State v. Driscoll

• Decision Date: 07 March 1979
• Docket Number: 271-77,Nos. 270-77,s. 270-77
• Citation: 137 Vt. 89,400 A.2d 971
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Gerald DRISCOLL.

Page 971

400 A.2d 971

137 Vt. 89

STATE of Vermont v. Gerald DRISCOLL.

Nos. 270-77, 271-77.

Supreme Court of Vermont.

March 7, 1979.

Gregory W. McNaughton, Washington County State's Atty., Montpelier, and Stephen W. Webster, Orange County State's Atty., Randolph, for plaintiff.

Valsangiacomo, Heilmann & Detora, Barre, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

By agreement, these cases were consolidated for trial before the District Court of Vermont, Unit No. 5, Orange Circuit, sitting without a jury. The court filed findings of fact and conclusions of law and entered an order adjudging the defendant guilty of a misdemeanor in the Washington Circuit case and a felony in the Orange Circuit case. From these judgments, the defendant appeals. We affirm.

On April 14, 1976, the Barre Police Department received a complaint from a local automobile dealer that a black 1976 American Motors Pacer was missing from his back parking lot and that shattered glass was found on the ground in the vicinity of where the car's passenger-side door had been located.

Six days later, Officer West of the Barre Police Department received word of a break-in at Dessureau's Machine Shop. His investigation revealed that a large green milling machine had been stolen sometime between 4:00 p. m. on April 19 and 8:00 a. m. on April 20. Officer West observed and photographed tire tracks thought to be from the truck used to carry that heavy object away. Further investigation established that at approximately 11:30 p. m. on April 19, 1976, one of West's fellow officers made an investigation of a pickup truck stopped on a street in Barre. One of the occupants was working on the truck's rear window because a large green milling machine had slid forward and broken the glass. The truck was driven by its owner, Gerald Driscoll, the appellant in this case. He gave the investigating officer a fictitious address and said that he had purchased the milling machine from a man in Barre.

Officer West, a fellow officer, and a State Police corporal drove to the Driscoll residence in East Randolph, Vermont, and visited with the appellant's wife. West noticed tire tracks similar to those he had observed at Dessureau's Machine Shop and shattered safety glass in the Driscolls' driveway. Mrs. Driscoll refused to consent to a general search of the area, so Officer West and the others returned to the Barre Police Station, and he prepared an application for a search warrant.

The application was presented to a judge of the Washington District Court on the same day. Both the supporting affidavit and oral testimony of Officer West were received. On the basis of the machine shop break-in, the incident involving the appellant's pickup, and Officer West's observations at the Driscoll residence, a warrant was issued to search the Driscolls' property for the purpose of seizing a Bridgeport Milling Machine.

Armed with the warrant, Officer West, accompanied by two fellow officers and two Vermont State Police corporals, immediately returned to the Driscoll residence. Mr. Driscoll was absent.

In the course of the search, West and a fellow officer discovered a passenger-side door to a black 1976 Pacer. The vent window was shattered.

West told the other officers to continue the search, and he drove to the Bethel substation to obtain the stolen Pacer's identification numbers. By the time he returned, other items from the dismantled Pacer had been recovered. Those bearing identification numbers were verified as belonging to the stolen vehicle. These items were then seized.

The police also seized the dismantled body of a blue 1976 Chevrolet pickup truck. At the time of the seizure, they did not know whether the truck was stolen, but they did know that in February a Bradford Chevrolet dealer reported a similar truck stolen.

Following the seizure of these items, the appellant returned home. In the rear of his pickup was a large green milling machine. It was not the machine that had been stolen from Dessureau's. He was given Miranda warnings, and he signed a written acknowledgement of their receipt. He refused to waive his rights, but he asked Officer West if he could speak to him alone. During the ensuing conversation the appellant made some damaging admissions that were introduced at trial over his objection.

On April 21, 1976, the Washington County State's attorney filed an information charging the appellant with receiving the Pacer "knowing the same to have been previously stolen" in violation of 13 V.S.A. § 2561.

On June 11, 1976, the Orange County State's Attorney filed an information charging the appellant with receiving the Chevrolet truck body "knowing the said truck body to have been feloniously stolen in violation of 13 V.S.A. § 2561."

