State v. Elkins

• Decision Date: 03 August 1990
• Docket Number: No. 88-509,88-509
• Citation: 580 A.2d 1200,155 Vt. 9
• Parties: STATE of Vermont v. Michael J. ELKINS.
• Court: Vermont Supreme Court

Page 1200

580 A.2d 1200

155 Vt. 9

STATE of Vermont v. Michael J. ELKINS.

No. 88-509.

Supreme Court of Vermont.

Aug. 3, 1990.

James A. Hughes, Franklin County Deputy State's Atty., St. Albans, for plaintiff-appellee.

Kurt M. Hughes of Wool & Murdoch, Burlington, for defendant-appellant.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), specially assigned.

ALLEN, Chief Justice.

Defendant appeals from a jury verdict finding him guilty of simple assault on a police officer in violation of 13 V.S.A. §§ 1023(a)(1) and 1028. We affirm.

The parties do not dispute the events preceding the arrival of a Franklin County deputy sheriff at defendant's home. At approximately 10:30 p.m. on a November, 1987 evening, the deputy parked near an intersection and sat in his cruiser running radar and completing paperwork. The radar gun indicated that a vehicle approaching the intersection was speeding. The vehicle turned onto the road where the cruiser sat and in so doing crossed the center line of the road. The deputy activated the cruiser's blue lights and pursued the vehicle. After a short distance, the vehicle turned into the driveway of a residence. As the deputy approached the residence, he obtained a general description of defendant whom he observed getting out of the vehicle. Defendant walked toward the screened-in portion of the residence. The deputy pulled the cruiser with blue lights flashing in front of the house, got out, and yelled for defendant to stop. Defendant hesitated for a moment, and then proceeded into the house. The deputy radioed the state police barracks for a license and registration check on the vehicle, but did not wait for the response.

The deputy entered the porch through the screen door and knocked on the interior door of the house. Defendant came to the door, and when the deputy stated that he wished to speak to defendant about his operation of the vehicle, defendant asked if the deputy had a warrant. The deputy informed defendant that he had witnessed the violation of two motor vehicle laws and need not obtain a warrant before questioning him. Defendant became increasingly irritated with the deputy's polite but persistent questioning and the continued flashing of the cruiser lights in front of the house. Defendant's wife approached and said that she was the vehicle's driver. The deputy, however, remained unconvinced. After putting on his shoes, defendant followed the deputy out onto the front lawn to continue the discussion.

Once outside, the confrontation escalated. Defendant demanded that the deputy turn off the blue lights "or else he would blow them off." In an effort to calm defendant, the deputy turned to extinguish the cruiser lights. The deputy testified that he then saw defendant reach behind his back. The deputy turned back toward defendant and began to ask him to keep his hands in plain view. Before the deputy could get the full words out, defendant swung his arm around and struck the deputy's left eye causing pain. The deputy then grabbed defendant. The two fell against the house and then to the ground as they grappled. Defendant sustained a broken leg in the fall.

Defendant's evidence painted a different picture of the events that transpired upon the deputy's arrival at the residence. Defendant, his wife, and his son testified that defendant closed the door on the deputy after the deputy refused to explain what he wanted to discuss with the driver of the vehicle. The deputy, however, continued to bang on the door and again asked to speak with the driver of the vehicle. Again, defendant demanded to know the reason for the inquiry. This time the deputy explained that he had witnessed the vehicle swing wide on the turn coming into town. Defendant then donned his shoes and accompanied the deputy to the front lawn. The impasse, however, continued, and defendant never admitted that he was the vehicle's driver. Defendant denied swinging at the deputy or hitting him in any way, but told the deputy he would not answer any more questions and was going to bed. As defendant began to turn to go back into the house, the deputy tackled defendant and the two fell to the ground in front of the porch.

The court denied defendant's motion for judgment of acquittal. The jury found defendant guilty of simple assault on a police officer.

Defendant raises the following arguments on appeal: (1) the deputy was not performing a lawful duty within the meaning of 13 V.S.A. § 1028; (2) the trial court erred in its instructions regarding defendant's right not to answer questions posed to him by the deputy; (3) the court committed plain error in its instructions on reasonable doubt; (4) the court erred in failing to grant defendant's motion for acquittal because there was insufficient evidence that defendant purposefully assaulted the deputy; (5) the court erred in failing to order a new trial; (6) the misconduct committed by a prosecution witness constituted prejudice that required the court to grant a mistrial. We reject each of these arguments and affirm.

