State v. Keiser

• Citation: 807 A.2d 378
• Decision Date: 28 June 2002
• Docket Number: No. 01-132.,01-132.
• Parties: STATE of Vermont v. Wolf KEISER.
• Court: United States State Supreme Court of Vermont

807 A.2d 378

STATE of Vermont v. Wolf KEISER.

No. 01-132.

Supreme Court of Vermont.

June 28, 2002.

William H. Sorrell, Attorney General, and John Treadwell and David Tartter, Assistant Attorneys General, Montpelier, for Plaintiff-Appellee.

Devin McLaughlin and Christopher Davis of Langrock Sperry & Wool, Middlebury, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

Defendant Wolf Keiser appeals the judgment of the district court and its subsequent orders denying his motions for judgment of acquittal and for a new trial following a jury verdict finding defendant guilty of leaving the scene of an accident, fatality resulting, in violation of 23 V.S.A. § 1128(c). On appeal, defendant contends: (1) the trial court issued an erroneous instruction regarding constructive knowledge in response to a jury question; (2) the trial court erroneously declined to include defendant's requested additional instruction in response to the jury question; (3) the trial court committed plain error by failing to instruct the jury that Vermont's hit-and-run statute requires actual knowledge that the accident involved a person or property of another; (4) the jury verdict is not supported by the evidence at trial; (5) the trial court improperly admitted evidence of defendant's past DWI convictions; and (6) the trial court's sentence of ten to fifteen years to serve violates the proportionality clause of the Vermont Constitution and is an abuse of the court's discretion. We affirm.

In the early morning of September 12, 1999, while defendant was driving back to his home from a friend's house, he heard and felt an impact to the right side of his vehicle. His passenger's side windshield cracked in a spider web formation, and, according to him, he stopped his car, backed up, and got out to see what he had hit or what had hit him. Defendant testified that he found nothing, and then traveled to his home, retrieved a flashlight, and returned to the accident site to see if he had hit anything. Again, he found nothing, and returned home.

Defendant's car had struck Joshua Welch, who was thrown to the side of the road. The impact occurred between 12:00 and 1:00 a.m. The victim was found at roughly 10:00 a.m. the next morning by two women who were on a walk. He was taken to the hospital, where he died on September 13 from multiple head injuries.

The State charged defendant with leaving the scene of the accident, fatality resulting. See 23 V.S.A. § 1128(c). At the close of evidence the court gave instructions to the jury on the elements of the charged crime. During deliberations the jury returned the following question regarding the court's instruction on one of the knowledge elements of the crime: "Did Wolf have to know he hit a person or did he have to think or suspect he hit a person. . . according to the law?" (Emphasis in original.)

After discussion with counsel, the court issued the following reply:

The State does not have to prove that the defendant had actual knowledge that a person had been injured. The State can meet its burden of proof with regard to the element of knowledge of the resultant injury if it proves that, after conducting a reasonable investigation, a reasonable person would have anticipated injury to another person. This is what is called "constructive knowledge" that I described to you in the Jury Instructions.

In so doing, the trial court declined to issue defendant's requested instruction informing the jury that it could not find defendant guilty if it determined that defendant merely thought or suspected that he hit a person. The jury returned a guilty verdict on February 12, 2001. Defendant was sentenced to ten to fifteen years. He now appeals. We address his arguments in turn.

I.

Defendant's main contention centers on whether the above instruction was an erroneous response to the jury's inquiry. Defendant first argues that the court misconstrued the duties of 23 V.S.A. § 1128(a), by including a reasonable investigation requirement in its constructive knowledge instruction. The language "after conducting a reasonable investigation," defendant argues, created an affirmative duty to stop and investigate an accident regardless of whether a person has actual or constructive knowledge of injury to either the person or property of another. The State argues not only that the supplemental instruction was within the letter of the law, but also that defendant did not preserve his right to appeal on this issue because he did not object after the instruction was given to the jury.

A.

