State v. Gilman, 83-360

• Decision Date: 31 August 1984
• Docket Number: No. 83-360,83-360
• Citation: 145 Vt. 84,483 A.2d 598
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Jody A. GILMAN.

Page 598

483 A.2d 598

145 Vt. 84

STATE of Vermont v. Jody A. GILMAN.

No. 83-360.

Supreme Court of Vermont.

Aug. 31, 1984.

William S. Bos, Windsor County State's Atty., and Shelley A. Hill, Deputy State's Atty., White River Junction, for plaintiff-appellee.

Bruce M. Lawlor and Deborah S. McCoy, Springfield, for defendant-appellant.

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

HILL, Justice.

The defendant appeals her conviction for driving while under the influence in violation of 23 V.S.A. § 1201(a)(2). We affirm.

The defendant's first argument on appeal is that the State failed to prove beyond a reasonable doubt that the arresting officer, Roland Daniels, Jr., was certified by the Vermont Criminal Justice Training Council (Council) as a full-time law enforcement officer. The defendant claims that if Mr. Daniels was not properly certified, he was not authorized to arrest the defendant, so that the arrest was illegal and in violation of the defendant's due process rights.

In reviewing the defendant's claim on appeal, we must determine whether the evidence, when viewed in the light most favorable to the State, was sufficient to convince the jury that Officer Daniels was a law enforcement officer whose arrest of the defendant was valid. See State v. Derouchie, 140 Vt. 437, 445, 440 A.2d 146, 150 (1981) (the test for reviewing the sufficiency of the evidence on appeal is "whether the evidence, when viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt").

At trial, Officer Daniels testified that he had been a police officer in Georgia, and was certified in that state as an officer. He stated that when he moved to Vermont the Council exempted him from the minimum training requirements of 20 V.S.A. § 2358 ^*. Daniels testified that he attended several training courses in Vermont and was given a Certificate of Completion of Training by the Vermont Criminal Justice Training Council. Although the State did not introduce this certificate at trial, defense counsel admitted in his brief on appeal that the State had supplied the defense with a copy of the certificate. Finally, Daniels testified that he was paid by the town of Hartford, Vermont, as a full-time officer.

Viewing the above evidence in the light most favorable to the State, we conclude that the State produced sufficient evidence to convince the jury beyond a reasonable doubt that Officer Daniels is certified as a full-time police officer. We therefore reject the defendant's argument.

The defendant next contends that the trial court erred in prohibiting her from testing Officer Daniels' truth and veracity through the combined use of a pending civil action against Daniels alleging brutality and Daniels' affidavit of probable cause in that civil suit. The defendant asserts that she should have been allowed to show that Daniels is an untruthful person by pointing out that the plaintiff in the civil action alleged that Daniels beat him during an arrest but that Daniels failed to include this information in his affidavit of probable cause. The defendant claims that she could have used the inference that Daniels lied in that affidavit to impeach the part of Daniels' affidavit in her case that was inconsistent with her testimony at trial.

The State contends that use of the complaint and affidavit in the civil action to imply untruthfulness on the part of Officer Daniels in the case at bar is logically untenable. We agree, and hold that the trial court did not abuse its discretion in prohibiting the defendant from using the allegations and affidavit in the pending action to impeach Officer Daniels. State v. Berard, 132 Vt. 138, 147, 315 A.2d 501, 508 (1974) (discretion of trial court in allowing examination on collateral issues depends on remoteness of the issue).

The defendant's third argument is that the trial court erred in admitting information concerning her weight because such information was obtained in violation of her Fifth Amendment right against self-incrimination.

The defendant was given her Miranda warnings when she was arrested and she requested an attorney. Once a defendant indicates that he or she wishes to speak with an attorney, the police may not ask the defendant any more questions. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); State v. Hohman, 136 Vt. 341, 351, 392 A.2d 935, 941 (1978). In this case, however, Officer Daniels asked the defendant to tell him her weight. Daniels testified that this information is important in a DUI arrest because it is used by the chemist in determining the percentage of alcohol in the defendant's blood.

We do not reach the issue of whether Officer Daniels' question violated the defendant's Fifth Amendment right against compelled self-incrimination, because we hold that the defendant has waived this argument. The defendant should have moved, prior to trial, to have the evidence of the defendant's weight suppressed on the ground that it was illegally obtained. V.R.Cr.P. 12(b)(3)...