State v. Goyette

• Decision Date: 31 May 1991
• Docket Number: No. 89-440,89-440
• Parties: STATE of Vermont v. Gary GOYETTE.
• Court: Vermont Supreme Court

Page 432

594 A.2d 432

156 Vt. 591

STATE of Vermont v. Gary GOYETTE.

No. 89-440.

Supreme Court of Vermont.

May 31, 1991.

Mark T. Cameron, Windsor County Deputy State's Atty., White River Junction, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

PECK, J.

Defendant appeals from a jury verdict convicting him of possession of cocaine. We affirm.

On September 11, 1987, a confidential informant told Vermont state police that someone from another state ¹ would be transporting cocaine into Vermont, would be staying at the home of Robert Stillwell, and would be taking part in a substantial drug deal the following day. Acting upon this information, a state police officer went to the Stillwell residence, where he observed two out-of-state cars, one registered to Mr. Stillwell's wife and the other registered to defendant.

The next morning, the informant told police that Peter Holl, a man known to police through other drug investigations, would be introducing the out-of-state resident to a suspected drug dealer living in Chester, Vermont. At that point, police set up surveillance at the dealer's residence. That same morning, the surveillance units observed the dealer leave his Chester residence. Shortly thereafter, they observed Holl and defendant arrive, stay approximately two hours, and then depart. Defendant was a front-seat passenger in the car, which was driven by Holl and owned by Holl's girl friend.

The police followed the car after it left the residence and stopped it approximately three or four miles from the dealer's residence. As the police were pulling the car over, two of the police officers noticed defendant duck down as if he were placing or retrieving something from under his seat. When the car was stopped, the police officers ordered the occupants out of the vehicle and immediately seized two bags of what appeared to be cocaine from underneath the front passenger seat. The two occupants of the car were arrested after the cocaine was discovered.

Holl pled guilty to a reduced charge and received a suspended sentence in return for his agreement to testify against defendant. A jury found defendant guilty of possession of cocaine, and he was sentenced to serve thirty months to five years. On appeal, defendant contends that (1) the police lacked probable cause to search the car; (2) the prosecutor elicited exculpatory evidence from a witness under a promise of immunity and failed to reveal the evidence to the defense in a timely manner; (3) a testifying officer wilfully violated the trial court's order prohibiting comment about the existence of a confidential informant; and (4) the trial court erroneously charged the jury that it could infer defendant's knowing possession of cocaine from the fact that he was an occupant of the car at the time the cocaine was found.

I.

Defendant first argues that the court erred in not suppressing the evidence seized from the car because the police lacked probable cause to search the car. Specifically, defendant claims that the search violated V.R.Cr.P. 41(c) and the Fourth Amendment of the United States Constitution because the police had no knowledge of the source of the informant's information. We conclude that the police had sufficient probable cause to search the car.

Under the Fourth Amendment, a warrantless search of a vehicle is valid if based on probable cause. State v. Platt, 154 Vt. 179, 184, 574 A.2d 789, 792 (1990) (citing federal case law). The central inquiry in determining whether there was probable cause for the search of a vehicle is whether the police reasonably concluded that the car contained evidence of a crime. State v. Girouard, 135 Vt. 123, 129, 373 A.2d 836, 841 (1977). While both defendant and the State assume the relevance of V.R.Cr.P. 41, the Rule is inapplicable here because it concerns the criteria for a valid search warrant; it does not concern warrantless searches. See State v. Brown, 151 Vt. 533, 535, 562 A.2d 1057, 1058 (1989).

Under the federal "totality of the circumstances" standard, ² the reliability of the informant and the basis of the informant's knowledge are but two intertwined factors that may be useful in making the commonsense determination of whether, given all the circumstances and information available to the police at the time of the search, there is a substantial basis for the police's belief that there was a fair probability of finding evidence of a crime in a particular place. Illinois v. Gates, 462 U.S. 213, 230, 238, 103 S.Ct. 2317, 2328, 2332, 76 L.Ed.2d 527 (1983). The Court in Gates stated that the failure of a reliable informant to set forth the basis of his knowledge "should not serve as an absolute bar to a finding of probable cause based on his tip." Id. at 233, 103 S.Ct. at 2329. The Court also noted that seemingly innocent behavior might corroborate an informant's tip predicting the behavior, thus providing the basis for a showing of probable cause. Id. at 243 n. 13, 103 S.Ct. at 2335 n. 13. According to the Court, "[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." Id.

This standard is easily met here. ³ In the instant case, a confidential informant who had reliably provided tips on drug transactions in the past stated that (1) an out-of-state resident would be transporting drugs into the state on September 11, 1987; (2) a substantial drug deal would take place the following day; (3) the out-of-state resident would be staying overnight at the home of a man named Robert Stillwell; and (4) Peter Holl, a man known to the police, would be bringing the out-of-state resident to the home of a Chester man, another man known to police from prior drug investigations, in order to complete the drug transaction. Acting on the informant's tip, the police observed that a car with out-of-state plates and not belonging to anyone living at the Stillwell residence was parked at the home of Robert Stillwell. The following day, the surveillance units observed Peter Holl and defendant arrive at the Chester residence where the drug transaction was to take place.

We conclude that police corroboration of the predicted movements, coupled with the fact that police officers observed defendant bend down in the car as if he were placing something under the front passenger seat, was sufficient information for the police to believe at the time of the search that there was a fair probability of finding evidence of a crime in the car. The details provided by the informant were substantial enough, and the actions of defendant, taken as a whole and considering police corroboration of the informant's prediction of these actions, were suspicious enough, for the police to reasonably believe that there were drugs in the car. The court did not err in denying defendant's motion to suppress.

II.

Next, defendant argues that he should be granted a new trial because the prosecutor elicited exculpatory evidence from a witness under a promise of immunity but failed to reveal this information to the defense until after the evidence was closed. Defendant initially sought to depose Robert Stillwell, at whose home defendant stayed the night before he was arrested, but Stillwell's attorney told defendant that Stillwell would invoke the Fifth Amendment in response to questions at the deposition and at trial. Later, the State informed Stillwell, who had been listed as a witness for both the defense and the State, that it would give him use immunity in return for his testimony that he knew defendant and that defendant stayed at his house the night before the arrest. Stillwell stated to the prosecutor that he knew defendant and that defendant had stayed at his house that night. During that conversation, he also stated that he did not believe Peter Holl, who apparently had told police that Stillwell was involved in the drug transaction. Because ultimately defendant did not testify at trial, the State did not call Stillwell as a witness.

Defendant argues that Stillwell's refutation of Holl's story was exculpatory, and that the prosecutor should have turned the information over to the defense. Because we conclude that Stillwell's comments to the prosecutor were not sufficiently material to defendant's guilt, and that the State did not act with the deliberate intention of distorting the judicial factfinding process, we need not consider the broader issue of whether the court should have compelled the prosecution to grant immunity to Stillwell as a defense witness. See State v. Hamlin, 146 Vt. 97, 107-08, 499 A.2d 45, 53 (1985).

The prosecution violates due process when it fails to disclose evidence favorable to the accused and material to the accused's guilt or punishment. State v. Goshea, 137 Vt. 69, 75-76, 398 A.2d 289, 293-94 (1979). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); see Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987). Thus, a conviction should be reversed only if the withheld evidence "creates a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976); see State v. Sird, 148 Vt. 35, 37-40, 528 A.2d 1114, 1115-16 (1987) (discussing development of Agurs-Bagley standard and employing it to analyze claim under Vermont Constitution). ⁴

Upon examining the record, we agree with the trial court that...