vehicle being towed. Defense counsel objected on relevance grounds to the second question, which was whether the speeding ticket had been paid. The court overruled the objection, observing that it was a "legitimate question . . . [and] doesn't hurt anybody." The next question was why the officer had followed defendant to the garage. The State objected on the basis of relevance but the court overruled the objection. The fourth question was whether or not it mattered that defendant was speeding "from a legal standpoint." The court ruled without elaboration that it would not ask this question. The final question was why defendant had towed police vehicles in the past for free. There were no objections to this question.

¶ 7. The court then addressed the four approved questions to defendant. Defendant, in response, described the make and model of his wrecker and the car he was towing, indicated that the speeding ticket was still pending, stated that the officer had followed him to the garage because a "service engine" light was on in his cruiser, and explained that he had declined to bill the Police Department for services in the past "as a courtesy." The State then re-cross examined defendant, asking why he had not billed the Police Department for services when he had testified that he could not afford to tow the officer's car for free. Defendant responded that it was a general business practice among towing companies. Defense counsel asked several additional questions on re-direct. The State then re-called the officer as a rebuttal witness, inquiring as to the reason that he had followed defendant to the service station. The officer confirmed that it was because of a "check engine" light.

¶ 8. The jury returned a verdict of guilty as charged. The court denied a subsequent motion for new trial, and later sentenced defendant to zero to thirty days, all suspended, and placed defendant on probation. This appeal followed.

¶ 9. Defendant renews on appeal the objections that he raised below to the trial court's decision to allow juror questioning. The State raises a procedural bar at the threshold, however, arguing that the claims were not adequately preserved for review because defendant failed to specifically object on the record to the court's decision to allow juror questioning after the court read the preliminary instructions to the jury. For the reasons stated below, we agree with the State's argument and conclude that defendant needed to object to the preliminary juror instructions to preserve this question for appeal.

¶ 10. This Court has continuously held that litigants must renew objections to instructions on the record in order to preserve the questions for appeal or this Court will review such issues only for plain error. See State v. Tahair, 172 Vt. 101, 104-05, 772 A.2d 1079, 1082 (2001); State v. Carpenter, 170 Vt. 371, 374, 749 A.2d 1137, 1139 (2000); State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992). As stated in Wheelock, the purpose of requiring an objection after jury instructions is to give the trial court a last chance to avoid an error. 158 Vt. at 306, 609 A.2d at 975. Thus, we have viewed the requirement to make a post-charge objection as a bright-line rule, applicable even if the charge issue is discussed and resolved...