State v. Massey

• Decision Date: 16 April 1999
• Docket Number: No. 97-541.,97-541.
• Citation: 730 A.2d 623
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Edwin J. MASSEY.

730 A.2d 623

STATE of Vermont v. Edwin J. MASSEY.

No. 97-541.

Supreme Court of Vermont.

April 16, 1999.

Dan M. Davis, Windham County State's Attorney, and James E. Maxwell, Deputy State's Attorney, Brattleboro, for plaintiff-appellee.

David A. Gibson, Brattleboro, for defendant-appellant.

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

MORSE, J.

Defendant, Edwin James Massey, appeals his conviction for violating 23 V.S.A. § 1201(a) operating a motor vehicle on a public highway while under the influence of intoxicating liquor. Defendant contends that the trial court erred by: (1) failing to suppress statements he made while in custody for processing; (2) failing to declare a mistrial or provide a limiting instruction to the jury after defendant testified about the results of a roadside breath test (alcosensor); (3) admitting the results of a Data-Master breath test; and (4) limiting the jury's consideration of the issue raised by defendant that the police prevented or denied him from obtaining an independent blood test. We affirm.

In the town of Rockingham at approximately 1:00 p.m. on the afternoon of November 13, 1996, defendant drove his truck off of the road and into a telephone pole. The weather was clear and the road conditions were good. The impact severed the pole and brought power lines down across the road. Two law enforcement officers from the Vermont State Police arrived at the scene shortly after the accident.

The first officer smelled alcohol on defendant's breath, observed defendant's slow, deliberate movements, bloodshot eyes, and noticeable confusion when walking near the downed power lines. There was no apparent reason for the accident other than driver impairment, although defendant claimed that he lost control of his truck while lighting a cigarette. The officer administered a roadside alcosensor breath test, the results of which fortified his belief that defendant was under the influence of alcohol. In accordance with V.R.Cr.P. 3(a)(5) (Cum.Supp.1998), the first officer took defendant into custody and transported him to the police barracks for an infrared breath test (DataMaster).

On the way to the police barracks, defendant made a number of unsolicited statements to the police that were admitted into evidence at trial. The officer testified that he did not believe defendant was sincere when he stated, "You guys are great. You guys are special," and then told the officer that he couldn't do their job because he would be tougher than they were being with him.

At the barracks, defendant telephoned an attorney and agreed to take the Data-Master test. After the test was administered but before the results were obtained, defendant exclaimed "I didn't have a drink today. I told you that before." Then he said "I want a blood test. I'm not answering any questions." The test results indicated a blood alcohol content (BAC) of .195 percent. During the course of processing, the officer provided defendant with information regarding an independent test: "Since you are being released, if you wish additional tests to be paid for at your own expense, you will have to make your own arrangements. Do you intend to obtain additional tests?" In response to defendant's affirmative answer, the officer gave him a blood test kit and a list of facilities where he could go to obtain the independent test. Defendant was then permitted to make phone calls to secure a ride from the barracks. Defendant was unable to arrange a ride. At approximately 3:45 p.m., roughly an hour after the processing concluded, the second officer offered defendant a ride home, and he accepted. The second officer testified at trial that he and defendant had a lengthy conversation in the police cruiser and that defendant never indicated that he wanted to be taken to a facility for a blood test.

At trial, defendant argued that the Data-Master results were flawed. He first claimed that he had been cleaning his house with ammonia and bleach earlier that day and that the resulting lung irritation may have led to the positive test. Defendant then questioned the procedures the officer followed in administering the test, including whether he had followed procedures recommended by the Vermont Criminal Justice Training Council (the Council) in its officer training manual. The procedures for administering the DataMaster test that appear on the driving under the influence (DUI) processing form mirror the guidelines promulgated by the Council in the manual. The manual states that officers should observe subjects for fifteen minutes prior to the test and recommends that the officer check the subject's mouth for foreign objects. The manual also states that officers should avoid handling the mouthpiece on the DataMaster and that the machine should be located on a flat, sturdy surface.

