State v. Nicasio, 55-77
| Decision Date | 04 April 1978 |
| Docket Number | No. 55-77,55-77 |
| Parties | STATE of Vermont v. Fred Daniel NICASIO. |
| Court | Vermont Supreme Court |
Dale O. Gray, Caledonia County State's Atty., and Louis J. Cattani, Deputy State's Atty., St. Johnsbury, for plaintiff.
Arthur H. Johnson, St. Johnsbury, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
In a rather unique case, respondent Nicasio was tried below on two informations, one charging him with grand larceny of a motor vehicle under 13 V.S.A. § 2501, and the other with burglary in the nighttime, in violation of 13 V.S.A. § 1201. He was acquitted on each charge, but on the first he was found guilty of operating an automobile without the consent of the owner, under 23 V.S.A. § 1094. On the second, he was found guilty of unlawful trespass under 13 V.S.A. § 3705. In each instance, by court instruction, the conviction was for a lesser included offense. V.R.Cr.P. 31(c); State v. Margie, 119 Vt. 137, 140, 120 A.2d 807, 809 (1956). Respondent appeals each conviction upon the ground that his motions for acquittal should have been granted, and the further ground that an admission by him was improperly received into evidence instead of being suppressed on his motion therefor. We consider first the motions for judgment of acquittal, because if granted they would be completely dispositive of the case.
The first conviction, that for operating a motor vehicle without the consent of the owner, gives us little pause. It was improperly submitted for the consideration of the jury. It is not necessarily included within the greater offense, grand larceny of an automobile, with which the respondent was charged. Operation, or causing to be operated, is an essential element of the statutory offense created by 23 V.S.A. § 1094; conviction under that statute, without that element, is not supportable. But it is not an essential element of 13 V.S.A. § 2501, which punishes stealing from the actual or constructive possession of another money, goods and the like over $100.00 in value. Common knowledge confirms that there are many ways of stealing a motor vehicle without operating it or causing it to be operated. Every day we see vehicles being towed upon our highways. Drive-away rigs, capable of transporting several vehicles at once, frequent our roads. Transportation of one vehicle upon another is far from uncommon. There is no identity between the two offenses; asportation does not necessarily involve operation or driving. State v. Corrolla, 113 Conn. 103, 154 A. 152 (1931); Ashby v. State, 24 Ala.App. 466, 136 So. 483 (1931); State v. Jackson, 101 Ariz. 399, 420 P.2d 270 (1966); People v. Thomas, 58 Cal.2d 121, 23 Cal.Rptr. 161, 373 P.2d 97 (1962); State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967); Tillman v. State, 82 Okl.Cr. 276, 169 P.2d 223 (1946). Contra, State v. Hawkins, 203 N.W.2d 555 (Iowa 1973). The record leaves us in some confusion as to whether this issue was squarely presented to the trial court, but we deem it of sufficient magnitude for notice here in any event, under V.R.Cr.P. 52(b) and State v. Morrill, 127 Vt. 506, 253 A.2d 142 (1969), as "plain" or "egregious" error. The conviction below for operating a motor vehicle without the consent of the owner cannot stand; it could not stand even had there been evidence of actual operation, because the offense is not one necessarily included within the offense charged in the State's information. The motion for judgment of acquittal should have been granted, and we grant it here.
The second conviction, for unlawful trespass, requires more analysis. Essentially, the offense involved was the taking of a Porsche automobile from a dealer's lot, after respondent's companion, one Bowden, had forced entry into the garage and stolen a set of keys. Considering the evidence in the light most favorable to the State, and without the admission by respondent that was objected to, the evidence of respondent's active participation was far from overwhelming. He did not enter the building; he claimed that he tried to dissuade Bowden; he remained some distance away during the entry, "ducking" when headlights approached. He entered the car and rode with Bowden after Bowden had stolen it; he joined in an attempt to leave their college in the Porsche. From this the State argues that the jury was justified in finding that respondent was not only present at the scene, with knowledge of Bowden's criminal objective, but was also guilty of "participation in its accomplishment to some substantial measure," thus making him an accessory before the fact, punishable as a principal under 13 V.S.A. § 4. State v. Sears, 130 Vt. 379, 382, 296 A.2d 218, 220 (1972); State v. Orlandi, 106 Vt. 165, 170 A. 908 (1934). State v. Mecier, 126 Vt. 260, 227 A.2d 298 (1967), is distinguished because the respondent there had no knowledge of his companions'purpose and did nothing to render assistance therein. Here, the State argues, upon the totality of the evidence the jury was justified in finding that respondent, even with qualms about the project, elected to act as a "lookout" rather than abandoning the project as he could have without consequences. The question is a close one, but we are inclined to agree. Much of the evidence was highly circumstantial, but the "ducking" was admitted by the respondent in a statement received in evidence without objection. We find no error in submission to the jury of the lesser included offense of unlawful trespass, entering a building other than a residence whose normal access is locked, and no error in denying respondent's motion for acquittal. This conviction would be sustainable absent error in the reception of the admission complained of.
Two grounds of error are assigned in the refusal to suppress admissions of the respondent, made to a state police officer. The first is constitutional, violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its...
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State v. Picknell
...with 13 V.S.A. § 5234(a)(2) requires suppression of statements obtained as a result of such noncompliance, see State v. Nicasio, 136 Vt. 162, 166, 385 A.2d 1096, 1099 (1978), defendant concludes that the subsequent statements obtained at the police station were The obligation of Vermont law......
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...id. at 264-65, 356 A.2d at 542, the Public Defender Act imposes additional statutory requirements. See, e.g., State v. Nicasio, 136 Vt. 162, 165, 385 A.2d 1096, 1098 (1978) (Act requires notification of public defender if defendant has no attorney and has not effectively waived the right to......
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...if the accused did not have an attorney and did not effectively waive his right to one. 13 V.S.A. § 5234(a)(2); State v. Nicasio, 136 Vt. 162, 165, 385 A.2d 1096, 1099 (1978), overruled on other grounds by State v. Savo, 139 Vt. 644, 433 A.2d 292 (1981). The court found that detention had c......
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...mitigated by the "plain error" doctrine. See, e.g., State v. Bonilla, 144 Vt. 411, 416, 477 A.2d 983, 986 (1984); State v. Nicasio, 136 Vt. 162, 164, 385 A.2d 1096, 1098 (1978), overruled on other grounds, State v. Savo, 139 Vt. 644, 647, 433 A.2d 292, 294 That doctrine provides "[p]lain er......
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