As a threshold matter, therefore, we must determine whether defendant properly preserved this issue for appeal. The State correctly argues that, in general, objecting before instructions are issued to the jury is insufficient to preserve the issue for appeal; counsel must object after they are given to the jury. See State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992) ("According to V.R.Cr.P. 30, as interpreted in our cases, failure to object to an instruction after it is given to the jury is considered a waiver of any error even if the substance of the objection is made known before the jury charge."); see also State v. Tahair, 172 Vt. 101, 104-05, 772 A.2d 1079, 1082 (2001). This case, however, involves a supplemental instruction issued to the jury in response to a jury question given to the court during deliberations. The context differs from the circumstances at the conclusion of the initial charge to the jury, at which point counsel's obligation to object is well defined, see Wheelock, 158 Vt. at 306, 609 A.2d at 975. We have yet to address the question of whether counsel must renew an objection after a supplemental instruction. Cf. Reporter's Notes, V.R.Cr.P. 30 (noting that rule does not apply to "such further instructions as the jury may require after it has retired").

Questions from a jury during its deliberations should be disclosed to counsel and counsel given an opportunity to be heard before the trial judge responds. Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); United States v. Ronder, 639 F.2d 931, 934 (2d Cir.1981). A party's objections to the court's response to a jury question must be stated with specificity. See State v. Covino, 163 Vt. 378, 380-81, 658 A.2d 916, 918 (1994). The primary purpose of requiring a timely and specific objection is to give the trial court the opportunity to avoid or correct an error. See Wheelock, 158 Vt. at 306,609 A.2d at 975. In the supplementary context, when objections are specifically stated, this concern is adequately addressed by objecting before the court addresses the jury. If the parties have been given an opportunity to review the proposed instruction and to argue their objections, the trial court has been afforded adequate opportunity to respond to any alleged error. To require counsel to again object after a single supplemental instruction in order to preserve the issue is ordinarily unnecessary given the narrow scope of the instructions.

A review of the record in this case shows that the court did give both parties notice of the jury's question and an opportunity to participate meaningfully in the court's response. During the colloquy, after the court distributed the proposed instruction, defendant did object to the reasonable investigation language. ("And just so the record is clear, we object to the insertion of a reasonable investigation requirement. We don't think it is required under the law of Sidway.") Prior to the defense counsel's formal objection, there had been a lengthy dialogue with the court in reference to the constructive knowledge supplemental instruction and specifically the requirement of the reasonable investigation. State v. Sidway, 139 Vt. 480, 431 A.2d 1237 (1981), was identified by both parties and the court as the case on point. There was a noted disagreement between defendant and the court as to whether this Court in Sidway found a duty to conduct a reasonable investigation after an accident, independent of the driver's knowledge of injury to another person or property. After going back and forth on the topic, the court made it clear that the supplemental instruction's language "after conducting a reasonable investigation" was proper. Because of this dialogue and the clearly noted objection given by defendant's counsel, we find the issue was properly preserved for appeal.

B.

We now turn to whether the trial court's supplemental instruction on constructive knowledge was an erroneous response to the jury's inquiry. Defendant asserts that the lower court confused the jury with its answer to their question on the issue of constructive knowledge by conflating a defendant's duties once knowledge of an accident and injury are established with the inquiry of whether knowledge has in fact been established.

Title 23, § 1128 provides in relevant part:

The operator of a motor vehicle who has caused or is involved in an accident resulting in injury to any person other than the operator, or in damage to any property other than the vehicle then under his or her control shall immediately stop and render any assistance reasonably necessary. The operator shall give his or her name, residence, license number and the name of the owner of the motor vehicle to any person who is injured or whose property is damaged and to any enforcement officer.

Vermont's "hit-and-run" statute, as pointed out in Sidway, is to prohibit drivers of motor vehicles from seeking to evade civil or criminal liability, and from leaving persons injured, abandoned and in need of first aid or medical care. Sidway, 139 Vt. at 484,431 A.2d at 1239; see also State v. Severance, 120 Vt. 268, 272-73, 138 A.2d 425, 428 (1958). The statute imposes a duty on operators to take affirmative action by stopping to give aid and information. Sidway, 139 Vt. at 484, 431 A.2d at 1239; Severance, 120 Vt. at 273,138...