State v. Lee, 07-334.

• Citation: 2008 VT 128,967 A.2d 1161
• Decision Date: 10 October 2008
• Docket Number: No. 07-334.,07-334.
• Parties: STATE of Vermont v. Kevin LEE.
• Court: United States State Supreme Court of Vermont

967 A.2d 1161

2008 VT 128

STATE of Vermont v. Kevin LEE.

No. 07-334.

Supreme Court of Vermont.

October 10, 2008.

Christopher C. Moll. Lamoille County Deputy State's Attorney, Hyde Park, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. After a jury trial in Lamoille District Court, defendant was convicted on a third offense of driving under the influence of alcohol (DUI), giving false information to a police officer, and attempted simple assault. On appeal, defendant argues: (1) the court's decision to play a videotape of defendant invoking his right to silence violated the Fifth Amendment to the Federal Constitution. Article 10 of the Vermont Constitution, and related statutory rights; (2) the court erred in failing to voir dire the jurors to determine if any had seen defendant on a video monitor while he was shackled; (3) the court erred in permitting two police officers to sit in an unused jury box during the trial; (4) the court failed to follow Vermont Rule of Criminal Procedure 24(d) in impaneling the jury; and (5) the court violated defendant's right to testify by not informing him of that right and depriving him of it without an effective waiver. We affirm.

¶ 2. The facts may be briefly summarized as follows. Defendant got into an altercation in the parking lot of Cumberland Farms in Morrisville, Vermont. Police officers arrived at the scene and arrested defendant. At the police department, defendant was placed in a holding cell. Defendant's questioning was videotaped, and a portion of the tape was shown to the jury during the trial.

¶ 3. Defendant was charged with DUI, in violation of 23 V.S.A. § 1201(a)(2), operating with a suspended license, 23 V.S.A. § 674(b), attempted simple assault, 13 V.S.A. § 1023(a)(1), and giving false information to a law enforcement officer, 13 V.S.A. § 1754(a). In addition, the State charged that defendant had been convicted of DUI seven times in the past and sought to have defendant adjudicated a habitual offender, pursuant to 13 V.S.A. § 11.

¶ 4. Prior to trial, the court impaneled a jury of fourteen persons, explicitly deciding not to designate two of them as alternates at that point. The court explained that the two alternates would be selected by lot and dismissed just before the jury retired to deliberate. Defendant did not object to this procedure.

¶ 5. During the morning of the trial's second day, counsel for defendant alerted the court that several jurors might have seen defendant on a television monitor being led into court in shackles. Defense counsel moved for a new trial because of this incident, and the court denied the motion.

¶ 6. Also during the trial, two plain-clothes officers were sitting in a second jury box, located across the courtroom from the jury box used during the trial and in the direct line of sight of the jurors. Defense counsel argued that the jury would infer that the plain-clothes officers were guarding defendant and conclude that defendant was incarcerated during the trial, a conclusion that would prejudice them against him. He sought a mistrial on this basis; the trial judge denied the motion.

¶ 7. The jury convicted defendant of DUI. attempted simple assault, and giving false information to a police officer. Thereafter, on proof of the former DUI convictions, the jury found that defendant was a habitual offender. Defendant moved for a new trial, and the court denied his motion.

¶ 8. After the verdict, defendant also moved to dismiss his counsel for multiple reasons, including that "[c]ounsel refused [to allow] the defendant to testify on his own behalf." The court never acted on this motion because defendant withdrew it. Defendant never asserted before or during the trial that he was being denied his right to testify. This appeal followed.

¶ 9. Defendant's first argument on appeal is that the court erred in allowing the State to play a videotape of defendant in a holding cell wherein he invokes his rights to speak with an attorney and to not respond to questions posed by a police officer. We note that the parties originally disputed what part of the videotape had been played to the jury. The transcript showed that a part of the marked tape was shown to the jury, but neither the parties nor the court specified what part. The parties have now stipulated to the portion shown to the jury. We request that our civil and criminal rules advisory committees propose a draft rule amendment for criminal and civil cases to provide a clear record for appeal of what the fact-finder has seen and heard if a video or audio recording is submitted as evidence.