Defendant maintained that the officer failed to observe him for fifteen minutes prior to the test and failed to mark the appropriate box on the processing form noting the observation period. Defendant also claimed that the officer did not check his mouth before the test. Defendant highlighted the lack of evidence that the DataMaster machine was located in a place at the Rockingham barracks that followed the Council recommendations and similar lack of evidence that the officer handled the mouthpiece properly. Additionally, defendant pointed out that while the officer was certified to administer the Data-Master in 1989, he had neither performed the test on a suspect, nor received any recertification training since then. Defendant asserted further that the officers failed to transport him to a facility to get an independent test.

Over defense objection, the court admitted the results of the DataMaster. The court rejected defendant's arguments that the Council training procedures govern admissibility and that the test should have been suppressed because the officers effectively prevented him from obtaining an independent test. Defendant also objected to the admission of the statements that he made to the officer while en route to the police barracks. Defendant moved for a mistrial, and in the alternative, for a limiting instruction, when he testified about the alcosensor test result and the State referenced it during closing argument. The court denied defendant's motions, and the jury returned a guilty verdict.

I.

Defendant contends that the trial court committed error by admitting the statements he made following his arrest and during the time he was in custody for processing. Defendant claims that these statements could not be used against him since the officer had not provided Miranda warnings or any notice that what he said could be admitted in court. Defendant argues that, where police do not interrogate a suspect but hold him in custody to obtain an evidentiary breath sample, simple fairness requires that he be informed that anything he utters may be used at trial.

Defendant argues that our holding in State v. Forcier, 162 Vt. 71, 643 A.2d 1200 (1994), should be extended to require officers, acting under the version of V.R.Cr.P. 3(a)(5) in effect in 1996, to inform suspects that anything they freely volunteer may be used against them in court. In Forcier, we held that statements made after a Miranda waiver during interrogation while defendant was in custody under V.R.Cr.P. 3(a)(5) (Cum.Supp.1996) for the "limited purpose of obtaining a sample of breath or blood" were inadmissible. Forcier, 162 Vt. at 74, 643 A.2d at 1201 (quoting V.R.Cr.P. 3(a)(5), which has since been amended by the legislature and no longer contains this language; see 1997, No. 117 (Adj.Sess.), § 30). There, defendant, after waiving his Miranda warnings, responded to police interrogation while at the barracks. The interrogation yielded "substantial incriminating evidence" against the defendant. Id. at 73, 643 A.2d at 1201. We held that the officers in Forcier, even after obtaining a Miranda waiver, were not authorized under V.R.Cr.P. 3(a)(5) to interrogate defendant, and the statements made in response should have been suppressed by the trial court. See id. at 77, 79, 643 A.2d at 1203.

We decline defendant's invitation to extend the holding in Forcier. In that case, we were merely giving effect to the intent as demonstrated by the plain meaning of the rule. Besides, defendant's statements such as "you guys are great, you guys are special" did not contain an admission that he was intoxicated, but were verbal acts prejudicial to him as behavior tending to show that he was intoxicated. The statements evidenced defendant's bravado and lack of inhibition. Therefore, the statements had independent legal significance and were admissible. See United States v. Trapnell, 495 F.2d 22, 24 (2d Cir.1974) (statements made to psychiatrist tending to show that defendant acted rationally were verbal acts not protected by Fifth Amendment).

II.

Defendant maintains that 23 V.S.A. § 1203(f) (Cum.Supp.1998) bars the admission of the alcosensor test result. He further contends that his own testimony recounting the officer's statement concerning the alcosensor result was inadmissible hearsay. See V.R.E. 801(c). Defendant testified on direct examination:

[The officer] wanted to go ahead and have me blow into one of these portable machines, like to see if you're intoxicated. I said "okay" and he asked me if I'd mind, and I said, "No, I don't mind." I blew into it and he holds it like this... he says, "It's point two zero four (.204)." I said, "Damn it all, I want another test. This is impossible. I never had a drink this morning. And that's the truth."

The State referenced this testimony in a question to its expert witness:

We're now at about ... 1:30, as Mr. Massey has testified, he is given the prearrest Alcosensor, and he's described to us what that is that [the officer] used, held up and said it's a point two zero four (.204) or whatever Mr. Massey testified to.

An hour later he's

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