State v. Grace

• Decision Date: 18 November 2016
• Docket Number: No. 2015-307,2015-307
• Citation: 2016 VT 113
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Michael Grace

2016 VT 113

State of Vermont v. Michael Grace

No. 2015-307

Supreme Court of Vermont

September Term, 2016

November 18, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Addison Unit, Criminal Division

Robert A. Mello, J.

David R. Fenster, Addison County State's Attorney, and Ashley A. Hill, Deputy State's Attorney, Middlebury, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Marshall Pahl, Appellate Defender, and Kerrie Johnson, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. EATON, J. Defendant appeals from a judgment of conviction of driving under the influence, third offense, in violation of 23 V.S.A. §§ 1201(a) and 1210(d). Among other claims, defendant contends the trial court committed prejudicial error by proceeding with a motion-to-suppress hearing in defendant's absence. We agree, and therefore reverse the order denying the motion to suppress.

¶ 2. This case arose out of a motor vehicle stop that occurred on the evening of November 19, 2013, in the Town of Bristol, and resulted in a charge against defendant of driving under the influence. Prior to trial, defendant moved to suppress all evidence resulting from the stop and detention. The court held a hearing on the motion in March 2015. At the start of the hearing, the court inquired about defendant's absence, and defense counsel informed the court it was "my fault, or at least my office's fault" for failing to inform defendant that he should be there "in person for this." The court inquired whether there was "any issue of the defendant not being here today?" The prosecutor responded, "[a]s far as going forward with the hearing, no, your Honor." The court then reviewed Vermont Rule of Criminal Procedure 43 to "just [to] be sure," noted that it provided that a defendant's presence is not required "at a conference or argument on a question of law," and concluded, "So I don't see any issue." Defense counsel then stated that defendant, "for what it's worth . . . is under waiver of appearance." The court acknowledged the waiver, and proceeded with the hearing. Defense counsel did not object to the hearing proceeding.

¶ 3. Officer Duplissis, a sergeant with the Vermont State Police, was the only witness to testify at the hearing. The officer explained that, on the night in question, he had just finished executing a search warrant at a residence on Route 116 in Bristol when he saw a truck drive by going "clearly in excess of the speed limit" and well over the center line into the other lane. The officer testified that he and another officer entered his cruiser and effected a motor vehicle stop. They then spoke with the driver—later identified as defendant—who acknowledged that he was speeding but explained that he had been followed by another vehicle through town.

¶ 4. Defense counsel cross-examined the officer briefly, questioned him about his location at the time he observed defendant's vehicle, and confirmed that his observation of the vehicle's speed was "purely visual" and not based on the use of a radar gun. Defense counsel then argued that a visual estimate of the vehicle's speed was inadequate to justify the stop, and posited that it was reasonable for a driver, observing several police cruisers on the side of the road, to crossthe center line to give them "a little bit of space." The trial court denied the motion, finding on the record that the officer's training allowed him to make a reasonably accurate estimate of a vehicle's speed, and that there was no basis to support an inference that the vehicle crossed the center line to avoid the parked police cruisers.

¶ 5. The case proceeded to trial, where Officer Duplissis's account of the stop was largely consistent with his earlier testimony. He recalled further that, following the stop, the officers observed a "furtive movement" by defendant and, based on that, ordered him to exit the vehicle. As defendant opened the car door, Officer Duplissis "heard the clink of something metallic landing on the ground" and, concerned that it was a firearm, ordered defendant to show his hands. When he arrived at the vehicle, the officer observed that the object was a black box cutter.

¶ 6. Officer Duplissis then spoke with defendant, who told of being tailgated through Bristol and speeding to get away from the following vehicle. While they were conversing, the officer observed that defendant's eyes were bloodshot and watery. In response to further questioning, defendant initially denied that he had consumed any alcoholic beverages that evening, but later acknowledged that he had a glass of wine. Based on these observations, the officer administered a number of field sobriety exercises, and subsequently arrested defendant for DUI and transported him to the police barracks for processing and blood alcohol testing. The test result was 0.099, which a State chemist calculated to be 0.121 at the time of operation.

¶ 7. Officer Neary, a trooper with the Vermont State Police, assisted with the stop. His account of the stop, detention, and arrest was largely consistent with that of Officer Duplissis, although he also recalled detecting an odor of alcohol from defendant's breath.

¶ 8. Defendant testified on his own behalf. He explained that he was a resident of Ohio but had been visiting his son and brother in Bristol on the day in question. He recalled that he had spent the day hunting but had eaten nothing and had one glass of wine with his son that evening. He stated that, as he was returning through town, he sped up to avoid another vehicle that was tailgating him. He denied, however, that he was speeding or that he had crossed the center line. At the time of the stop, defendant recalled that his vehicle had an Ohio license plate, that he was wearing a flannel with a vest, and had bushy hair.

¶ 9. Defendant's recollection of the events that occurred after the stop differed in several respects from that of the officers. He testified that the officers ordered him to put his hands up and exit the vehicle, and that their guns were drawn as they approached. He recalled that one of the officers then explained that they had just "come off a drug bust," and that the officer then asked defendant "where's the drugs?" and sought permission to search his vehicle. Before performing the field sobriety tests, defendant stated that he informed the officers that he had a bad back. He also testified that his eyes were always bloodshot and watery due to a crushed lumbar in his back for which he was taking medication. Defendant's son testified, as well, corroborating defendant's account of his activities that day, including his claim that he had only a glass of wine before leaving. Called to testify in rebuttal, Officer Duplissis denied that he had ever suspected defendant of possessing drugs or asked him where he kept his drugs, and offered that he had a certified "drug dog" with him during the stop which had stayed in the police cruiser.

¶ 10. As noted, a jury found defendant guilty as charged. He was sentenced to a term of one to three years, ten days to serve, and probation. This appeal followed.

¶ 11. Defendant contends that the trial court erred in proceeding with the suppression hearing in his absence. Absent an objection on this basis, we examine the claim for plain error,which requires the showing of a "glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." State v. Yoh, 2006 VT 49A, ¶ 39, 180 Vt. 317, 910 A.2d 883 (quotation omitted).

¶ 12. "One of the most basic rights guaranteed by the [Sixth Amendment] Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S. 337, 338 (1970). This right is codified in V.R.Cr.P. 43(a), which provides that "[t]he defendant shall be present at the arraignment, at any subsequent time at which a plea is offered, at every stage of the trial . . . and at the imposition of sentence, except as otherwise provided by this rule." In determining the scope of the right, the U. S. Supreme Court has explained that it applies "at any stage of the criminal proceeding that is critical to its outcome" and where the defendant's "presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). The right has been recognized as applicable in any proceeding where evidence is adduced that relates to disputed factual issues critical to the outcome of the case, and the defendant's absence would undermine its fairness and accuracy. See U.S. v. Moe, 536 F.3d 825, 830 (8th Cir. 2008) ("If the proceeding at issue addresses or involves factual questions, it is possible that the defendant's absence would thwart 'a fair and just hearing.' " (quotation omitted)); United States v Clark, 475 F.2d 240, 246 (3d Cir. 1973) ("[W]here . . . there are substantial issues of fact as to events in which the [defendant] participated, the trial court should require his production for a hearing." (quotation omitted)); People v. Dokes, 595 N.E.2d 836, 839 (N.Y. 1992) ("In determining whether a defendant has a right to be present during a particular proceeding, a key factor is whether the proceeding involved factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position.").

¶ 13. Although we have not addressed the issue, these considerations have persuaded the vast majority of courts, state and...