On July 16, 1976, the defendant filed a pretrial motion to suppress the evidence seized in connection with the Washington Circuit information on the ground that the search warrant was issued without probable cause.

The motion was heard on September 9, 1976. The defendant raised several issues. All were rejected and the motion was denied.

Subsequently, the defendant filed a motion to suppress the evidence seized in connection with the Orange Circuit proceeding. No ruling ever was obtained with respect to this motion.

At the trial, the court allowed the defense and the prosecution to stipulate that the record on the Washington Circuit motion to suppress would be a part of the Orange Circuit proceeding as well. The defendant's attorney also indicated his continuing objection to the admission of evidence obtained during the search.

The appellant renews all of the claims he advanced before the Washington District Court at the hearing on his motion to suppress, and he challenges several rulings made by the Orange District Court at his trial. We affirm both courts in every particular.

I.

The defendant first challenged the integrity of the affidavit submitted in support of the application for the search warrant, which stated in part:

While at (the Driscoll) residence I observed tire tracks leading to the buildings in the rear and these tracks appeared the same as the ones that I had observed at scene of the break. I also observed safety glass on the ground which I believe to have come from the broken window of the truck. There was (Sic ) other vehicles in the yard and none of them appeared to have a broken window. I asked permission to look in the buildings and Mrs. Driscoll refused to give me permission.

At the hearing, Officer West testified that Mrs. Driscoll said he could visit the garage, so he went to the door and looked in. It was on the approach to the garage that West observed the tire tracks and safety glass referred to in the affidavit.

Mrs. Driscoll testified that she never gave the police permission to approach the garage. Citing her testimony and the affidavit, the defendant's attorney argued that because Officer West had no right to be in the vicinity of the tire tracks and safety glass, his observation of them violated the defendant's Fourth Amendment rights. Counsel therefore asserted that the reviewing court should disregard those facts in passing on whether there was probable cause for the issuance of the search warrant.

Where factual issues are involved in determining a pretrial motion, V.R.Cr.P. 12(d) requires the court to state its essential findings on the record, State v. Howe, 136 Vt. 53, 386 A.2d 1125 (1978), and the reviewing court complied with that requirement here. While acknowledging "some conflict in the evidence," the court found that Mrs. Driscoll did consent to the officers looking into the garage. The appellant now challenges this finding as not supported by the record.

This Court has not indicated the weight such findings are to be given on appeal. Cf. State v. Murray, 134 Vt. 115, 353 A.2d 351 (1976) (failure of trial court to make findings required by V.R.Cr.P. 12(d) did not preclude review where the parties were in substantial agreement with respect to all relevant facts). In our judgment, the clearly erroneous standard of V.R.C.P. 52(a) is appropriate and we now adopt it for that purpose. Cf. 2 C. Wright, Federal Practice and Procedure § 374, at 18 (1969) (federal courts agree, on matters other than guilt, that "clearly erroneous" standard should apply to findings by the court under Fed.R.Crim.P. 23(c)). The test will be given the same meaning in this context as it has in civil cases. Id.

"The burden was upon the defendant to produce in this Court a record from which it affirmatively appears that error was committed in the court below." State v. Beckenbach, 136 Vt. ---, ---, 397 A.2d 79, 81 (1978). He now relies on ambiguous and allegedly conflicting testimony. If there was a conflict in this evidence, it was for the lower court to resolve. Viewing the evidence in the light most favorable to the State and excluding the effect of any modifying evidence, the challenged finding is not clearly erroneous. See Green Mountain Marble Co. v. State Highway Board, 130 Vt. 455, 296 A.2d 198 (1972). The reviewing court, therefore, did not err by refusing to strike from the affidavit all references to the tire tracks and the safety glass.

II.

We next consider the appellant's contention that the supporting affidavit failed to establish probable cause for the issuance of the search warrant. At the hearing, he challenged the affidavit on three distinct grounds. First, his attorney pointed out that the time of the break-in at Dessureau's Machine Shop was not noted. He argued that time is of the essence in search warrant cases and that the omission in question negated a finding of probable cause because the issuing judge necessarily assumed that the break-in occurred on April 19, 1976. He contended that it is equally possible to assume that the crime occurred prior to April 19 and that the requisite relationship between the break-in and the...