State v. Meyers, 88-415
| Decision Date | 01 December 1989 |
| Docket Number | No. 88-415,88-415 |
| Citation | 569 A.2d 1081,153 Vt. 219 |
| Parties | STATE of Vermont v. James C. MEYERS. |
| Court | Vermont Supreme Court |
Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Craig Cwick, Law Clerk (on the brief), Montpelier, for plaintiff-appellee.
Zuccaro, Willis & Bent, St. Johnsbury, for defendant-appellant.
Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.
Defendant appeals from a conviction, following a jury trial, of careless and negligent operation of a motor vehicle. We affirm.
On September 6, 1987, defendant failed to negotiate a curve in a road with which he was familiar and struck another car approximately thirteen feet across the road's centerline, injuring both himself and persons in the other vehicle. The speed limit on the road was generally fifty miles per hour, but a speed of thirty-five miles per hour was posted shortly before the curve.
Defendant was charged with careless and negligent operation of a motor vehicle pursuant to 23 V.S.A. § 1091(a) 1 and arraigned on October 19, 1987. Initially, defendant was denied the services of a public defender because a prison sentence was not anticipated. In December of 1987, while defendant was still representing himself, the court directed him to provide a list of defense witnesses for the State, warning him that failure to do so risked exclusion at trial of any witnesses not noticed.
On March 9, 1988, defendant was granted public defender services. At a status conference before a new judge on April 6, defendant stated that he needed additional time to depose the State's witnesses and to look into finding an accident reconstruction witness. A second status conference was held on May 4, at which time the court granted defendant's request for additional time to review the deposition of the State's expert with his own reconstruction expert. On May 19, the court denied another request by defendant for a continuance in order to secure an accident reconstruction specialist, stating that the case had already been continued for that purpose and that the time granted to locate such an expert was sufficient. During voir dire on May 24, defendant informed the jury that he might be calling a Mr. Lucas as a witness on accident reconstruction.
Two days later on the morning of the trial, Mr. Lucas inspected the accident site, and defendant informed the court and the State that Mr. Lucas was present in the courthouse and would testify as an expert witness for the defense. After the State requested either an exclusion of the witness or a continuance to examine the witness' proposed testimony, the court directed the State to depose Mr. Lucas to determine whether additional time would be required to prepare for his testimony. The witness could not be located in the courthouse, however, and the court decided to exclude the testimony rather than delay the trial. Later, during the trial, at the suggestion of defense counsel and over the State's opposition, the court agreed to allow defendant's expert to testify that he was an accident reconstruction specialist that he had inspected the scene of the accident, and that he disagreed with the State expert's characterization of the tire marks which led to an estimation of the speed of defendant's vehicle.
At a post-trial conference immediately after the jury returned its guilty verdict, the court directed the State to inform the victim that she could appear the following day to make a victim-impact statement at the sentencing hearing. The court added that it intended to order restitution in the amount not covered by insurance and give defendant a suspended jail sentence. At the hearing the next day, the victim expressed outrage at the tendency of the legal system to ignore the rights of victims while going out of its way to insure defendants' rights, and she implored the court to give defendant the maximum sentence. After listening to statements by the victim, the defendant, and opposing counsel, the court noted several prior traffic violations by defendant, including a DWI conviction. The court ordered defendant to pay restitution in the amount not covered by insurance and serve nine days in jail on consecutive weekends.
Defendant appeals from the conviction and sentencing, claiming that the court erred by restricting the testimony of defendant's expert and by improperly considering the victim's impact statement.
Defendant first contends that the court's refusal to allow his expert to testify that defendant was traveling fifty-five miles per hour rather than seventy-one miles per hour was improper because defendant did not violate any discovery rules and because the exclusion violated his constitutional right to present evidence in his favor. We decline to address defendant's constitutional argument, as it was never argued before the trial court and does not rise to the level of plain error. See State v. Paquette, 151 Vt. 631, ----, 563 A.2d 632, 636 (1989). In light of the fact that the speed of defendant's vehicle was not an element of the crime with which he was charged and that his expert was permitted to give limited testimony disputing the evidence upon which the speed of the vehicle was estimated, we are unable to perceive any extraordinary circumstances that would warrant our considering the issue at this time. See State v. Maguire, 146 Vt. 49, 54, 498 A.2d 1028, 1031 (1985).
Accordingly, the only issue we need address pertaining to the partial exclusion of the expert testimony of defendant's witness is whether the court abused its discretion when it limited the testimony. Pursuant to V.R.Cr.P. 16.1(b), the court may require defense counsel to allow the prosecuting attorney to inspect reports of any experts the defendant intends to use at trial. In addition, V.R.Cr.P. 16.1(c) mandates that defense counsel, upon request by the prosecuting attorney, disclose the names and addresses of any persons who will testify for defendant at trial. Further, a party is under a continuing duty to disclose any additional material or information that is discovered subsequent to initial compliance with Rule 16.1 or a court order. V.R.Cr.P. 16.2(b). Finally, upon learning that a party has failed to comply with discovery rules or orders, "the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances." V.R.Cr.P. 16.2(g).
In the instant case, the court issued a pretrial discovery order several months before trial essentially requiring that defendant abide by Rule 16.1. Defendant contends that his remark during voir dire two days before trial that Mr. Lucas might testify, coupled with the "availability" of his expert on the day of the trial, constitute compliance with the discovery rules and the court's pretrial order. We disagree.
We note initially that the fact that the court's pretrial order was originally issued to defen...
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...a witness “is discretionary and will not be disturbed unless the defendant shows a clear abuse of discretion.” State v. Meyers, 153 Vt. 219, 224, 569 A.2d 1081, 1085 (1989).¶ 50. While acknowledging that Copeland's brother was not on the defense witness list, defendant nevertheless asserts ......
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