¶ 10. We have reviewed the portion of the videotape on which defendant's argument relies.¹ On the video, defendant is in a holding cell while an officer explains his rights to him from a standard-form DUI processing sheet. During this explanation defendant shouts obscenities at the officer. He stops and remains silent at about the time the officer asks whether defendant has understood the rights that were explained to him. Although the officer asks this question multiple times, defendant does not answer. Nor does defendant answer the question "Do you want to talk to me now?" Defendant argues that his failure to answer the latter question was an invocation of his right to remain silent and that it was an error of constitutional magnitude to show the tape of defendant invoking his right to silence to the jury.

¶ 11. At the outset, we note that this argument was not preserved in the district court. The State introduced the tape to show intoxication, and the court admitted it for that purpose. Defendant did not challenge the admission of the videotape in his new-trial motion. In the absence of preservation, we can reverse the court's decision only if it was plain error. State v. Oscarson, 2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337. "Plain error exists only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is a glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) (quotation omitted).

¶ 12. We find no plain error in the court's decision to allow the jury to see the video. Defendant relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and two Texas cases. Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991), and Fierro v. State, 969 S.W.2d 51 (Tex.App.1998), to argue that showing a video of defendant invoking his right to silence was a violation of his constitutional rights and plain error. In Doyle, the State used defendant's failure to explain his conduct, following Miranda warnings, as evidence that the explanation he gave at trial was invented. The Court held that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Doyle, 426 U.S. at 618, 96 S.Ct. 2240. Following Doyle, we have held that it was error to allow testimony that a defendant asserted his right to silence. State v. Percy, 149 Vt. 623, 627, 548 A.2d 408, 410 (1988); State v. Mosher, 143 Vt. 197, 205-06, 465 A.2d 261, 265-66 (1983). In Mosher, for example, the State solicited an officer's testimony that after the defendant was given Miranda warnings, the defendant did not provide an explanation when confronted with the confession of his friends. During closing arguments, the prosecutor suggested that the defendant should have given the story he gave at trial in response to police questioning. We held this was a violation of the defendant's constitutional rights, because the State used the defendant's silence in an attempt to prove his guilt. 143 Vt. at 206, 465 A.2d at 266.

¶ 13. In Doyle and Mosher, the prosecution used each defendant's invocation of a right to silence to prove the defendant's guilt and impeach his testimony. Doyle, 426 U.S. at 611, 96 S.Ct. 2240; Mosher, 143 Vt. at 204-06, 465 A.2d at 265-66. The same is true of the Texas cases on which defendant relies. See Hardie, 807 S.W.2d at 322 (holding that evidence of the defendant invoking his right to counsel is inadmissible "as evidence of guilt"); Fierro, 969 S.W.2d at 54-55 (stating that an audio recording of the defendant invoking his right to counsel and to remain silent is inadmissible as evidence of guilt). In the present case, by contrast, the videotape was introduced to show defendant's behavior as evidence that he was intoxicated. We recognized this distinction in State v Voorheis, where the prosecution allegedly commented on the defendant's right to silence in the following manner: (1) by a police officer testifying that the defendant initiated a conversation with the officer after the defendant had initially indicated he did not want to give a statement; and (2) after defendant testified that a witness blackmailed him into having sex with her, the prosecutor asked whether the testimony was the first time that defendant had told anyone about the blackmail. 2004 VT 10, ¶¶ 17-19, 176 Vt. 265, 844 A.2d 794. We noted that in neither instance was the prosecution claiming that defendant's silence showed his guilt, that the prosecution drew no attention to the testimony, and that the trial court stated that it would be surprised if any juror noticed the prosecution's question or its significance. Id. ¶ 19. We concluded "these comments are not even remotely similar to the extensive, direct references to defendant's invocation to his right to silence that we have previously held unconstitutional." Id. Thus, we found no constitutional violation.²

¶ 14. If anything, this is a clearer case than Voorheis. Assuming that the jury could understand the words...