I.

Defendant contends that his entry into his residence ended the deputy's lawful duty and left the deputy without authority to proceed onto defendant's property. Therefore, defendant argues that the State could not prove that the deputy was assaulted while performing a lawful duty, an essential element of the charge. ¹

"13 V.S.A. § 1028 makes the offense of simple assault, 13 V.S.A. § 1023, a different and more serious crime when inflicted upon a police officer performing a lawful duty." State v. Fuller, 146 Vt. 364, 365, 503 A.2d 550, 551 (1985); see also State v. Peters, 141 Vt. 341, 347, 450 A.2d 332, 335 (1982) (essential element of the offense that the assault occur while the officer is performing a lawful duty).

The deputy's observations of defendant's driving provided him with a reasonable suspicion that defendant had committed two motor vehicle violations. Therefore, the deputy had the authority to make an investigative stop. State v. Paquette, 151 Vt. 631, 634, 563 A.2d 632, 635 (1989). A police officer may conduct an otherwise valid investigative stop in the semiprivate areas within the curtilage that comprise the normal access route for anyone visiting the premises. See State v. Ryea, 153 Vt. 451, ---, 571 A.2d 674, 675 (1990) (Fourth Amendment does not absolutely protect the curtilage; therefore police officer could conduct an investigative stop in the residential driveway of a person suspected of driving with a suspended license); State v. Byrne, 149 Vt. 224, 228, 542 A.2d 276, 278-79 (1988) (state officials could investigate game violation from the steps and walkway of a home). In People v. Kozlowski, 69 N.Y.2d 761, 505 N.E.2d 611, 513 N.Y.S.2d 101 (1987), a police officer investigating a reported traffic incident made a warrantless entry onto the defendant's property. The officer walked onto the porch, opened the screen door to knock on the front door, and then banged loudly to summon the defendant/driver. The officer readily observed the symptoms of intoxication and placed the defendant under arrest after he admitted he had been drinking and had been involved in the reported accident. The New York Court of Appeals explained that the officer reached the "defendant's front door by the means defendant had made available for public access to his house, and did not intrude into any area in which defendant had a legitimate expectation of privacy." Id. at 763, 505 N.E.2d at 612, 513 N.Y.S.2d at 102. The Court of Appeals held that "[a]bsent evidence of intent to exclude the public, the entryway to a person's house offers implied permission to approach and knock on the front door," and therefore the police could utilize that access for the purpose of making inquiry. Id. at 763, 505 N.E.2d at 612-13, 513 N.Y.S.2d at 102-03.

We agree with the reasoning of Kozlowski regarding the propriety of the deputy's actions in the instant case. The deputy saw the vehicle's driver enter a residence. The deputy acted within his authority to conduct an investigation by approaching the house, knocking on the door, and asking to speak to the driver of the vehicle. See State v. Pike, 143 Vt. 283, 287-88, 465 A.2d 1348, 1351 (1983) (front porch is part of the normal route of access for anyone visiting the premises); State v. Sanders, 374 So.2d 1186, 1189 (La.1979) ("It is an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be approached and the occupants summoned to the door by knocking."). ² Therefore, it was possible for the State to prove that the deputy was performing a lawful duty when he was assaulted.

The result would not change even if the deputy's actions contravened the Fourth Amendment's prohibition against unreasonable search and seizure. ³ In a 13 V.S.A. § 1028 prosecution, 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." State v. Desjardins, 142 Vt. 255, 258, 454 A.2d 1230, 1231 (1982); see also State v. Fuller, 146 Vt. at 366, 503 A.2d at 551 (even if officer illegally recorded the defendant's telephone conversation, the officer was not taping at the critical time--when the assault took place). The lesser included offense, 13 V.S.A. § 1023, requires only that an unjustified assault occurred and § 1028 enhances the penalty if the defendant assaults a police officer in the performance of a lawful duty. Therefore, the lawfulness of the deputy's conduct has relevance only to the defense issues of provocation and self-defense. Desjardins, 142 Vt. at 259, 454 A.2d at 1231.

II.

Defendant contends that the court erred by failing to instruct the jury that they were to "draw no conclusions adverse to the defendant based on his refusal to answer questions." The court, over the timely objection of defendant,...