State v. Kennison

• Decision Date: 07 August 1987
• Docket Number: No. 84-283,84-283
• Citation: 546 A.2d 190,149 Vt. 643
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Robert L. KENNISON.

Page 190

546 A.2d 190

149 Vt. 643

STATE of Vermont v. Robert L. KENNISON.

No. 84-283.

Supreme Court of Vermont.

Aug. 7, 1987.

Motion for Reargument Denied Oct. 2, 1987.

Stay of Mandate Denied May 3, 1988.

Helen V. Torino, Franklin County State's Atty., St. Albans, for plaintiff-appellee.

Martin & Paolini, Barre, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, ^* JJ.

HILL, Justice.

After a trial by jury, the defendant appeals his conviction on two counts of aggravated assault and raises five issues for resolution by this Court. We affirm.

I.

Defendant first contends that his state and federal constitutional rights to counsel were violated when the trial court issued a post-arraignment nontestimonial order for a blood sample without giving defense counsel notice of, nor an opportunity to be heard on, the application. The undisputed sequence of events with respect to this issue, as it appears from the record before this Court, is of some importance.

On November 14, 1983, the State applied for, and subsequently received, a nontestimonial identification order from the lower court pursuant to V.R.Cr.P. 41.1 ¹ to draw blood from the defendant, who was represented by counsel. Although notice was not given to defense counsel of the application, reasonable notice was given to him prior to the execution of the order as required by V.R.Cr.P. 16.1(a)(2). ² Now defendant, for the first time, argues that there was error in the application process, while at the same time conceding that he failed to move to suppress the evidence gathered during the execution of the nontestimonial identification procedure--namely, the blood sample.

It is well established law that any objections to evidence seized pursuant to V.R.Cr.P. 41.1 should be raised through a motion to destroy or suppress. ³ V.R.Cr.P. 41.1(1). Moreover, this Court has made it clear that " '[t]he duty to exclude objectionable data lies squarely upon the shoulders of defense counsel.' " State v. Kasper, 137 Vt. 184, 190, 404 A.2d 85, 89 (1979) (quoting United States v. Castenada, 555 F.2d 605, 610 (7th Cir.1977)). Further, if grounds to suppress are known to the party prior to trial, a motion to suppress must be raised pretrial. V.R.Cr.P. 12(b)(3). In the instant case, no motion to suppress defendant's blood sample was made at any time, despite defense counsel's knowledge of the order before it was executed, and that the blood sample was damning evidence of defendant's guilt of the aggravated assaults.

Under most circumstances, this Court is not bound to address issues raised on appeal "that were not objected to or otherwise raised at trial." State v. Mecier, 145 Vt. 173, 177, 488 A.2d 737, 740 (1984); V.R.Cr.P. 52(b). Thus, we will not consider defendant's claims that his state and federal constitutional rights to counsel were violated unless he can establish the existence of plain error. Mecier, 145 Vt. at 178, 488 A.2d at 741.

We are not persuaded that the use of evidence derived from defendant's blood sample ordered taken in an ex parte hearing was "plain error" which would compel review by this Court. Specifically, the defendant urges that the granting of the State's application under Rule 41.1 without notice to counsel and an opportunity to be heard violated his right to have counsel present during all critical stages of the criminal proceedings against him, as guaranteed by the Sixth Amendment of the U.S. Constitution ⁴ and Chapter I, Article 10 of the Vermont Constitution. ⁵

It is axiomatic that plain error is that error which is " 'so grave and serious as to strike at the very heart of a defendant's constitutional rights or adversely affect the fair administration of justice.' " State v. Messier, 146 Vt. 145, 158, 499 A.2d 32, 42 (1985) (quoting State v. Mecier, 145 Vt. at 178, 488 A.2d at 741. While defendant is correct in asserting that the right to counsel is a fundamental right, and that the denial of that right strikes at the very heart of the state and federal constitutional rights to counsel, he is incorrect in claiming that the right to counsel is constitutionally mandated at a nontestimonial identification procedure such as the one here. The United States Supreme Court and this Court have both noted that the taking of nontestimonial identification evidence--such as blood--is not a "critical stage" at which the right to counsel attaches. United States v. Wade, 388 U.S. 218, 227-28, 87 S.Ct. 1926, 1932-33, 18 L.Ed.2d 1149 (1967); State v. Howe, 136 Vt. 53, 63-64, 386 A.2d 1125, 1131 (1978). The Wade court reasoned:

[Preparatory steps in the Government's investigation such as analyzing of] fingerprints, blood sample, clothing, hair [are not] critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables and techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses.... The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial.

Wade, 388 U.S. at 227-28, 87 S.Ct. at 1932-33.

In addressing the same issue presented here--the validity of a Rule 41.1 order which was granted ex parte and without notice to defense counsel--this Court, in Howe, examined defendant's claim under both the Sixth Amendment and Chapter I, Article 10 of the Vermont Constitution. The Court reasoned that: "[i]f, as Wade holds, the preparatory steps of actually taking physical evidence are not 'critical stages' of the proceedings, it would seem to follow that the procedures seeking authority for such taking, necessarily prior to the actual taking, are also not 'critical.' We so hold." Howe, 136 Vt. at 64, 386 A.2d at 1131. Given the identical nature of the claim presented in Howe, and its sound rationale, we are compelled to decide this case similarly. Accordingly, we hold that the ex parte granting of a Rule 41.1 order for a taking of a blood sample does not violate defendant's right to counsel as guaranteed by the Sixth Amendment, and Chapter I, Article 10 of the Vermont Constitution, and therefore is not plain error.

II.

Defendant next contends that his state and federal constitutional rights to compel evidence in his own behalf ⁶ were violated when the trial court excluded testimony regarding other people who had talked about being interested in robbing the victims in this case. Additionally, defendant claims error in the prosecution's closing argument. We address these claims in the order presented.

A.

At trial the defense attempted to introduce the testimony of a public defender, who was initially assigned, and later withdrew, from defendant's case. The defense sought to establish that the defendant was not the individual who had stabbed the two victims, the "Greenwood brothers." At trial, the public defender was called as a defense witness and asked the following question: "Was there a time at which you became aware of a scheme to rob the Greenwood brothers that did not involve [the defendant]?" The public defender refused to answer the question on the basis of the attorney-client privilege. Defense counsel then asked the court, in front of the jury, "to order him to answer the question." The court refused, basing its decision on V.R.E. 502 and 512, and instructed the jury to disregard the question.

Defendant asserts that the court committed error when it refused to compel an answer from the public defender without first requiring him to meet his burden of establishing the existence of the attorney-client privilege. ⁷ Since this Court has not addressed this specific issue, we are guided by the rule applied by the Second Circuit in United States v. Stern, 511 F.2d 1364 (2d Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 47, 46 L.Ed.2d 46 (1975). The court there held that "[t]he burden of establishing the existence of an attorney-client relationship rests on the claimant of the privilege." Id. at 1367.

In order for a claimant to succeed on his claim of privilege, he is obliged to prove that he falls within the scope of that privilege. Id.; see also 2 J. Weinstein & M. Berger, Weinstein's Evidence p 503(a)(1) (1986). Vermont Rule of Evidence 502(b), which sets forth the general rule of privilege in Vermont, states in part:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative,....

V.R.E. 502(b).

In this instance, proper invocation of the privilege required an offer of proof by the claimant of the privilege, here the public defender witness, that the response sought by defense counsel was a "confidential communication" within the meaning of V.R.E. 502(b). The public defender, however, made no showing that his answer would reveal a privileged communication. Without his offer of proof, we are left in the dark as to whether the public defender properly claimed the attorney-client privilege.

We can only guess as to whether his response would have revealed a confidential communication between him and a client. "When this Court is left in a position where it must speculate as to the basis upon which the trial court reached its decision, we will refuse to so speculate." Roy's Orthopedic, Inc. v. Lavigne, 142 Vt. 347, 350, 454 A.2d 1242, 1244 (1982). The claimant of the attorney-client privilege has the burden of proving that he falls within the ambit of the privilege, and the trial court's failure to request that...